Land Law of the United Kingdom - Essay Example

?Running Head: LAND LAW Land Law of the United Kingdom of the of the Land Law of the United Kingdom Land law of the United Kingdom can be explained as the law of real property in England and is a significant aspect of society and its people. Land law can be further elaborated under the context of the statement, “of course it is necessary for conveyancing to be made as easy as possible, and for purchasers to be protected. However, this should not be at the expenses of beneficial interests”. For explaining this statement in relation to land law of the UK, actual occupation, Williams & Glyn's Bank v Boland (1981), City of London Building Society v Flegg (1988), Land Registration Act 2002 Schedule 3, Para 2, LRA 1925 s.70, Lloyd's Bank v Rosset (1991), Stack v Dowden (2007) and Jones v Kernott (2012), all will be employed in detail. In accordance with the law of land of the United Kingdom, if a land is not registered, an occupant can acquire the title by way of adverse possession over period of time. It can be done via combination of positive effect of the adverse possession, which gives the occupant’s title but the negative effect of the Land Act 1980 extinguishes the documentary1. Actual occupation indicates effective physical control over the land or property. It shows exclusive occupation. Though singly, but on behalf of several occupants. Hence, the owners of the land and the intruders cannot be the occupants of the vacant land at the same time. Here, the question arises what act determines sufficient degree of exclusive physical control, which must be based on the circumstances. Besides the particular of land in nature and the way it is commonly enjoyed, it is true that everything is based on some specific situation. In a broad term, alleged occupants who have been dealing with the land might have the right to deal with and no other occupant is authorized to get it done. If the land was previously vacant ground depicting strong evidence of actual possession, it is neither indispensable nor conclusive2. Land Registration Act 2002 According to the Land Registration Act 2002, Schedule 3, Para 2, interests of persons in actual occupation states that an interest belongs at the time of disposition property to a person in actual occupation when he or she is in actual occupation following certain conditions3. The person should have interest under the Settled Land Act 1925, interest of a person against whom inquiry was made before the disposition, interest belongs to a person whose occupation was not clear, person to whom the disposition was made was not aware of the factual position and leasehold estate granted to take effective possession, could not effectuate at the time of disposition4. In the recent development, the judicial authority of the House of Lords conferred to the newly established Supreme Court. If we look at the judgment of Manchester City Council v Pinnock and Hounslow LBC v Powell, the Supreme Court tried to move on to a new path by realizing the importance of human in land law. Public body should not eject an occupier of land if it is disproportionate to do so5. In the case of Berrisford (FC) v Mexfield Housing Co-operative Ltd, the Supreme Court again considered an appeal of eviction keeping in minds that Ms. Berrisford had entered a mortgage under a scheme where against, she sold her house to a housing co-operative. The co-operative society at that time allowed her to remain in the same house. The co-operative took plea that its agreement with the inhabitant did not create a lease. The Supreme Court was of the view that Ms. Berrisford had a lease for life; hence, she could not be removed from her existing place6. The mentioned decision of the apex court of the United Kingdom was widely welcomed by the legal fraternity and the people alike. Take the example of Stack v Dowden, wherein the House of Lords held that determination of an ownership in the property as far as the domestic background is concerned based on the common intention of both the parties. In the case of Jones v Kernott, the Superior Court gave meaningful clarification with regard to ‘homes’ that merits special treatment to tackle the issue with common intention. Now the question is that can it be included by the parties or imposed by the court7. This critical issue has been discussed that can be divided into academic opinion and the Supreme Court. As per the legislation of UK, all registered land shall qualify for overriding interests for the time being. Such interests shall not be considered as encumbrances within the ambit of land act. It gives the occupant’s drainage rights, customary rights, rights of sheep walk, rights of water courses, rights of public and other facilities required to be protected by way of notice on the register. The act of Liability is imposed in respect of sea and river walls. Payments for the redemption of rent charges are subject to the provisions of this Act, rights are acquired or