Real Estate Property Ownership in the UK and Wales - Case Study Example

Year of study and Semester: Submitted: Part1: Real E Property ownership in the UK and Wales From the above casestudy, it is worth noting that Nitin and Miriam have a valid case to present before the courts. It is evident that both parties followed the due process of buying this property from Paul which culminated to their registration as joint proprietors of the property. At the same time, it is imperative to note that Paul had actually assumed full ownership of the entire property in question. In this Paul was the legitimate owner of the property then he passed over its ownership to Nitin and Miriam by virtue of sale. In this regard, as at October 2009, they became the landlords of this whole real estate property. Hence, the main issue is whether they have feasible options which would enable them to gain full or total control of their property. From this case study, it can only be implied that they were able to secure title register which in turn enabled them to be registered as joint proprietors of this property. However, according to the Law of Property Act 1989 section (1) (3), it should be noted that for them to be deemed to be the owners of the real estate property, they shall have to be in possession of a valid deed stating as such. According to this section, a deed may only be taken to be valid if it was produced in writing through signing by the seller of the land or property in the presence of witnesses who must also attest to the validity of such signature. The other option as it is provided by this Act is that the seller may direct, and in his presence as well as that of two witnesses; who must also append their signature. The third option which was available to Nitin and Miriam to them in terms of acquiring the deed was through the delivery of such document by Paul to them in person or by any other person who might have been authorised to do so. A closer look at this case study does not address these issues comprehensively. However, it is justifiable to infer that they were indeed able to obtain the deed subject to their registration. By so doing, the two parties are therefore entitled to all the rights which are come with the ownership of the real estate. According to Morris (325) such rights stem from proprietary upon ownership of such real estate. Most notably, ownership is usually accompanied with the rights of possession and enjoyment by the actual owners. On a positive rejoinder, Thomas (276) notes that proprietary rights carry with them the right of easements and profits as it is provided by the land law. With particular case, it is apparent that Nitin and Miriam have not been able to enjoy any of these rights. With particular reference to Amy, it is possible for them to sue for damages on grounds that Paul assigned or sublet part of the property without their consent. However, for this to hold, Nitin and Miriam shall have to prove that to the satisfaction of the court that indeed Paul made that decision after they had legally acquired the real estate property. That being the case, then they do not have to wait until next year since Amy is actually trespassing by virtue of the fact that she was assigned the stable block by a stranger; Paul having sold the property to them. In this regard, there is no legal lease agreement between the landlord and the tenant in the first place. With this in mind, Amy can be sued for trespassing on private property as well for damages and thus be able to collect the rent as the legitimate owner of this real estate property. On the other hand, Nitin and Miriam have legal grounds to withhold their consent of lease to Amy according to the Landlord and Tenant Act 1988. Based this act, they have grounds owing to the fact that Amy is not an individual of an excellent character due to her drug abuse history. The fact that Amy is actually a noisy neighbour due to her music career provides another ground for Nitin and Miriam to evict her from their property even if such lease agreement was signed by Paul before the actual date of their purchase of this property. This shall be justified by the fact that the noise prevents the owners of the property from enjoying their property by virtue of possessing it. This aggravates the matter owing to the fact that her mere lease raises fundamental questions into whether she is legally supposed to be on this property in the first place. In a nutshell, Amy is legally regarded is a stranger who is trespassing on the land. With particular reference to the question as to whether Nitin and Miriam have back their Sundial and greenhouse, it is possible subject to the condition that they are the legitimate owners of the real estate property. However, the challenge would be on establishing who among the other parties is culpable or not. Furthermore, the fact that they had already completed the process of purchasing this property makes it even harder to hold Paul accountable and sue for damages. Their inability to hold anyone accountable yet they had this property shall reduce their chances of successfully seeking for damages. On a different note, it should be noted that this property is legally registered under Nitin and Miriam under joint proprietorship. Hence, Marjorie's claim of the garage and flat does not hold. Furthermore, she is a grandmother to Paul which thus makes the initial transaction by Paul to be binding upon her as well. With this in mind, Nitin and Miriam have legal grounds to file for her eviction from this property Part 2: Covenant not to Assign or Sublet in Context According to Thomas (362) the tenant in both England and Wales has been given the liberty or freedom to assign, sublet or under-lease the entire premise. To add to that, the tenant is allowed to levy some charges on the premises as mortgage by the common the law on Landlord and tenancy. On the other hand, though this is presumed to the case, it is imperative to note that the said power is usually controlled through the use of express provisions by the lease from the landlord. It is also noteworthy that these provisions are also provided or implied by the same Act which at the same time provides for this freedom. One of such statutory provisions is found under section 15 of the Housing Act of 1988. In principle, it is implied by this section by means of periodic assured tenancy actually prohibiting assignments, subletting or under leasing without first obtaining consent from the landlord. With this in mind, the section is explicit in terms of reference to the scenario where there is no such provision by the lease. Furthermore, the said lease must be dealing with the issued of subletting or assignments. In this regard, it is justifiable to note that although the Act seeks to give the tenant exclusive