The Legal Rights That Cara May Have - Assignment Example

Land Law Problem Questions Question One The legal rights that Cara may have The acts by the other users ofthe property are causing Cara unlawful and indirect interference with the enjoyment of her house. Orla has started offering dancing lessons in her house. By so doing, she has breached the covenant, which required them not to use the houses for business purposes.1 The clause developed again may mean that a leaseholder is unable to assert that the landlord has considerably interfered with an easement given by the lease. The rights cannot permit the total demolition of an easement. Demonstrations in the pre-lease by the landlord, together with any prohibition clause in the lease may also be suitable. This portrays the intention of the parties at the time of the grant and, therefore, what will amount to deviation from grant. The case of Petra Investments v Jeffrey Rogers illustrates these principles. 2 The landlord of a shopping centre was entitled to rebuild or change the centre in any manner, and to utilize or lease the centre for any use. This was so, even if the access of light or air was tampered with, or other rights given to the tenant were reduced or prejudiced. The High Court noted obiter dicta that probably, the landlord was obliged not to change the common parts of the centre to reduce its quality as a shopping centre. In part, this was because of pre-lease representations by the landlord to the tenant.3 In Saeed v Plustrade Ltd, 4 the tenants of the flat were entitled (in common with other tenants) to park on the forecourt. The lease reserved to the landlord a right to change the block of flats and to build on the adjacent land, even if the access of light or air was reduced. The landlord took the forecourt parking spaces out of commission for three years, even as neighboring land was being developed and projected to reduce the number of spaces from 12 or 13 to four. The landlord (Kevin) reserved rights by confirming that it was his duty to develop the road accessing the four houses. The contract expressly limited the use of the houses to the place of residence. The owners were at no circumstances allowed to use the houses for business purpose. These redevelopment clauses are common in leases. The provisions of the lease may mean that Cara may not be able to claim from Kelvin for interfering with the easement that was granted by the lease. However, the rights of Cara are reserved and they cannot permit the total destruction of the easement. This is illustrated in the case of Petra Investments v Jeffrey Rogers,5 where the landlord of a shopping centre was entitled to reconstruct or alter the center in any way and to utilize or let the centre for any reason. This was held to be the case even in the circumstances where the access to light or air was tampered with, or any other entitlements granted to the tenant were reduced or prejudiced. In the Obiter, the High Court held that the proprietor was obliged not to tamper with the ordinary parts of the centre to occasion it to lose its nature as a shopping centre. This was due to earlier representations by the landlord. In this case, Kevin had a duty to maintain the road and Cara had a right to a good and accessible road. Therefore, Cara ought to institute legal orders against Kevin for failing to maintain the road.6 Orla is reported to have started offering dancing lessons in her house. Cara needs to substantiate if this amounts to interference with the easement, and whether this amounts to private nuisance. Under Section 194(1) and Schedule 9 to the PA 2008 in England7, easements and other rights are overridden during a subsequent use of the land as well as the repairs of any house or labour on the land. Tess, having painted the house pink, may not have necessarily violated Cara’s right; however, Cara has a claim against Tess and can seek orders requiring Tess to comply by the provision of the Covenant. The remedies that are available for Cara for interference with the easement are declarations, injunctions and damages by way of court order and they can be granted exceptionally or combined. The court may make a declaration to confirm the existence of the easement. Cara can also seek damages due to the interference on the part of Kevin. The remedy of injunction may be awarded to Cara at the court’s discretion. It should be noted that injunctions will only be awarded where damages would be adequate for the claim that she could have against any of the parties. Cara should seek mandatory injunction against Kevin by seeking for the court to order Kevin to undertake his responsibility of maintaining the road as the covenant indicated. The court should also order Kevin to act in order to prevent further destruction of the road by issuing the injunction of Quia timet. Cara should also seek prohibitory injunctions against Orla, who has started offering lessons in her house contrary to the agreement. The court should order that Orla refrains from giving the dancing lessons in her house. Cara should justify that the award of damages would not be adequate to compensate her claim against Orla, and only the injunction would be adequate to stop Orla from issuing the lessons in her house.8 The covenant provided that