Relationship between Thomas and Edward - Essay Example

?Land Law The main problem in this study is poor relationship between Thomas and Edward due to poor neighborliness etiquette. The beginning of this is when Edward warned tom about encroaching on the property and Thomas responded rudely, since then the relationship between the two has been bad and unfriendly. However, legally Thomas is on the wrong for illegally encroaching on the council’s land, which now belongs to Edward. However, he has legal grounds to reverse this decision according to the law. Encroaching is the act of something or someone illegally crossing and occupying another person’s land. The most common form is when a neighbor builds an establishment that crosses onto another person’s land although most severe scenarios the neighbor treats someone else land as if it were their own. In our case, Thomas built the garage before Edward bought the land but even then, Thomas was still encroaching on the council’s land even though they did not feel like taking any action against him. When Edward bought the property and he wants his fence to go through the right boundary, Thomas has no grounds to refuse him. The Land Registry Act public guide 19 states that in the interest of good relations between neighbors, "It is best to record the agreement formally. You can do this ... by setting your agreement down in a formal document" and they are referring to the case of boundary agreements. Thomas has the knowledge on where the boundary lies due to the formal agreement under existence since they bought the land from the previous owner. However, if the council land was unregistered, the law legislation LA 1980 s. 17, states that as far as the current squatter has been on the land for a long period of time (up to 12 years) and the land has been under good use, then he or she is supposed to request for a registration through the law. In Powell v McFarlane, Slade J it was alluded that the issue of land ownership could have been through a concept known as factual possession. Under such circumstances, the owner has a near exclusive control over the given parcel of land. The ownership at such times includes physical control. In terms of intrusion into a piece of land, it is apparent that the ownership cannot be claimed by two parties concurrently. Consequently, it ought to be acknowledged that the real control in terms of physical use lies in the terms that suit the prevailing circumstances. The considerations in such situations entail having an evaluation of what the parcel of land is used for in terms of commercial exploitation. In the case of Thomas and Edward, Edward was aware of Thomas’s long possession of the land under which he built the garage. Encroachment has numerous forms but only two countermeasures, legal hearing or ejectment. The decision that this case will take, is dependent on the two affected neighbors. In case they decide to go to court, each of them has a right to the land as the next if the land was unregistered and it is under proof beyond reasonable doubt. However, if the land belonged legally to the council and proper documents produced then Edward has the right to own the land. The twist comes in if Thomas decides he wants the land as well under the limitation act. If Thomas decides to pursue the land’s interest under claim of adverse possession, then he is liable to get it according to the law. Section 15(1) of the limitation acts(LA 1980) if a person encroaches on another person’s land and the latter is notified, the right to claim any legal action expires after 12 years since the owner got the information pertaining to this encroachment. Edward notified the council on Thomas’ encroachment but they did nothing and the countdown began in 1996 when Edward reported. However, in Buckinghamshire County Council v Moran, Slade LJ explained the concept of ‘adverse’ in reference to the possession of any parcel of land. This must bear relevance to the act that was passed in the 1980s. This is better explained through the quote "If, therefore, a person occupies or uses land by license of the owner with the paper title and his license has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title." [1990] Ch. 623, 636. Therefore in the case Thomas and Edward, Thomas was not building on the land under legal agreement from the council therefore his claim on adverse land possession is valid. In a court of law, if Thomas claims that the boundary be set according to his specifications in order to accommodate his garage the court would rule in his favor. Under the law, Edward would be trespassing if he put up his fence since he would lose all interest claims to the land. It is against the law to keep this information from him as his counsel. The best solution for Edward is to make peace with Thomas in order for the two to reach an agreement on Thomas’s garage. Edward also has no right to pursue the council for selling him this land since he had the knowledge of the period that Thomas has been an illegal occupant and still went on to buy the land. Even though the piece of land has its registration to the council, legally under the limitation act the land belongs to Thomas. If Edward wants to take action, he has to make sure that Thomas does not apply for registration and object to the application. His claim should be that he bought the land using his money and the council owes him for fraudulent sales, but no attempt to remove Thomas’ garage ought to be under implication so despite the threats by Dodge, Spittle & Co the best resolution would be mediation. As a trained mediator, as well this is the advice I would give to Edward who has the most to lose if this case goes to litigation. Bibliography Books Kevin Gray . land law 2nd edition2003 (pg. 75). Roger Sexton land law 6th edition 2006(pg. 485). Marisca Janine legalizing land rights 7th edition 2008( pg 194) Elizabeth Cooke, Land Law, Clarendon Law Series 2006 (Page 205-219) Articles Land Registry Practice Guide 5 – Adverse possession of (1) unregistered land (2) registered land where a right to be registered was acquired before 13 October 2003 Legislation Limitation Act 1980 - Schedule 01 Paragraph.8 (4), Section 15, Section 17, Section 32(4) Land Registration Rules 1980 – section 15(1) Statutory Instruments Land Registry Public Guide19 – Title and Boundaries Para2 Land Registry Practice guide40 - Para.3.1 Cases Slade J: Powell v McFarlane (1977)38, P&CR, 452 at P.471 approved in J A Pye (Oxford) Ltd v Graham [2002], UKHL, 30 Buckinghamshire CC v Moran (1990) CH.63 approved in J A Pye (Oxford) Ltd v Graham [2002], UKHL, 30 Web Sites http://www.landregistry.gov.uk/professional/guides/practice-guide-40s4 http://www.icsm.gov.au/cadastral/Fundamentals_of_Land_Ownership_Land_Boundaries_and_Surveying.pdf http://www.boundary-problems.co.uk/boundary-problems/ag_det_bdy.html http://www.legalanswers.sl.nsw.gov.au/guides/neighbours/ http://www.wisegeek.org/what-is-property-encroachment.htm http://www.realestatelawyers.genesislawfirm.com/property-encroachment-attorneys-everett-wa-snohomish-co-seattle-king-co http://real-estate-law.freeadvice.com/real-estate-law/real-estate-law/encroachment-neighbors.htm http://www.abdn.ac.uk/law/documents/maciej_tomszak.pdf http://www.attorneywdkickham.com/lawyer-attorney-1301270.html http://www.landregistry.gov.uk/professional/guides/practice-guide-5 http://www.legalanswers.sl.nsw.gov.au/guides/neighbours/trees.html http://worldlii.austlii.edu.au/au/journals/UWALawRw/2006/3.pdf Read More