Statutes of Property: Common Law and Land Law - Assignment Example

Order # 147921 Dealing firstly with the issue between Nigel and Gareth where Nigel is claiming that he is en d to continue to use the land as he has been doing since 1993 it is necessary to look at the ways in which Nigel might be able to substantiate his claim. Under the doctrine of prescription rights can be acquired by use or enjoyment of the land over time. It was suggested in Bryant v Foot (1867)1 by Cockburn CJ that the rights acquired were founded ‘not on the ground that possession over a given period gave an indefeasible right, but on the assumption, where possession or enjoyment had been carried back as far as living memory would go, that a grant had once existed which had since been lost.’ A presumption of lawful grant can be made either at common law, by lost modern grant or under the Prescription Act 1832. Claims are usually made under all three methods2. When applying the doctrine of prescription at common law, such an easement is only presumed where the appropriate user has existed from time immemorial. The limit of legal memory for this presumption was usage from 1189 but as it is normally impossible to supply actual proof dating this far back it has been commonly accepted on the basis of evidence as a long user3. The difficulty with this is that such a presumption can be rebutted as occurred in Hubert v Dale [1909]4 where the plaintiff was able to show that the right claimed had not existed or could not have existed since 1189. Due to the difficulties with the common law approach to prescription and the possibilities of rebuttal the principal of lost modern grant was formed. Under this heading there is a presumption that if the user has used the easement for a period of 20 years that the deed of grant to use the land has been lost. This makes the presumption that a lawful grant was previously in existence and therefore the user should be entitled to continue using the land in the manner he has been doing. The case of Tehidy Minerals Ltd v Norman [1971]5 settled that the presumption cannot be rebutted even by direct evidence that no grant was ever made. If another explanation for the user is equally possible, than a grant should not be presumed6. It was decided in Neaverson v Peterborough RDC [1902]7 that the presumption can be rebutted if it can be established that no lawful grant could have been made at any relevant time. The Prescription Act 1832 gives rights to subsequent purchasers of the land. Section 2 of the Act takes the view that if a user has enjoyed the right without interruption for 20 years that a claim to continue using that right cannot be defeated by proof that user began after 1189. The Act goes on further to state that claim for an easement where the user has enjoyed the right without interruption for 40 years is deemed as absolute and indefeasible. To claim under this Act the claimant must establish uninterrupted enjoyment for the required period immediately preceding the action in which the claim is asserted8. An interruption of that easement would be regarded as some overt action of the servient owner. An interruption can be disregarded if the dominant owner did not submit or acquiesce to the interruption9. From the above it would appear that as Nigel has had uninterrupted use of the land for a period of at least 20 years that Gareth may have difficulty in preventing Nigel from continuing to use the land in this manner. Nigel should be able to rely on his continuous use of the land since 1993 to establish his right to continue using the land especially since Arthur never objected to him using then land and even made no objections when the fence was erected. To claim the easement by prescription he would have to show that Arthur either consented to him using the land or acquiesced to the usage, as opposed to just having given him permission to use the land. In Mills v Silver [1991]10 Dillon LJ stated that toleration of a user as of right should not prevent the user from claiming an easement by prescription as was suggested in Gardner v Hodgson’s Kingston Brewery Co Ltd [1903]11. This would mean that if Gareth attempted to argue that Arthur had not consented or acquiesced to the use of the land by Nigel but had merely tolerated his usage of the land that Nigel could still rely on such toleration creating an easement. Looking at the situation in respective of the restrictive covenant granted by Arthur’s predecessor to a previous owner of Mohammed’s land it is necessary to examine the law in respect of restrictive covenants. In order to determine whether the covenants can pass to subsequent owners there needs to be an examination of the covenants made as only covenants that touch and concern the land can transfer to subsequent owners12. The requirement for freehold covenants has been reformulated in terms of covenants that benefit the land of the covenantee13. It is clear from the wording of the covenant in respect of Mohammed that the covenant touches and concerns the land as the covenant is for the owners not to build on the West Field. Having decided that the covenant is one that concerns the land it is necessary to look