the parties paint their houses white, however, Tess is reported to have painted her house pink. Cara should seek injunctive orders to be issued against Tess to forbid any further interference with the easement as customary. However, Cara must prove each and every claim because the court does not issue injunctions lightly. This is illustrated in the case of Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Squire) Ltd,9 where the court summarized the principles to the used when assessing damages for Breach of a right. Question Two The legality of Piers behavior In the circumstance where two or more people purchase property together, it may either be held as a joint tenancy or tenancy in common. When the parties choose to hold property in joint tenancy, each and every party owns all the property, and upon the death of either of the party, the interest of the deceased extinguishes instantly and the survivor owns the property. The relationship that exists among the three parties, namely, Rupert, Sienna, and Jude is known as tenancy in common. This is informed by the manner of contribution in purchasing of the Sun House. If one of the contributors dies, his or her share passes on to his estate, and according to their will. This is an advisable way to hold property in all situations when joint tenancy is not instantly and obviously suitable. In tenancy in common, the distinction is made as to the title in law and in equity. The title is held as a joint tenancy, but this does not have the effect of affecting the issues discussed above. In this case, therefore, Rupert being the holder of the title and his name being in the register does not have a good title against the father of Jude and his wife Sienna. Tenancy in common enables all the members to have entire control over the property.10 Hearth is a tenant of Rupert, and during the time of entering into contract of tenancy, certain rights and obligation on both the landlord and the tenant arose. These rights and obligations may be implied or statutory. For instance, a tenant has a right to quite possession. This right implies that, the landlord grants the tenant the right to exclusive possession of the property during the period of lease, and the landlord should not interfere with this right unless the tenant is in breach of certain terms in the lease. As such, Hearth has rights against Rupert who has purported to sell the premises, where he had let and before the completion of the period they had agreed.11 As observed earlier, the right to quiet possession may be expressed or implied by law. An agreement of the lease should, however, contain an express term for quite possession. This was expounded further in the case of Budd-Scott v Daniel. The court held that, the covenant of quiet enjoyment could be implied from the relationship of the parties as landlord and the tenant. This suggest that, even if Rupert and Hearth had no express term to the effect that Hearth was to enjoy quiet possession during the period of the lease, the right had not extinguished and he could still claim it. Any tenant who claims that his or her right to quiet possession has been infringed should seek the most appropriate remedy available. He may choose to seek injunctive relief and damages or else choose to consider the conduct of the landlord as repudiation of the lease, thereby releasing the tenant from further obligation, and then taking the lease as terminated and suing for damages.12 Piers is also against the behavior of Charlotte and bars him from accessing the main road, which was the only way from his house. England common law rule is to the effect that, if a contract or usage provide or implies as to the location of an easement, the owner of the servient will have no right to vary or depart from that unless there is an express provision in an agreement. Unlawful interference with the right of way is considered nuisance and remedies may be sought to that effect. For interference to be actionable in court, it has to be substantial. Substance will depend on whether; the owner of the dominant estate’s logical use of the right of the way has been interfered with. Further, this will depend on the insistence on being able to go on to use the entire of what was contracted for is logical.13 In the case of Greewich Healthcare NHS Trust v London and Quadrant Housing Trust,”14 the plaintiff acquired land for the purposes of building a hospital. That land had a road connecting it to the highway. The building of the hospital was approved, but it was subject to the conditions that a new road with a new junction with the public highway be completed prior to the opening of the hospital. The plaintiff had to realign the road, though this road was used by the defendants as right of way. Further limitations were that the land was subject to restrictive covenant. The defendants served them with a notice, on the development and none of them objected to it. It was held that, the landlord of the servient estate was not entitled to change the course of an easement of way, unless the entitlement of the landlord of the servient estate had been expressly or impliedly granted to him. The defendants should be satisfied with, and restricted to an award of damages. Piers action to deny Charlotte access to the