Issues Concerning Land Law - Assignment Example

Land Law Assignment Section B: (a) A legal easement is one that has been acquired through being the freehold or registered owner of a piece of land. Thus, by virtue of possession of a legal title to a property, the owner of a legal easement acquires the right to its unhindered use. However an equitable easement could be classed as the right of one landowner to “make use of another nearby piece of land for the benefit of his own land.”1 In most cases, it is equivalent to the right of way of a landowner to the dominant land over the “appurtenance” or easement. An equitable easement would therefore be one which has been used by a particular party for a long time and where such long term use will allow him a proprietary right of usage over the easement, even if it is situated on land that belongs to the dominant land which is owned by someone else. On the basis of this, a legal easement is one that is legally enforceable in a court of law while in the case of an equitable easement, it must be registered under the Land Charges Act if it is to be enforceable. (b) In the case of Norman’s property, there are two easements that are under consideration (i) the lane at the rear that accesses the property and (ii) the road from Acacia road that leads over his property. Therefore, if another party acquires the title to the land at the rear of the property, the issue of legal versus equitable easement will arise in determining access and use of both these easements. In the first case, i.e, the lane at the back, Norman will still have the right to use it by virtue of it being an equitable easement, while in the case of the road in the front, the new owner will not have the right to use it without permission by virtue of its being a legal easement. The rationale for this conclusion is given below as follows: (i) Norman is currently the freehold owner of the land at the rear and has been enjoying the right to use the lane at the back for several years by virtue of his legal interest, since it was not in fact an easement at all but a part of his property. However, when the question of its sale arises, then this lane at the back of the property will be described as “appurtenant to” the dominant land,2 which belongs to Norman. When the land is transferred under Section 187(1) of the Law of property Act of 1925, then this easement will pass with it.3. But the easement must accommodate the dominant land because what is passed is only to ensure normal enjoyment of the land rather than to provide any undue advantage.4 An easement is a right of way designated for a specific purpose and it does not interfere in any way with the servient property owner’s rights over his land, it is merely a permanent and/or proprietary interest held by someone else over that easement (in this case Norman) and is incidental to the land in question. The easement is therefore an interest in the land which will continue even if ownership of the land changes.5 The new owner can enforce his rights to the lane which is the easement in quesiton by registering it under the Land Charges Act. The rule established in the case of Wheeldon v Burrows, according to Thesiger LJ was as follows: "...on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements…….. necessary to the reasonable enjoyment of the property granted…”6 Ferris has clarified the two criteria upon which the right to use an easement may be determined (a) continuous use and (b) necessity of use for purposes of reasonable enjoyment.6a Therefore the use of the easement must be granted by Norman on a continuous basis and if Norman does not indicate in writing on the conveyance deed that he has a right of way over the lane by way of an express grant, the possibility of his easement being extinguished does arise7. The provisions of the Land Registration Act of 2002 specifically state that: “No easement expressly granted out of registered land from 13 October 2003 can ever override.”8 This places a restriction on Norman’s overriding interest in the easement by virtue of his having enjoyed it over the course of several years prior to selling his property, especially since he will be selling his property after the Land Registration Act of 2002, before which equitable easements were deemed to automatically enjoy a binding status as overriding interests.9 This was also upheld by the Courts in several cases, such as Celsteel v Alton House Holdings10. But the overriding interest cannot automatically be taken for granted under the new rules. However, as was indicated in the case of Copeland v Greenhalf11, an easement is merely an right over the land to the extent of being allowed passage, it does not mean joint ownership. Therefore, both Norman and the new owner will have the right to use the lane and neither one can raise any objections to its use by the other. In the case of London and Blenheim, Judge Baker clarified that the right to an easement should be such that no abuse must be permitted by the owner of the dominant land in such a manner that it would leave the servient owner (in this case the new purchaser) without the means to enjoy his land effectively12. But Norman will be able to invoke the provisions of the Prescription Act of 1832 to demonstrate the Latin principle of nec vi, nec clam, nec precario to show that Norman has exercised the right to use the lane for several years - right not by force, not secretly and not with permission, therefore he is entitled to continue using it. (ii) These issues do not however rise in the case of the road leading to Acacia Road. In this instance, Norman is the undisputed owner of the property and the easement and therefore exercises full and unfettered rights over its use. In the case of Commissioner for New Towns and Anor v JJ Gallagher Ltd13 the could held that on application of section 62 of the LPA, the phrases “enjoyed with” and appurtenant to” will not operate to include a road or an easement that is not specifically mentioned in a conveyance. In reference to the access to Acacia Road, the conveyance that Norman will be making to the person who buys the property on the back side will not include the land which belongs to him and which includes the access to Acacia. Unless the new owner can demonstrate the imperative nature of his need to use the road, as for example the case of Cable v Bryant14 where an easement was deemed to exist, it is unlikely that the Courts will consider the grant to the new buyer of the right to use the easement without permission of the owner15. Section A: (a). In this case five people together wish to buy a property, therefore they cannot work on the normal basis of acquisition of a freehold on the property which is to pass on to the next of kin in the case of death. There are two options they can exercise. On the one hand, they may declare themselves as joint tenants, each of them contributing an equal share in the purchase of the property. However, as Norwood points