in course of being acquired under the Limitation Acts. Rights of every occupant are not disclosed8. The mentioned act empowers rights of effective registration. The act in question provides rights under local land charges unless and until, it got registered on the register in the prescribed manner. Rights of fishing are granted to all descriptions and franchises. Leases are granted for a term not exceeding twenty-one years. Before the commencement of land act, rights to mines, minerals and other rights are required for the purpose of giving full effect to the enjoyment of rights of property where the title was first registered. According to Coal Industry Act 1994, any interest or right, which is an overriding interest, can benefit the occupant9. It provides a cushion to the occupants of the property to satisfy the registrar that any land that is registered with them is exempted from land tax, rent charges are payable for the redemption of rent charges. In the mentioned scenario, the registrar may notify the fact on the register in the prescribed format. If, on the occasion of first registration, it adversely affects the land, the registrar shall enter a note thereof on the register. Wherein overriding interest contained in the cited satisfies the registrar, he or she may enter claim thereto on the register, but no right or privilege shall be noted against the title to the proprietor of such land that indicates ample cause10. However, neither or nor subsection of this section shall be applicable in the case of PPP lease. Williams & Glyn's Bank v Boland (1981) To understand the land law of the UK, we have to look at the case of Mr. Michael Boland and his spouse Julia Sheila Boland who lived on Ridge Park, Beddington Surrey. As per the official record, Mr. Boland, was the registered owner of the house who borrowed money from the bank. Later on, he failed to repay the instalments, resultantly, the bank sought possession. Mrs. Boland took the plea that since she had paid considerable amount towards appropriation of loan, therefore, she should be allowed to live in the same home. The bank was of the view that she did not qualify for property right since the doctrine of conversion only allowed her to get some share of her husband. Secondly, the bank got its charge registered whereas the right of Mrs. Boland was not registered. Hence, she cannot claim the unregistered right in actual occupation11. In the case of Williams & Glyn's Bank v Boland (1981), Justice Temple man held that Mrs. Boland did not fall within the definition of actual occupation in accordance with the act since her occupation was confined only to the extent that she accompanied her husband. Therefore, the claim of spouse of Mr. Boland cannot be considered12. She filed an appeal against the judgment of trial court in the Court of Appeal. The competent court held that lady in question was the real occupant under section 70(1)(g) of the Land Registration Act 1925, therefore, she had an overriding interest in mortgaged property. The bank took plea that wife’s interest could only be considered as minor interest, hence she should not be treated the actual occupant of property held by the bank. Justice Lord Denning while announcing the judgment remarked that the spouse treated stripped bare by the House of Lords in the case of National Provincial Bank Ltd. vs. Ainshorth. City of London Building Society v Flegg [1988] Take another case of Mr. and Mrs. Maxwell Brown who bought Bleak House in the year 1977 to the tune of 34,000 pounds sterling. Out of 34,000 pounds sterling, 17,000 pounds were funded by Mrs. Maxwell Brown and the remaining was funded by Mr. & Mrs. Flegg simultaneously. However, the house was registered in the names of Mr. & Mrs. Brown and they held the legal title for sale of property. Mentioned persons occupied the house. Later on, Fleggs and the Maxwell Browns occupied the house, which is violation of trust, mortgaged to City of London Building Society. The Fleggs had no knowledge about using property by Maxwell Browns to get money for their own purpose. The Maxwell Browns were unable to pay the amount therefore, were declared as defaulters. City of London Building Society took legal action for the possession of Bleak House13. The Fleggs took the plea that they had an interest in the property since they had contributed in purchasing the property and this gives them overriding interest under section 70(1)(g) Land Registration Act 1925. The reason being that at the time of purchase of property, they were in occupation of the said property. The City of London Building Society was of the opinion that the Flegg’s interest had been eroded since the said society paid the capital to two trustees. The decision of the trial court was reversed by the Court of Appeal. The aforementioned aggrieved persons filed an appeal to House of Lords against the decision of Court of Appeal. Lloyds Bank v Rosset [1991] In accordance with the plaint, Mr. and Mrs. Rosset had bought Farmhouse on