main road was actionable. Even if there was no express provision to that effect, there was an implied right of way. Piers actions according to English common law were unlawful and Charlotte could sue him for damages. Question Three Whether Edward is able to forfeit the lease and the steps that he should take to achieve forfeiture Forfeiture is a term that explains the loss of property without compensation. In this case, the forfeiture was privately arranged between Brad and Edward. Contractual relationship requires that one party forfeits the lease.15 There are three types of forfeiture and in this case there is a statutory forfeiture or forfeiture base on statutory law, the property is reverted. A lease of reversion is a lease that has the landlord’s interest in a property that is subject to lease. In certain cases the lease of reversion is termed as an overriding lease. Landlord Tenant (Covenants) Act 1995 under section 6 provides that, when the landlord assigns the whole reversion of the let premises by assigning the freehold subject to the lease, he may apply to be released from the covenant under section 8. In this case, there is a restrictive made between James and Brad, in which Brad granted James a 10 year legal lease of the residential property, and it had a covenant that James was to pay rent per calendar year, keep the property in good repair, and was not to assign the lease to any one devoid of the consent of the landlord. Brad gave Edward the freehold to the property, in this case, Edward should seek to have Brad apply to be released from covenants under section 8. Under section 7, where the landlord assigns reversion prior to the reversion the former landlord (Brad) is still bound by covenants. Under section 8, Brad ceases to be the Landlord of the property. In this case, Edward should give notice of the assignment to all the tenants (Ravi) and thereof request that Brad be released from the covenant according to the provision of section 816. It should take about four weeks to have the release. Ravi, as a tenant has a right to object or it may be decided by the court that Brad get released.17 Steps that Ravi can take to retain position of the property if Edward seeks to forfeit the lease Brad granted James a 10 year legal lease of residential premises. It included covenant to pay rent per calendar year to keep the property in good repair. James was also not to assign the lease devoid of the approval of the landlord. This demonstrates that there was a covenant, such that the initial parties are sued in the event of Breach. Usually, privity subsists between the people who hold the reversion of the freehold (Brad) and the leaseholder (James), however, the reversion holder is the head lease and subleases are not privity of the estate. After Edward acquired the freehold, he became the holder of the reversion as per the provisions of the Landlord and Tenant Act of 1995. Section 3(2),18 provides that the person assigned is the tenant, and the one assigning is still bound by the covenant, except in the circumstances where the assignor was not bound instantly prior to the assignment, and will acquire the advantage of any assignment of the covenant against the landlord.19 James was bound by the terms of the covenant, which prohibited him from reassigning the lease. It is therefore clear that James assignment to Ravi was null and void, and therefore he could not pass a valid assignment to Ravi. The provisions of section 6,20 of the Landlord Tenant Act can be used by Ravi to apply for release from the covenant under section 8, and be assigned the lease by Edward. However, under the provisions of section 7,21 Ravi is bound to service the rent and maintain the property to the former landlord (Brad) although there was no privity between Brad and Ravi. Under section 23, Ravi may not be liable for things that happened before rights were assigned to him. James was assigned the lease and was bound by the terms. In British Telecommunications plc V Sun Life Assurance Society plc Court of Appeal,22 a proprietor was in breach of his covenant to maintain the other parts of a house in which the demised properties were situated. Immediately, the repair was stopped, and the court dismissed the appeal. The House of Lord’s decisions in O’Brien v Robinson,23 the landlord was in breach of his obligation to maintain only when he had knowledge of the defect, and this would put a rational landlord on inquiry. In the majority the court of the Exchequer decisions in Makin v Watkinson,24 the landlord effectively pleaded absence of notice in defense for allegation of breach of the covenant to keep the premises in good repair. Who can bring an action for the arrears of rent? In particular, as Ravi is in arrears (unpaid) of rent, is Edward able to recover the arrears from James? The legal issues that arises as pertaining this question is; who is the rightful landlord to claim rent arrears from Ravi as among Brad, James and Edward? To determine this, we have to first define the requirement of covenant. Covenants operate as contract so that the initial parties can be sued in breach. Second, ascertain as to the privity of the estate. This exists between the person who holds the reversion of the freehold and the one who hold the lease. As between