Beneficial Interest in Land Law - Essay Example

Beneficial interest in land law Part I: Advise Jane as to whether Maryam has any enforceable interest in Smithy House The issue regarding whether Marryam has an enforceable interest in Smithy House first depends on the status of the relationship between David and Maryam. According to the provisions of section 1 (a) of the Trusts of Land and Appointment of Trustees Act (1996)1, in a property that is registered under a sole owner, the entitled-owner has a better title to occupy and live in the property. In addition, this law provides that where the title to the property has been registered under a joint ownership, the joint parties to the title have the right to occupy the property. Further, under section 59(1) of the Matrimonial Homes (Family Protection) (Scotland) Act (1981)2, a non-entitled spouse who is legally married to the entitled-spouse has two rights as related to the property of the entitled spouse, namely (a) the right to continue to occupy the matrimonial home and (b), the right to enter and occupy the matrimonial home, if not in occupation. In this case, Marryam is not in occupation of the home, since she has been out of the home in a rehabilitation clinic recovering from depression. Therefore, Marryam can only have an enforceable right as provided in the Matrimonial Homes (Family Protection) Act (1981), if she is legally married to David. This is because, despite the fact that the two spouses contributed to the purchase of the Smithy House property, Marryam was not registered in the title deed as one of the owners, owing to the fact that she was handling the issue of divorce with her previous husband, and thus did not want to complicate the issue. Therefore, the fact that Marryam is not registered in the property title deed as one of the owners of the property means that she can gain a better and enforceable title to claim the property, if she is a legally married spouse to David3. The principle of property ownership is well provided for under section 52(1) Law of Property Act (1925)4, which provided that a conveyance into a better title for all claimants to a property will result from the registration of joint names in the property deed. Thus, according to the provisions of this law, for as long as the property title does not bear the joint names of the property owners, then the property owner whose name solely appears in the property deed has the right to (i) force the other party to live the property without a court order, (ii) rent out or sell the property without getting the consent of the other party and (iii) take out a loan against the property without consulting or seeking the consent of the other party5. In this respect, David exercised his right to sell out the property without consulting or even seeking the consent of Marryam, since according to the provisions of the law, David is the sole registered owner of the property, and that has the exclusive rights to exercise the decisions on the property, as the entitled-spouse with a better title to the property. Nevertheless, the principle of beneficial interest explained in details in the ruling under the case the case Jones v Kernott [2011] UKSC 536, which provides that in determining the party that holds a better title to the property, the courts should not only consider the person registered in the property deed, but must go beyond that, to establish intentions and the contexts of the parties during the time of acquiring the property. In this respect, Marryam may have a better and enforceable title to the Smithy House, if the courts would look beyond the name registered in the property deed and focus on the intention ad context under which David and Marryam acquired the property. Further, the principle of beneficial interest was previously applied under the case of Stack v Dowden [2007] UKHL 177. According to the ruling in paragraph 68 of the Stack v Dowden [2007] UKHL 17 case, the courts should establish the intentions and contexts of the property acquisition as related to the (i) reason of the purchase and registration of the property in the manner it was done, (ii) the purpose for which the property is purchased (iii) the nature of the relationship existing between the parties at the time of the property purchase and finally, (iv) how the purchase was financed. It is only upon the establishment of all these facts, that the court can be able to rule fairly and justly regarding the ownership of the property and to what extent the parties to the property conflict have beneficial interests in the property. Thus, if the provisions of the ruling under Stack v Dowden [2007] UKHL 17 paragraph 68 are applied in the case of David and Marryam, it can be deduced that (i), the reason for purchasing and registering the Smithy House property under the sole ownership of David was so that Marryam could eliminate any issues that would complicate finalizing her divorce with the former husband, (ii) that the Smithy House was purchased so that David and Marryam could live in it together, (iii) that the nature of the relationship existing between