Manston Road, in Kent, with the family trust money of Mr. Rosset. The trustees of the trust insisted upon Mr. Rosset to be the sole owner of the property as a condition of taking trust money. Later on, he invested on the renovation of the house. Whereas Mrs. Rosset made no contribution for the renovation of the house. However, she had contributed substantial amount on the decoration of the house and spared her time to assist in building works. She got possession of home on 7th November 1982 and until 23rd November, no contract was made. The husband secured loan from Lloyd's Bank by mortgaging the house. On 14th December, the charge was executed and completion took place on 17th December. The charge got registered on 7th February 1983. Mr. Rosset became a bank defaulter. The bank in question sought the possession of the mortgaged house. Mrs Rosset. took plea that since she stayed in the house, she should have consented with regard to the mortgaged property despite that she had an overriding interest on the mortgaged property. In accordance with the Land Registration Act 1925 of section 70(1)(g) now known as LRA 2002 Schedule 3, paragraph 2, the bank's interest followed her. The bank did not accept the plea of Mrs. Rosset and contended that she had no right on the mortgaged property since that the work done by her on the property was not enough to qualify her for an equitable proprietary right14. The Court of Appeal was of the opinion that Mrs. Rosset was in effective possession of her home. Justice Nicholls held that the common intention with regard to share in the property was obvious, since she was in actual possession on the mentioned date. Actual possession does not require presence of the survivor physically in the said house. Daily visit of the house was sufficient to meet the occupational requirement. The Lord Justice was of the view that the meaning of actual occupation itself determines equitable rules and occupant’s interests should not be jeopardized.15 While filing an appeal by the defendant bank, the upper house of the legislature held whether the lady in litigation was in occupation under LRA 1925 section 70 that was created on 17th December. It did not mean that Mrs. Rosset had no beneficial interest in the property. There were no discussions to this effect. The work done by the said gentle lady did not take enough to meet the requirement of constructive trust16. The judgement of Lord Justice was a historical judgment. He was of the view that any express agreement, she could neither have a share, nor have any contributions in respect of purchase price, could establish no right in the home. The case of Lloyds Bank plc v Rosset put under immense criticism of the public for failing to realize that the work done by the lady in her house might create and equitable interest in a family house. In otherwise situation, where there is no evidence available to support a finding of an agreement, though reasonable might have been for the parties to reach an arrangement provided that they should apply their minds to the question. The court must rely on the conduct of stakeholders, which infer common intention to share the property beneficially. Their conduct gives rise to constructive trust. Under the situation, contributions to the purchase price by the partner, who has no legal entity initially or by payment of instalments towards mortgaged property, thus justify the necessity to create a constructive trust17. Take the examples of cases giving rise to aforementioned scenario in the first category are Eve’s v Eves and Grant v Edwards. In both the mentioned cases where the parties cohabited without marriage, wherein the fair sex had been clearly led by the male partner believing that they will set up home together and that the property would be in both names. In the case of Eves, the male partner told the female partner about the reason as to why the property was to be obtained in his own name only since she does not qualify in accordance with law of land being at the age of 21 years. The intention of acquiring land in his own name was just for her age issue. Otherwise, the house should have been in both names. Lord Justice was of the view that he admitted it in evidence being simply an excuse as in the case of Grant v Edwards, wherein the female partner was told by the male partner for not acquiring the property in joint names just because the divorced proceedings are in the process18. If the property was acquired jointly, this may harm the proceeding of divorce. Stack v Dowden [2007] Stack and Dowden, the unwed couple, lived for about twenty years and had four children. Firstly, a home was bought by them in the year 1983 in favour of Dowden’s name along with the mortgage coupled with deposit from Dowden’s savings. In the year 1993, the same was sold and a new house was bought in the names of Dowden and Stack in the year1993. Out of 100 %, 30% of the purchase price was funded in shape of mortgage. The remainder proceeds came through