Maudsley and Burn's Land Law - Essay Example

 Maudsley and Burn's Land Law Part A i) The items removed from the property Since there is no specific law dictating what becomes of fixtures and fittings situated on property after its sale these items are negotiated prior to the completion of sale.1 These difficulties are usually overcome by the attachment of a questionaire or inventory of the fixtures and fittings to the contract for sale of the property and specific note is taken of those items that are included in the sale and those that are not.2 In the event no such questionaire is included with the contract it is generally assumed that all fixtures are included in the sale of the land. The Law Society Convenyancing Protocol requires in general that the vendor provide advance notice of any or all fixtures that he or she intends to remove from the property upon giving up vacant possession. If no such warning is provided the purchaser is entitled to assume that the fixtures are part and parcel of the purchase price.3 A conveyance for the sale of land is assumed to be inclusive of all things that form a part of the land unless it is specifically excluded.4 Fixtures are generally considered to be a part of the land if they are annexed to the land or the building in a manner that can be deemed substantial.In Holland v Hodgson [1872] LR 7 CP 328 Blackburn J determined that a chattel is a fixture if it cannot be removed from the property without causing damage.5 In Deen v Andrews [1986] 1 ALL ER 262 it was held that if an item was attached to land by its own weight it would be deemed a chattel and not a fixture.6 Applying these tests to the Green’s case the items removed were fixtures. The ferns were not supported by their own weight and were attached to the land. The arch, carpets and the hot tub were also not attached by their own weight. It is assumed that these items all required severance from the land to a degree that altered the value of the property and thereby causing some residual damages. Moreover, Brown’s actions were not only inconsistent with the Law Society’s Conveyancing Protocol, it was consistent with Section 62 of the Law of Property Act 1925 which mandates that unless otherwise expressly agreed the fixtures are to run with the land. It is unlikely that the fountain which was described as ornamental will be seen as anything more than a fitting in which case it does not run with the land and Brown was at liberty to take possession of it. Therefore, the Greens may recover all the items removed with the exception of the ornamental fountain. ii) The Annex The covenant between Mr. White and Mr. Brown is not necessarily binding on the Greeens as succesive owners and occupiers of the property subject to the covenant. A covenant can be either positive or negative and runs with the land if it touches and concerns the land that it impacts. In Mayor of Congleton v Pattison (1808) 10 East 130 the court ruled that a covenant touches and concerns the land in the following scenarios: “…the covenant must either affect the land as regards mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land.”7 In order for the covenant to bind successive owners the conveyance creating the covenant must refer to the third party.8 In the case of Halsall v Brizell [1957] Ch 169 purchasers of plots of land covenanted by deed of purchase that they together with any successors in title will make contributions toward the maintenance of sewers promenade, sea wall and roads. The House of Lords ruled that: “The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits."9 Based on this ruling from the House of Lords since the Greens have no benefit to gain by observing the covenent between Brown and White they have nothing to lose by denouncing that covenant. The Greens can therefore construct the Annex. iii) Adverse Posession Whether or not Mrs. Gray was dispossessed of the strip of property by vitue of the doctrine of adverse possession will depend upon the number of years that Mr. Brown enjoyed quiet and uninterrupted possession of it. The Limitation Act 1980 makes provision for a claim for recovery of land only in circumstances where a squatter is in adverse possession, and the action will be statute-barred if it is not commenced within 12 years from the date of the dispossession.10 Therefore if Mrs. Gray turned a blind eye for 12 consecutive years she is statute barred in respect of claiming recovery of the property. It does not matter that the land has changed hands. According to the House of Lords’ ruling in J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 the House of Lords when possession is changed by virtue of inheritance that possession is said to continue. In any event if the property changes hands and the possession constitutes essentially the same activities and/or nature of possession, that possession continues and computation of time will commence from the time of the initial possession.11 Lord Wilkinson-Browne explained that for the purposes of making a claim in adverse possession: “…the only question was whether the squatter had been in possession in the ordinary sense of the word… The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”12 Mrs. Gray herself admits that Brown never had her consent to possess the strip of land. It would appear that whe merely turned a blind eye because she had tired of fighting with Mr. Brown. Therefore the essential elements of adverse possession have been established and the Greens are free to make an application for title to the disputed strip of land. iv) Ms. Silver Ms. Silver’s claim is essentially that Mr. Brown held the title to the property subsequently sold to the Greens upon trust for her and Mr. Brown. By virtue of the Land Registration Act 2002 Ms. Silver does not have a valid claim unless she took the requisite measures to register her interest in the property with the Land Registry.13 The land purchased by the Greens is registered land and as a result they are entitled to rely upon the Land Registry’s