out, such an arrangement is generally applied only in the case of two purchasers for a property.16 It is possible for up to four people to become joint legal owners in which case all their names will be on the title deed and when one of them die, his/her rights over the property will pass to the other owners. However, the better option of the five friends would be to utilize the other legal option for jointly purchasing a property – that of declaring themselves as tenants in common, whereby each person enjoys a right in the property which is proportional to the share of his/her investment into it. In such a case, each person’s share in the property will not automatically pass to the other owners but can be passed down to their next of kin. (b) Adrian will have the right to sell his share of the property to Frederick only if a tenants in common arrangement exists, otherwise when he leaves, he must sell his share to the other owners. In the case of Frederick, he will now inherit Adrian’s share in the property and therefore will enjoy rights to sale proceeds etc from the property in the proportion in which Adrian has invested in the property. If however, a joint tenancy arrangement exists, the property will pass to the other owners, however in a common tenancy, the mere payment of money may not be sufficient to constitute a beneficial interest unless there is an arrangement with the other owners that he should have one, per the principle in Oxley v Hiscosk.16 Therefore the fact that Diana dislikes him may work against him, because there must be a manifestation of common intention by the other owners to allow him a beneficial share in the property.17 Moreover, if a joint tenancy exists, then none of the owners can sell their shares in the property to anyone else without gaining the consent of the other owners. In the case of Brain, a will exists in which he has left his property to his brother Martin, which he will be able to inherit in a common tenancy arrangement. If it is a joint tenancy arrangement however, then irrespective of what brain has said in his will, his share in the property will pass on to the other owners and cannot be given to Martin. It is only in a common tenancy arrangement that brain will have the right to will his share to his brother. Since Martin wishes to sell the property, he may not be willing to make his share of the mortgage payments, therefore this presents the other owners of the house with a problem. They will have two options (a) to buy out Martin’s share and distribute the additional mortgage payments among themselves or (b) arrange to sell the house so that they can distribute the proceeds of the sale to all the owner sin proportion to their investment in accordance with the Oxley principle. The mortgagee will have full rights to collect payments from the others and they will be liable for his share of . In the case of a joint tenancy however, it is the others who will inherit the property, irrespective of anything that is said in Brian’s will.18 Moreover, in a joint tenancy, no owner can be forced to sell a property or his share in a property. The tenancy must be converted to a common tenancy before this can be done. It is necessary to secure the agreement of all the co-owners before the property can be sold and in this case, only Christine and Martin wish to sell the property while Diana and Edwina like the house and don’t want to sell it. Diana and Edwina are therefore placed in a tight spot, because if they wish to retain the house, the mortgagee can make them responsible for the mortgage payments of the others, since they can refuse to continue with the payments and may abscond, in which case the mortgagee will have the right to demand that the remaining owners make good the mortgage payments. Martin and Christine could also approach the courts for a resolution of the issue, in view of the changed circumstances. The Court will review the case and may order that the property be sold19 or that the ownership of the property be transferred to Diana and Edwina. Frederick could play a deciding role in this case by taking up Adrian’s common tenancy and thereby contributing to the mortgage payments. However, there is an important issue that must be considered in this context and that is the position of a secondary owner in regard to the issue of unity of interest. In the case of re Gardner20 the issue was whether title and joint rights could be passed on to a minor child after he came of age and was able to take over his parent’s interest in the property. The Court based its judgment in this case upon the conditions existing at the time the property was purchased and stated that the minor had acquired only a beneficial interest and the share in the property could be construed to have been held in trust for his benefit. Therefore, it is likely that in this case as well, the Court will attach importance to the conditions prevailing during purchase of the property and the original arrangements drawn up between the parties in arriving at a decision. When the arrangement was drawn up among the five friends, their agreed to share ownership and title among them. They are the original owners and therefore, Diana, Edwina and Christine may be deemed to be holding the property in trust for Martin and Frederick, so that they have only subsidiary unity of interest in the property as compared to the original owners. On this basis, Diana and Edwina’s position may be accorded more importance since they are two people who want to hold the property which Christine does not. Bibliography Cases: * Cable v Bryant (1908) 1 Ch 259 * Cable v Bryant (1908) 1 Ch 259 * Celsteel v Alton House Holdings (1985) 1 WLR 204. * Commissioner for New Towns and Anor v JJ Gallagher Ltd (27 december 2002) TLR Ch D * Hill v Tupper (1863) 2 H & C 121 * Lightfoot v Lightfoot-Brown (2005) EWCA 201 * London and Blenheim estates Ltd v Ladbroke retail parks Ltd (1994) 1 WLR 31. * Oxley v Hiscock (2004) EWCA Civ 546; (2004) 20 EG 166; (2004) 3 All ER 703 * Re Gardner (1924) 2 Ch 243 * Wheeldon v Burrows (1879) 12 Ch D 31. Books/Articles: * Ferris, Graham J, 1996. Problems postponed: The rule in Wheeldon v Burrows and Wheeler v Saunders The Web Journal of Current Legal issues. [online] available at: http://webjcli.ncl.ac.uk/1996/issue3/ferris3.html * Halsbury’s Laws of England. Easements and Profits a prendre (4th edn) para 1-239 * Norwood, Graham, 2003. J is for Joint Ownership The Observer, January 12. [online] available at: http://money.guardian.co.uk/property/story/0,,1181373,00.html * Meggary and Wade, Law of real property 6th edn, pp 1143 * Types of Joint Ownership [online] available at: http://england.shelter.org.uk/advice/advice-471.cfm * Sexton, Roger , 2004 Land Law Textbook. Oxford University Press Legislation:. * Land registration Act of 1925 and 2002; Available online at: http://www.landregistry.gov.uk/assets/library/documents/fact_sheet006.pdf * Land Registration Rules * Prescription Act of 1932 Read More