to analyse when restrictive covenants can be transferred and whether a successor in tile of the original covenantee can enforce the covenant against a successor in title of the original covenantor14. Under common law and equity the benefit of both positive and restrictive covenants can pass to subsequent owners15. This would mean that Mohammed would be entitled to the benefit of the covenant if the owner of the farm was the original covenantee. Under common law the burden of a covenant cannot pass to another whether it is negative or positive, however equity allows the passing of the burden of restrictive covenants but not positive covenants16. The doctrine established by Tulk v Moxhay17 based the decision on whether should a burden could be passed on the doctrine of notice and on the principle that a purchaser who had notice of obligations undertaken by his vendor should be bound by those obligations. This would mean that under common law Gareth would not be given the burden of the restrictive covenant but in equity such a burden would pass to him. It could be argued that Gareth did not know of this covenant when he purchased the land and therefore did not have notice of this covenant. If the covenant has not been correctly entered on the register, than Gareth may well be successful in arguing that he should not be bound by the restrictive covenant as he had no knowledge of its existence when he bought the land18. If the covenant was properly registered and Mohammed can show that the benefit of the covenant has passed to him and the burden has passed to Gareth in equity then he can apply for an injunction to prevent Gareth from breaching the covenant19. The covenant to contribute towards the repair of the road could cause difficulties for Sonny to enforce as the covenant to maintain the road is a positive covenant and as mentioned above the burden of a positive covenant cannot be passed to a successor in title either under common law or under equity20. It was decided in Halsall v Brizell [1957]21 that a positive covenant does not run with the land and therefore the successors in title could not be bound by the burden of the covenant to contribute to the road repairs. There would also be further difficulties if the road did not benefit Sonny as the courts would be likely to infer that the covenant did not touch and concern Sonny’s land22. If the covenant had been worded in the form of not letting the road fall into a state of disrepair it might have been construed as a negative covenant and could have passed with the title23. From the above it is likely that Sonny would not be able to enforce the covenant against Gareth as only the burden of restrictive covenants can be passed to successors in title24. Moving onto the issue of the water feature and the legality of Arthur in taking the feature with him, an assessment has to be done as to whether Arthur is under an obligation to leave the statue behind or whether by replacing of the feature with an alternative one Arthur is justified in his actions. In order to see whether there has been any breach by Arthur in removing the water feature it is necessary to look at case law and legislation in respect of fixtures. The maxim of ‘quicquid plantaur solo, solo cedit’ in respect of fixtures basically means that whatever is attached to the soil becomes part of it. This would effectively mean that if Arthur had removed plants from the garden he could be deemed to be in breach of the contract as they would have been attached to the land. In Elitestone Ltd v Morris [1997]25 the House of Lords divided the category of fixtures into chattels that have become part and parcel of the land and other fixtures. In this instance it could be that the water feature is treated as a chattel of the property because it is deemed to be a fixture. If it is deemed to be a chattel then the courts would look to see if there were any circumstances where the owner might be entitled to remove the item. The question of whether the chattel has become a fixture and part of the land would depend upon the intention of the original owner which could be ascertained from the degree of annexation and the purpose of the annexation26. From the information above Arthur is aware that Gareth particularly liked the feature and has led Gareth to believe that the feature would be left with the property when it was sold. More recent case law seems to suggest that the purpose of the annexation should be the decisive consideration when determining whether the chattel remains a chattel or becomes a fixture. In Botham v TSB Bank Plc (1996)27 Roch LJ identified four guidelines when deciding whether an item was to be treated as a chattel or a fixture. He made the point that ornamental items attached to the building simply for their display and enjoyment are prima facie chattels, and items that can be removed without damage to the fabric of the building should also be regarded as chattels. Applying this to the present case it would mean that Arthur would be entitled to take the water feature as it is a chattel and not a fixture. The replacing of the feature with another one would also prevent Gareth from arguing that the land was