sales proceeds of the earlier house and the left over from the account of Dowden’s bank19. The unwed relationship severed in the last quarter of 2002. Soon after, moving out of the house of Dowden, Stack obtained a court order under section 14 TLATA, which showed that Stack was entitled to half of the sale proceeds of the house, as a tenant. So, Stack obtained an order for sale of the new house. Here, Dowden filed an appeal in the competent jurisdiction and succeeded in establishing his entitlement up to 65% in the proceeds of sale of the house. Whereas Stack was not entitled of any share of the sale proceeds of the earlier house and the savings in the bank account, which was in the name of Dowden20. Stack appealed to the apex house against the decision of appellate court, contending that Stack was entitled to the extent of 50% of the sale proceeds. In the mentioned case, Dowden contended that he had paid substantial share of their housing costs. In that case, there was no any agreement in black and white in favour of the beneficial owner of the house. Here, the issue arises whether the parties in dispute had been in any discussion with regard to this vital issue21. The House of Lords opined that where there is a joint legal ownership, it is presumed that the share of the beneficiaries is equal in equity. It is the responsibility of the stakeholders to prove their equitable interests in different forms of legal interests. In seldom cases, a claimant would succeed in establishing his beneficial interest over legal interest. Since, the parties had kept their financial matters from each other at the time of buying the property and did not intend to share it with other partners in accordance with their share as equal partners, when the house was put into joint names. Under the mentioned circumstances, the appeal was dismissed accordingly22. View of the decision in the broader sense indicates technical presentation before the Augustus house. It indicates that the courts are now taking a more flexible approach than it was in the case of Lloyd’s v Rosette. Jones v Kernott [2012] The case of Jones v Kernott deals with the rights of Leonard Kernott and Patricia Jones coupled with entitlement to 0.245(M) pounds sterling property, which was bought by the couple. It was located at Essex in the year 1985. Madam Jones paid amounting to ?6,000 from her own kitty with her partner through a mortgage23. The said lady paid the property related expenses plus the bills while her husband paid for repairs and renovation of the property. Their relationship got sour in the year 1993. Later on, the said gentleman was out of the property without any financial contribution to the property and to the family home. The coupled pair got cashed their insurance policy and divided its proceeds amongst them. It enabled Mr. Kernott to buy his own living home in the year 199624. After separation of 13 years, Mr. Kernott decided to get back his invested share in property from his former partner. To achieve the desired goal, the cited gentleman started legal proceedings to obtain a declaration from the competent jurisdiction that his previous partner had owned the entire beneficial interest. It was recognized that the couple owned the property equally at the time of their separation, but Ms. Jones argued that Mr. Kernott's beneficial interest had reduced due to his lack of financial contribution since moving out of the property25. The County Court and High Court both agreed that Mr. Kernott was entitled to just 10 per cent of the property value. This decision was based on the couple's financial arrangements during the time they were apart. However, this was overturned by the Court of Appeal, which ordered a 50/50 share on the basis of the original agreement. The Supreme Court judges were unanimous in allowing the appeal and restoring the order of the earlier County Court Judge.  As such, the beneficial interest was split into the ratio of 90/10 in favour of Ms. Jones26. Keeping in mind the above, the court examined each case according to its merits and demerits to ascertain the difference between the actual occupant and the forced occupant. It is to remember that court while deciding the case must hear the arguments of both sides duly supported by evidence. In other wise scenario, we rely on the statement of squatters and the events. It can be similar or identical in many reported cases. Bibliography B Bogusz, ‘Bringing Land Registration into the Twenty-First Century – The Land Registration Act 2002’ (2002) 65 MLR 556 B McFarlane, N Hopkins and S Nield, Land Law: Text, Cases, and Materials (2nd edn OUP 2012) City of London Building Society v Flegg [1988] 1 AC 54 Jones v Kernott [2012] 1 AC 776 K Gray and SF Gray, Land Law (OUP 2011) Lloyds Bank v Rosset [1991] 1 AC 107  N Jackson, ‘Overreaching in Registered Land Law’ (2006) 69 MLR 214 S Gardner, An Introduction to Land Law (2nd edn OUP 2009) Stack v Dowden [2007] 2 AC 432 Williams & Glyn's Bank v Boland [1981] AC 487 Read More