Legal and Equitable Ownership of the Property - Case Study Example

Land Law Part A Explain the legal and equitable ownership of the property and whether Jennifer's application for sale would have succeeded. There are various complex issues which the people face in owning a property together with others, especially in situations when the property is owned from the parents by the children jointly. In the property ownership law under the English law, there are two property ownership law and they are legal ownership and equitable ownership, also known as beneficial ownership. Legal owners mean people who are named on the title documents and the number of them would not exceed four. "Where the property is registered in the public District Land Registry (as all properties bought on or after 3 December 1990 will be), the legal owners are the people listed as the "registered proprietors". If it is not registered (as some purchases before that date will not be), the legal owners will be listed on the document called the conveyance, which passes the property from one owner to another" (Joint Ownership of Property. 2008). However, the real value of the property lies in the second type of ownership, i.e. equitable or beneficial ownership as this ownership ensures the right to "the right to live in and use the property, and the right to share in the proceeds of any sale." Also, the equitable owner also can control a legal owner and decide on the sale of the property. As an immediate result of this factor, the buyer of the property will suffer much generally because it is normally difficult for the buyer to realise the existence of an equitable owner form the usual searches of the land or enquiries of the seller. As a result, the buyer will be bound to allow the beneficial owner after the business is over. (Joint Ownership of Property. 2008). It is also necessary that in the case of the legal and the beneficial owners of a property are different there arises a situation called trust, an arrangement formulated by a deed or written agreement. In the present case given for discussion, the two sisters Jennifer and her sister Clarissa conveyed the property as beneficial joint tenants. Thus, it is pertinent to have an idea of how such a property can be held in beneficial joint tenants which is one of the two ways of joint property, the other being the beneficial tenants in common. In the case of beneficial joint tenants, the joint owners are equally entitled to the property by which both share the rights to enjoy the benefits of the property together. Thus, the two sisters enjoy the unregistered country cottage property in Maple Leaf jointly. And, as it is evident, they do not enjoy separate shares but own the whole thing in common to each other and neither Jennifer nor Clarissa could enjoy separate share which each could sell or leave in a will. As it is clear in the case, Jennifer applies for the permission for the sale of her property, but immediately breaths her last. At her death, her application for the sale of property cannot succeed as in the case where "one person dies then the survivor becomes the owner of the whole property. This happens automatically without any further formality" (Joint Ownership - the methods). Also, let this be clear that Jennifer's case, at her death, in application for the sale of property cannot succeed as the law entails the person left the absolute ownership of the property. "If there is only one joint tenant left, he or she becomes outright owner of the property. Because no joint owner has a defined share, their interest in the property does not become part of their estate when they die, but simply disappears" (Joint Ownership of Property. 2008). However, we need to consider whether the particular case of Jennifer would succeed at the time of her application for sale of the property. The specifications of the case are that the property was an unregistered one conveyed to the sisters as beneficial joint tenants; the share of Jennifer in the deal was 160,000 of the total 280,000; and the children of Clarissa had Attention Hyperactivity Deficit Disorder (AHDD) to make her oppose the proposal of her sister to sell the property. In this case, we may conclude that the possibility of the application of Jennifer is most likely to have no effect even though there various elements that she feels would work in her favour. Let us affirm the fact that the entire property is owned by the sisters as one or as common to both and no one of the two has separate shares to enable the one to sell the property without the assent of the other. In the specific case of the unregistered property, the issue is even more complicated. In order to separate Joint tenancy in such cases, a Mutual Notice of Severance of Joint Tenancy signed by both of them should be produced which is a private statement of the intention of the co-owners to sever the tenancy in their property and the signature on the document signifies notice to each other of the separation of the contract. "When this is done the co-owners are deemed to own the property as Tenants-in-Common. The clients should keep the Mutual Notice of Severance with their property deeds and their Will, as this is the only evidence that they own the property as Tenants in Common." (O' Reilly 2006, p. 1). Therefore, in the particular case, Jennifer needs to acquire the consent of her joint tenant, Clarissa which the latter opposes on has various grounds including the disability of children and the ultimate outcome is that her plans to sell the property does not get realised. Part B Mr. Partridge- Jones has consulted you about his