David and Marryam at the time was of a boyfriend-to-girlfriend relationship and that finally, (iv) the purchase of the property was financed equally between David and Marryam, who contributed equally to the purchase price. Therefore, applying the principle of beneficial interest as provided in the ruling of the above case, the court can find that the intention and the context under which the property was purchased and registered under the sole ownership of David, was not meant give him the exclusive ownership rights of the property. Further, the provisions of the ruling under the case Oxley v Hiscock [2004] EWCA 5468 offered that it is incumbent upon the courts to evaluate the ownership of the property rights, not based on whose name is in on the property deed, but also based on two factors namely (i) the existence of a constructive trust and (ii), how the share of the property price was shared between the entitled-party and the non-entitled property owners. In this respect, it can be found that a constructive trust existed between David and Marryam, and they shared the property price equally, towards the purchase of the Smithy House. This also gives her equal and enforceable rights to the property9. Thus, the advice holds that Marryam has an enforceable interest in Smithy House, which is in fact, inalienable. Part II: Whether Jane herself has any rights in relation to the benches and chandelier The issue of whether Jennifer has enforceable rights to the benches and chandelier can be established through the evaluation of the definition of conveyance process as provided for under the property laws of the UK. According to the section 2(1) of the Conveyancing and Law of Property Act (1881)10, land has been defined as land of any tenure and the tenements and hereditaments associated with it, including houses and other buildings within the undivided share of the land. Thus, the transfer of land and associated property to Jennifer by David should entail the whole of these items, including the benches and chandelier, which are part of the hereditaments of the property11. Further, the conveyancing process, as provided for under section 7(2) of the Law of Property Act (1881)12, offers that the buyer should be informed of any actual or intended alterations, extensions or additions to the property. Thus, it is incumbent upon the seller of the property to disclose any changes that are to be made to the property before the contract for sale has been signed, to allow the buyer to consider if the changes alter the material value of the property13. Additionally, under Chapter 20 of the Conveyancing and Law of Property Act (1967)14, the buyers of land and associated property have the obligations to evaluate whether the structural alterations, conversions and extensions done on the property have the necessary permission, planning and licensing, before they sign the contract for the purchase of the property. Thus, the buyer can refuse to a sign contract of purchase of property or take a legal action against the seller, on the event that such structural alterations have been made without the correct planning or permissions15. The removal of the benches and the chandelier from the Smithy House property that Jennifer was purchasing was done without any proper planning, permission or approval of the prospective buyer of the property, which gives the buyer the right to take legal action against the seller. Further, according to the provisions of chapter 22 of the Law of Property Amendment Act (1859)16, the last minute closings of the property sale contract may involve minor activities such as evictions, repairs and "broom cleaning" the premises, all of which should happen under the watch of the buyer. The removal of the chandeliers did not happen under the watch of Jennifer as the prospective buyer of the property. Thus, Jennifer has an enforceable right to take legal action against David, for the restoration or payment of damages for the removals. Bibliography 1. Trusts of Land and Appointment of Trustees Act (1996) 2. Section 59(1) of the Matrimonial Homes (Family Protection) (Scotland) Act (1981) 3. Harpum, Charles. The Law of Real Property (London: Sweet & Maxwell, 2011). 4. Section 52(1) of Law of Property Act (1925) 5. Cohen, Morris. "Property and Sovereignty." CLQ 13 (2008): 8–30. 6. Jones v Kernott [2011] UKSC 53 7. Stack v Dowden [2007] UKHL 17 8. Oxley v Hiscock [2004] EWCA 546 9. Burns, Fiona. "Adverse possession and title-by-registration systems in Australia and England." MULR 35 (2011): 773-1197. 10. section 2(1) of the Conveyancing and Law of Property Act, (1881) 11. Wendy, Wilson . Sharing Homes A Discussion Paper, (Law Com No 278, November 2002), p7 12. section 7(2) of the Law of Property Act (1881) 13. The Law Society. The Law Society Conveyancing Protocol (Law Society of England and Wales, 2011) 1-31. 14. Chapter 20 of the Conveyancing and Law of Property Act (1967) 15. Arrunada, Ben. Property titling and conveyancing (Research Handbook on the Economics of Property Law, 2011). 12-19. 16. chapter 22 of the Law of Property Amendment Act (1859) Read More