affected by the removal of the water feature. The final issue in respect of the items found by Dhillon on the land and his rights of ownership of the items has to be assessed in the terms of who the rightful owner should be. In general terms any items that are found become the property of the person finding the item subject to any claim by the rightful owner. Where items are found on land and the rightful owner cannot be located such items become the property of the person owning the land28. Under the Treasure Act 1996 all finds of treasure must be reported to the coroner for the district in which they are found either within 14 days after the day on which you made the find or within 14 days after the day on which you realised that the find might be treasure (for example, as a result of having it identified). The obligation to report finds applies to everyone, including archaeologists. Treasure has been defined under the Act as 1. Objects other than coins: any object other than a coin provided that it contains at least 10 per cent of gold or silver and is at least 300 years old when found. (Objects with gold or silver plating normally have less than 10 per cent of precious metal.) 2. Coins: all coins from the same find provided they are at least 300 years old when found (but if the coins contain less than 10 per cent of gold or silver there must be at least 10: there is a list of these coins in the Code of Practice). It has been stated in the above that these items date back to Roman times and therefore would be counted as treasure under the Act. Failure to report such items that you believe or have reasonable grounds for believing to be treasure without a reasonable excuse could lead to imprisonment for up to three months or a fine of up to level 5 on the standard scale (currently £5,000) or both. If the items are found to be treasure the coroner will inform the British Museum or the National Museums & Galleries of Wales. They will then decide whether they or any other museum may wish to acquire it. If they decide to do so then the reward for finding the treasure would go to the finder providing the finder has permission to be on the land. If they decide not to purchase the items they will be returned to the finder unless there are objections made by the landowner. If Gareth made objections to this it is possible that the items would be ordered to be returned to him29. This would mean in the case of Gareth that unless the museum decides not to buy the items he would have no claim over them and Dhillon would be entitled to the reward for finding them as he was on Gareth’s land with his permission at the time he found the items. It is not clear from the above as to whether Dhillon notified the coroner as required by the Act. If it transpires that he didn’t then he could be prosecuted under the Act and would not be entitled to the reward for finding them30. The information above would seem to suggest that Dhillon might be able to keep the reward if the items are purchased by the museum but that if the items are not purchased by the museum Gareth would be able to lodge an objection to the coroner who may order the items to be returned to Gareth. Bibliography Bryn Perrins, Understanding Land Law, 3rd Ed, 200, Cavendish Publishing Ltd Gravells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet and Maxwell Pearce, R & Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed, 1998, Butterworths Hayton, D J , Commentary and Cases on The Law of Trusts and equitable Remedies, 11th Ed, 2001, Sweet & Maxwell Thomas, M, Statutes on Property Law, 8th Ed. 2001, Blackstone’s Transfer of land: The Law of Positive and Restrictive Covenants (1984) Law Commission No 127 http://www.landregistry.gov.uk http://www.propertylawuk.net www.opsi.gov.uk www.westlaw.ac.uk www.bailli.org Table of Cases Austerberry v Oldham Corp (1885) 29 Ch D 750 Botham v TSB Bank Plc (1996) 73 P & CR D1 Bridle v Ruby [1989] QB 169 Bryant v Foot (1867) LR 2 QB 161 City of London Corp v Appleyard [1963] 1 W.L.R. 982 [1963] 2 All E.R. 834 (1963) 107 S.J. 650 Davies v Du Paver [1953] 1 QB 184 Elitestone Ltd v Morris [1997] 1 WLR 687 Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 Halsall v Brizell [1957] Ch 169 Holland v Hodgson (1872) LR 7 CP 328 Hubert v Dale [1909] 2 Ch 570 Mills v Silver [1991] Ch 271 Morland v Cook (1868) LR 6 Eq 252 Neaverson v Peterborough RDC [1902] 1 Ch 557 Newton Abbot Co-operative Society Ltd v Williamson & Treadgold Ltd [1952] Ch 286 Osborne v Bradley [1903] 2 Ch 446 R. v Peach (Geoffrey Tom) [1990] 1 W.L.R. 976 [1990] 2 All E.R. 966 (1990) 91 Cr. App. R. 279 Reilly v Orange [1955] 2 QB 112 Rhone v Stephens [1994] 2 AC 310 Tehidy Minerals Ltd v Norman [1971] 2 QB 528 Thamesmead Town Ltd v Allotey (1998) 76 P & CR D20 Tulk v Moxhay (1848) 2 Ph 774 Wakeham v Wood (1982) 43 P & CR 40 Waverley BC v Fletcher [1996] Q.B. 334 [1995] 3 W.L.R. 772 [1995] 4 All E.R. 756 (1996) 71 P. & C.R. 361 (1995) 159 L.G. Rev. 789 (1995) 145 N.L.J. 1365 [1995] N.P.C. 122 (1995) 70 P. & C.R. D47 Times, July 14, 1995 Independent, July 14, 1995 Table of Statutes Land Registration Act 1925 Law of Property Act 1925 Prescription Act 1832 Treasure Act 1996 Read More