autonomy on the use of the premise once occupied, the landlord is at the same time given the leeway to refuse giving this consent. This is further aggravated by the fact this refusal by the landlord might be made irrespective of whether the reason is actually deemed as to being reasonable or not. On a positive rejoinder, Ward (233) notes that this has been given the much needed impetus owing to the fact that section 19 of the Landlord and Tenant Act is not captured within the former section at all. This section; (1) (b) stipulates that where the lease is granted for a period of more than 40 years and contains the covenants to the tenant not to assign or sublet, then the there shall be no need to seek such consent from the landlord in the event that the assignment is made within a period of more than 7 years before the expiry of the lease. In this case, the tenant is usually required to give his/her landlord a six month's notice before such assignment is effected. The only exception to this condition is the government departments and local authorities in England or Wales. Against this backdrop, in the event that the tenant wishes to assign or sublet, Act 1927 and 1988 make it possible for the tenant to sublet. According to both these Acts, the tenant is usually required to seek the said consent in writing from the landlord. This shall be deemed to be a qualified covenant against the assignment. It is note worthy that the section 19 of the 1927 Act implies that in such an instance, a provision that the landlord shall or must not unreasonably withhold this consent from the tenant. At the same, it should be noted that Act 1988 is more explicit in the sense that it has placed a series of duties to the landlord in the event that they are indeed given this written request by the tenant. In this respect, the landlord having been duly informed by the tenant in writing of his or her intention to sublet or assign, then the 1988 Landlord and Tenant Act of 1988 then the landlord is expected to answer or respond to this written request within reasonable time. The Act further stipulates that once he or she has been served with the written request for covenant against assignment or subletting, then she/he is obliged to accept this request. Any decision on the contrary must be justified by well founded reasons stating as such. According to Goo (218) this Act shall then require the landlord to state his or her grounds for refusal in writing to the tenant. Moreover, in the event that the landlord actually chooses to breach these stipulated duties, the tenant is entitled to seek legal redress by suing for damages. On a positive rejoinder, Chappelle (163) states that the 1988 Landlord and Tenant Act have placed the onus on the landlord to prove to the justification of the court that (s) he is being unreasonable. Therefore, this ensures that the landlord is put to ask when there is a dispute from his/her actions in relation to whether the tenant had actually raised a qualified covenant. This situation is usually complicated when the assignee has actually been identified or known to be of an excellent character. Hence, in the event that the landlord opts to decline the request and instead goes to court when the tenant decides to sublet or assign against the covenant; then the damage is taken to be nominal. Also, the tenant is provided for by the law to go a head and lease or sublet the premise without the landlord's consent if it established that the latter bluffed her/his way out by threatening the tenant of a risk litigation even though the lease agreement did not include forfeiture clause. To add to that, in the event that the lease agreement had intentionally omitted the forfeiture clause, the landlord is at liberty to sue the tenant for damages. Smith (274) notes that the landlord might also file for an injunction in order to restrain the non-residential user. Though this option might seem actually beneficial to the landlord, these Act have made it impossible for the landlord to reclaim possession of the premise or house even if the breach by the tenant might be very serious. As it was indicated above, this is made even more difficult in the event that the tenant can prove beyond reasonable doubt that the assignee is a person of excellent character. Furthermore, according to these Acts the landlord is allowed to sue the tenant on the ground of having assigned or sublet the premise without seeking consent from the landlord. In such instances, the landlord's action litigation does not render any transaction that the tenant might have made with the assignee or sub-tenant to be invalid. To add to that, the 1988 Act stipulates that the landlord may only decline the written request for the assignment or subletting only on grounds that the premise was being used for the purpose other than that which has been indicated in the lease agreement. In this regard, the tenant is allowed to assign or sublet the premise so long as the use does not contravene the covenant of not assigning or subletting the premise for any other use other than as a private dwelling. This would be backed by the Landlord and Tenant Act of 1988 in which case the landlord shall be required to accept the covenant against assignment or subletting. The onus would be on the landlord to prove why the occupant is not fit to occupy the premise for private dwelling. At the same time, in the event that the landlord is proved to have withheld consent unreasonably, then the tenant is allowed to sue for damages under the 1988 Act. In this case, the tenant's ground shall be that the decision by the landlord to withhold the assignment or subletting consent unreasonably resulted into the prospective sub-tenant loosing interest. Hence, the tenant shall have cause for seeking damages owing to the fact the would-be sub tenant did make the transaction due to the delay. At the same time, these Acts bar the landlord from seeking a percentage of the incomes or rent collected by the tenant as earnings from subletting or assigning the premise. Works Cited Chappelle, Diane. Land Law. 7th Ed. London. Person/Longman: 2006 Goo, S.H. Sourcebook on land law. 3rd Ed. London Routledge: 2002. Gray, Susan Francis. Land Law. 5th Ed. London. Oxford University Press: 2007. Morris, John Rhys. Principles of Landlord and Tenant Law. 2nd Ed. London. Routledge: 1999. Smith, Roger. Property Law. 6th Ed. London: Person/Longman: 2009. Thomas, Meryl. Blackstone's Statutes on Property Law 2006-2007. London: Oxford University Press: 2006. Pawlowski, Mark. Leasing Commercial Properties. London: Gulf Professional Publishing: 2002. Ward, Charles. Residential Leaseholders' Handbook. London: Gulf Professional Publishing: 2006. Williams, Delyth. Landlord and Tenant Casebook. 3rd Ed. London: Gulf Professional Publishing: 2002. Read More