proposed purchase. What is the conveyancing process In the case given, we are also provided with a situation wherein Clarissa, anguished at the death of her sister Jennifer who applied for the sale of the joint property, wants to sell "Maple Leaf" as "beneficial owner" to Mr. Partridge- Jones. As he would wish to know the specific details in the process of conveyance o this property Mr. Partridge- Jones may consult me for such details. Let us first be clear that the property is an unregistered joint property, a phenomenon soon disappearing in the UK as more than 85% of the lands are already registered. There is no clarification required as to the ownership of the property at the death of its joint tenant Jennifer as it now, automatically, becomes the sole property of Clarissa. The relatives and especially the husband of Jennifer, who was given in a will the right of the property, cannot claim it. The will, in the case of joint beneficial ownership, does not ensure the conveyance of the land to anyone as the property belongs to both the clients in concert. At the death of any one of the joint tenants, the survivor becomes the absolute owner of the property. Therefore, Jennifer's husband cannot claim the ownership of "Maple Leaf." Therefore, my client can go ahead with the process of conveyance of the property. It may be specifically noted that the case of the discussion covers the conveyancing of unregistered property. "Its conveyance is governed by the old rules based upon common law and equity, supplemented by statutes such as Law of Property Act 1925 and the Land Charges Act 1925 (now the Land charges Act 1972)" (General Principles. 2004, p.7). As noted earlier, the number of unregistered lands is tremendously decreasing as a result of the compulsory registration of the lands. However, the process of conveyance of an unregistered property as in the case presented is also significant. First of all, Mr. Partridge- Jones, as he is the buyer of the property in the specific case presented, needs to ensure that Clarissa, the seller, clearly proves that she possesses the good title of the property being sold. In order to ensure this, Partridge needs to collect an unbroken chain of transfers called an 'abstract of title' or 'epitome of title' which Clarissa is liable to produce. The document produced as evidencing title by the seller is technically known as the 'root of title' which "should usually be evidence of a conveyance of the estate for value (a sale, in other words), as such a transfer is more likely to have surprised any lingering third-party interests that may embarrass the purchaser" (Unregistered Conveyancing. 2006). In the conveyance of an unregistered land, as in the case of Mr. Partridge- Jones, the title obtained is as fundamentally valuable as that of the seller. In the process of conveyance of the property, he needs to make sure that all the necessary documents are collected from the vendor as the property is not registered with the Land Registry. "The Purchaser's conveyancer will have to submit all the title deeds and documents to the Land Registry for registration for the first time, and therefore has to investigate the title deeds very closely, to ensure no documents are missing" (Conveyancing. 2006). The case being that of the conveyance of unregistered property as "beneficial owner," the process does not include the process of the registered property conveyance. It is difficult to tell whether the purchaser is bound by interests owned by third parties, though, it may be pointed out that "interests that are legal (rather than equitable), with one exception, are binding. If the land is subject to a legal Lease, for example, the purchaser may find he is bound to honour that lease" (Conveyancing. 2006). However, the exception of many of the equitable interests like restrictive covenants, estate contracts, equitable mortgages, etc must be entered as a land charge to be binding. "In unregistered conveyancing, third-party rights in land can be protected by registering a charge against the proprietor of the land. Indeed, they must be registered as charges, or they will be lost in certain types of sale. A right that cannot be registered as a land charge will be subject to the Doctrine of Notice. In short, this means that it will be lost if the land is sold to a bona fide purchaser without notice" (Land Charge. 2006). These are some of the specifications in the process of conveyancing as it applies to the case presented. Bibliography Conveyancing. (2006). Unregistered Land. [online]. Howards. Last accessed 11 January 2008 at: http://www.howardsconveyancing.co.uk/jargon-buster.php General Principles. (2004). Unregistered Title. Registered Title Cases and Statutes. P. 7. Last accessed 11 January 2008 at: http://www.lawinabox.net/a05land.pdf Joint Ownership of Property. (2008). The two types of property ownership. [online]. Thomson solicitors. Last accessed 11 January 2008 at: http://www.thompsons.law.co.uk/ltext/fsfam004.htm#two_types_of_property_ownership Joint Ownership - the methods. [online]. Legal docs direct. Last accessed 11 January 2008 at: http://www.questbrook.co.uk/joint.htm Land Charge. (2006). [online]. The K- Zone. Last accessed 11 January 2008 at: http://www.kevinboone.com/lawglos_LandCharge.html O' Reilly, Lorna (2006). Estate Planning Update. Tenancy Severance on Unregistered property. P. 1. Last accessed 11 January 2008 at: http://www.jwsw.co.uk/Property%20Ownership%20Solutions.pdf Unregistered Conveyancing. (2006). [online]. The K- Zone. Last accessed 11 January 2008 at: http://www.kevinboone.com/lawglos_UnregisteredConveyancing.html Read More