the two, the covenant may be applicable but the reversion holder in the head lease and a sub-lessee are not in privity of the estate. Leasehold covenants These are provided for in the Land lord and Tenant Act of 1995. Section 2 relates to landlord and tenant covenants. Section 3(2) is to the effect that, if the assignor is the tenant, the assignee is still bound by the covenant, apart from where the assignor was not bound by covenant immediately prior to the assignment. For a lease to terminate lawfully, contract law states that there has to be a material breach. What then amount to material breach? This has been illustrated in the case of Fitzroy House Epworth Street (No.1) Ltd v Financial Times Ltd.25 A tenant’s right to break prior to the expiration of the contractual term is common. The option to break is conditional on the tenant compliance with the materials of the contract as to the obligations, either express or implied. There was substantial material compliance by the tenant. He had even engaged the landlord in the joint survey process so that there could be agreement as to the material compliance. Landlords declined the engagement and got his own survey report on defects and failed to share this with the tenant until later, after the break clause. The tenant spent 1 million pounds and vacated when the date to break was due. It was held that landlord had simply proved a few important items of repair. In a previous case of Commercial Union Life Assurance Co. Ltd V Label Ink Ltd.,26 It was held that qualification of “no material breach” was intended to reduce the rule requiring strict compliance with other lease obligations, so that the option to break was not forfeited by trivial breach where there were efforts to comply with material compliance.27 On Fitzroy appeal, the court agreed that the intention of using the term “material” in the break clause was to lessen the need for total compliance, with all the covenants. Tenant’s attempt to adhere and landlord failure to comply is of no relevance. The court made it unequivocal that, where the break clause was unconditional, then any breach would preclude the application of the break. Under section 6 of Landlord Tenant Act of 1995, if the landlord gives the entire reversion of let premises, he can obtain an application to be freed from the covenants under section 8.28 Upon selling the freehold reversion of the leasehold to Edward, Brand may apply for the release of the covenant between him and James. But, James had breached the terms of the agreement by subleasing the property in question without consulting Brad. The sublease was therefore void ab initio. The arrears as to the rent claimed against Ravi was hence avoided. Section 7 provide that, if the landlord gives the reversion, and immediately prior to the reversion, a previous landlord remains bound by covenants, the previous landlord may make an application to have himself freed completely under section 8, if he does not remain the landlord of any other premises demised by the tenancy.29 Edward was the rightful owner and consequently the landlord of the premises. Any claim against the premises was to be sought by him. But having ascertained that Ravi was in the premises through previous breach of the contract, the only remedies available are injunctive orders and damages which may be avoided too. Bibliography List of statutes The Property Act, England 2008 Landlord Tenant (Covenants) Act 1995 List of Cases Commercial Union Life Assurance Co. Ltd V Label Ink Ltd [2004] ch 67 QB Fitzroy House Epworth Street (No.1) Ltd v Financial Times Ltd. [2000] QB Ch 126. Makin v Watkinson (1870) LR 6 Exch 25 O’Brien v Robinson [1973] AC 912 Petra Investments v Jeffrey Rogers [2000] 3 EGLR 120 Saeed v Plustrade Ltd, [2002] 02 EG 102 (CS) Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Squire) Ltd [2007] EWHC 212(Ch) Books Dukeminier, J, Krier, J and Schill, M, Property, 7th edn, Aspen Publishers, London, 2010. Epstein, RA, Economics of Property Law (Economic Approaches to Law Series) Edward Elgar Publishers, London, 2007. Helewitz JA, Basic Real Estate and Property Law for Paralegal, 3rd edn, Aspen Publisher, London, 2012. Hovenkamp, H, Kurtz, S, and Boyer, E, Principles of Property Law Concise Horn Book: An Introductory Survey, 6th edn, West Group Publishers, London, 2005. Jackson, P & Wilde, CD, Property Law, Ashgate Publishers, Leister, 2000. James, F, Process of Conveyancing (Straight Forward Guide), Straight Forward Publishing, London, 2008. Krier, J, Gilbert Law Summaries on Property, 17th edn, Gilberts Publishers, London. 2006. Mackenzie, JA, and Philips, M, Textbook on Land Law, 13th edn, Oxford University Press, Oxford, 2010. Moran, A, Commercial Property Law, 1st edn, Learning Matters Ltd, Manchester, 2006. Reid, K & Gretton, LG, Conveyancing, Rev edn, LexisNexis UK, London, 2004. Richards, M, and Abbey, R. A Practical Approach to Commercial Conveyancing and Property, 4th edn, Oxford University Press, Oxford, 2009. Roberson, C, The Landlords Book of Forms and Agreements, 1st edn, McGraw Publishers, London, 2005. Sinclair, JH, Handbook of Conveyancing Practice in Scotland, LexisNexis UK, London, 2002. Stoebuck, G, Stoebuck and Whitmans Law of Property, 3rd edn, West Publishers, Portsmouth, 2000 Read More