records. This concept is consistent with the mirror principle. The mirror principle was enunciated by Phillip JA in Re Cartlidge (1987) 34 DLR 161 when he said: “The register is everything; an owner’s title is conclusive and persons dealing with registered owners are not required to go behind the register”:14 Moreover, the curtain principle ensures that the Greens’ possession of the property is not overreached by Ms. Silver’s equitable interest. The curtain principle refers to trusts which are not reflected in the particulars of title so as to facilitate the smooth conveyance of the legal estate. The insurance principle implies that the state guarantees the title and any mistake in the registry is capable of rectification with compensation.15 Trust connected to registered land will typically not be subject to registration and as such will not appear on the register. This enables third parties to engage in transactions to be content with the knowledge that the equitable interest associated with the trust will be overreached.16 In all the circumstances, Ms. Silver’s claim is against Mr. Brown and not against the Greens. Fortifying the theory that the land registry should reflect an accurate picture of registered land, the interests and rights of a person who is in actual occupation of the land in question will not function to override the interest of a purchaser where:- 1) Enquiries were made of the occupier and he neglected to disclose that information where he might be reasonably expected to do so; or 2) The occupier’s actual occupation is not evident upon an inspection of the property and the occupier did not have knowledge of his interest at the time of purchase.17 This part of Section 71 of the 2002 Act replaces and alters the provision of the Land Registration Act 1925 Section 70(1)(g) in respect of the interests and rights of occupiers of land. What the 2002 Act does is make a distinction between discoverable interests and undiscoverable interests. The Land Registration Act 1925 made no such distinction and protected the interests and rights of occupiers.18 Part B i) The Strip of Land The Land Registration Act 2002 changed the essence of adverse possession in respect of unregistered land. The rights and interests of the actual occupation of premises are overriding only insofar as those rights coincide with actual occupation. The impact of this right under the 2002 Act reverses the decision in Ferrishurst Ltd v Wallcite Ltd [1999] 05 EG 161 which essentially held that a purchaser takes title subject to the interest of an occupant whether the interest is registered or not. The spirit and intent of the 2002 Act suggest that actual occupation does not guarantee the existence of any right, but a mere warning.19 The Land Registration Act 2002 now changes the right to acquire title in situations where the claimant believed that he or she owned the property for at least ten of the years to which he claims to have been in adverse possession.20 Under Schedule 6 of the Land Registration Act 2002 provision is made for a new scheme in respect of adverse possession of a registered freehold. By virtue of Section 96 of Schedule 6 of the 2002 Act, Adverse Possession, no matter how long it is enjoyed, will not interfere with the actual owner’s right to apply for obtain registration of his estate in the land.21 This provision applies to registered title only and will not apply to property that is unregistered. Since Mr. Brown could not have possibly believed that he owned the unregistered property for at least ten years given that Mrs. Gray is the proper owner and did in fact assert her right. If the property was not registered Mr. Brown would not have effectively dispossed Mrs. Gray and the Greens by extension would not have continued the dispossession. ii) Mrs. Silver’s Claim If the land purchased by the Greens had not been registered it would follow that Ms. Silver’s equitable interest in the property would also not be registered. Therefore her interest in the land as an actual occupant would have been overreaching but only if he interest could have been discovered upon a reasonable inspection of the property and all reasonable enquiries. It would appear that the Land Registration Act 1925 would apply. A serious difficulty encountered as a result of the 1925 Act was demonstrated in the case of Williams & Glyn's Bank v Boland [1980] 2 All ER 406 and Abbey. In this case the House of Lords held that a bank seeking to foreclose on a home that it held as security for a loan was bound by the third party interest of the homeowner’s wife who was in occupation and was therefore not entitled to vacant possession. The result of this finding is that a beneficial interest existing under a trust under real property and which might or might not have been registered was capable of binding a bona fide purchaser.22 In the case of unregistered land the position remains the same. In the end, if the property was not registered the onus is on the Greens to prove that they had conducted reasonable inspections of the property and were unable to discover an overreaching interest. The affect of this is that the purchaser takes the legal estate free of the equitable interest. The beneficiary’s right of action will lie against the trustee.23 As in the case of registered title, Ms. Silver’s claim is against Mr. Brown. Bibliogrpahy Amsprop Trading Ltd v Harris Distribution Ltd and another [1997] 2 ALL ER 78 Burns, E.H. Maudsley and Burn's Land Law Cases and Materials. (2004) University Press Oxford Deen v Andrews [1986] 1 ALL ER 262 Ferrishurst Ltd v Wallcite Ltd [1999] 05 EG 161 Halsall v Brizell [1957] Ch 169 Holland v Hodgson [1872] LR 7 CP 328 J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd020704/graham-1.htm Viewed January 5, 2008 Law of Property Act 1925 Law Society’s Conveyancing Protocol Limitation Act 1980 Mayor of Congleton v Pattison (1808) 10 East 130 Re Cartlidge (1987) 34 DLR 161 Wolfson v Reg Gen (1934) 51 CLR 300 Williams & Glyn's Bank v Boland [1980] 2 All ER 406 Read More