Foundations in Law and Property - Essay Example

Foundations in Law and Property Case Coburg Square No, the Residents’ Association cannot prevent Lewis Knight from pursuing his plans for the Coburg Square unless the assent executed by Lewis granting self-ownership of the property violated his administration of the estate. The general rule is that the administrator must first settle all the obligations and liabilities of the estate before pursuing the administration in accordance to the rules on intestacy (Harris 2002). Assuming that the assent executed by Harris was in accordance with the Administration of Estates 19251, the next step to do is a perusal of the tie that bound the deceased to the Residents Association and a determination whether Lewis is bound as well to the agreement. The facts of the case states that the deceased and all other residents of the area covenanted with the Association to pay the annual dues and abide by the regulations of the latter in return for the maintenance of its internal and external condition of the housing area. The definition of a contract according to Blackwell is an “agreement upon sufficient consideration, to do or not to do a particular thing” (qtd. Stanley 1998). This implies that a contract depends upon the existence of an agreement, a sufficient consideration and an object of the agreement. The book Construction Law Handbook provides that there are four key elements for a contract to be valid. A contract must have “an agreement between the parties; an intention or a communication to be legally bound by that agreement, certainty as to the terms of that agreement, and consideration provided by each of the parties” (Limited 2007). From the key elements above described the, the contract between the Residents Association and the elder Knight was valid. The deceased and the Residents Association freely entered into an agreement hence; there was consent by both parties. This fact of agreement and to be bound by such an agreement was assumed to have been communicated to one another most likely in writing. The terms and the consideration of the agreement are clear which consisted, inter alia, on the part of the deceased to pay his annual dues and abide by the rules and regulations of the Residents Association with respect to the maintenance of the house. On the other hand, the Association has the duty to maintain the internal and external appearance of the property. The question however is whether or not Lewis Knight is bound by the agreement his father entered into with the Association. Since Gordon Knight died intestate, that is, without a will, the effect therefore is to for the English law to intervene which provides that his estate be conferred to his next of kin and divided (Muinzer 1987). Since the deceased did not execute a will, therefore it can be fairly presumed that there was no written provision with which the succession was qualified by an obligation on the part of his heir Lewis to apply for membership with the Residents Association. There is no contact therefore, to speak of, which binds Lewis to the Association. Case 2 Hilton Cottage Edith Lister, the owner of the Hilton Cottage is entitled to the amount of £8,500 representing the sale price of the Adam fireplace found in the Cottage by Andrew and Polly for the reason that she is the rightful owner of the property and everything on it. Adam fireplaces, according to historical records, were designed and built by the brothers Robert (1728-1792) and James Adam (1730-1794). The brothers were Scotsmen and are famous for their late Georgian architecture and interior design (Pile 2002). They built and designed housed steel grate fronts, sideboards and articles of furniture which today are considered antiques and are much sought after (Page 2007). Adam fireplaces are estimated to be more two hundred years old considering that the youngest brother was the last to pass away between the two in 1794. The question therefore is whether A law which must be considered is the English law on treasure considering that the Adam fireplace is more than two years and a determination if indeed the antique piece can be considered a treasure. The Treasure Act 1996 is a law designed to govern the discovery of treasure. A perusal of some of the provisions of the said law would place Adam fireplaces within its ambit. For instance the law says that the following, inter alia, are to be considered as treasure for purposes of the Treasure Act of 1996: (b) any object at least 200 years old when found which belongs to a class designated under section 2(1)2, and, 2) The Secretary of State may by order, for the purposes of section 1 (1) (b), designate any class of object which he considers to be of outstanding historical, archaeological or cultural importance.3 In The Treasure (Designation) Order 2002, the Secretary of State issued the ruling pertinent to the preceding provision designating the following as falling within the ambit of Section2 (1) of the Treasure Act 1996: “(b) any object (other than a coin), any part of which is base metal, which when found is one of the at least two base metal objects in the same find which are of prehistoric date.”4 Under the above preceding provision, it would indicate that the Adam fireplace is not a treasure because it does not have the necessary component (or has undetermined necessary component) which is a base metal dating from the prehistoric age. It would be most likely that the fireplace has a part made of iron part, unlikely that the iron component could date from the prehistoric age, the latter being described by historians as that period in man’s history before the advent of writing (Raun 2001). The issue at this stage therefore is what the rights of the party are in the instant case. Edith Lister is the owner of the property but has not visited the property since 1986 owing to an accident which resulted in the loss of her lower limbs. There is no mention that she is a registered owner. Otherwise, under The Land Registration Act of 2002, it would be difficult to dispossess a registered owner of his land notwithstanding that another has possessed it for a number of years. It is important at this stage to understand who has better right over the land because then it would be easy to declare who is entitled to the money in question which was the proceeds of the sale of the Adams fireplace found on the property. Under the law, a person may apply for adverse possession the land if he has occupied it for at least ten years.5 However under the case at bar, Polly and Andrew Balliol have only lived in the cottage since 2001 which means that they have only occupied it for seven years; Harry Harper took care of it from 1994 to 2001 or for a period of seven years, more or less and; Gareth Pole from 1987 to 1994, or for a period likewise of seven years, more or less. Harry Harper and Gareth Pole are automatically disqualified from any claims of adverse possession the law implies that the applicant must have held the land last since the required ten years must end on the date of the application for adverse possession.6 Assuming that Lister is an unregistered owner and adverse possession can lie against her, Polly and Andrew nevertheless has not at this point earned the right to an adverse possession because they have only been in possession of the land for seven years therefore they cannot be entitled to the proceeds of the Adam fireplace because it is found on a property which does not belong to them. On the other hand, if Lister is a registered owner, the same statement holds true with the additional assurance that under the new law,7 it is more difficult to dispossess a registered property of his/her land. In the case of Beaulane Properties Limited v. Palmer8 the England and Wales High Court (Chancery Division) Decisions defeated the claim of adverse possession of the respondent as a result of the reinterpretation of the pertinent land law in the light of the relevant provisions of the Human Rights Act of 1998 which subsumed the rights under the European Convention of Fundamental Human Rights and Protocol 1 into domestic law. The facts of that case are: the claimant has been the registered owner of a property which has an area of 2.356 acres since 1992 and the defendant has been occupying the land for more than 12 years already. In 1975, the defendant was granted rights to use a field adjacent to the disputed field as grazing for his cattle and horses. When the person using the disputed field ceased using it, the defendant extended his occupation to it by letting his animals and the animals of others who paid him grazed on it. He maintained the fences of both fields. In 1983, the representative of the disputed land’s owner wrote to him acknowledging that the owners were aware of his illegal grazing but that they were allowing it until further notice without asking him rent for it so that no tenancy can be created. They asked him to sign the paper. In 1984 the defendant became the owner of the other field he was renting. In 1986 the owner of the disputed property gave him notice to vacate because the land was under negotiation for sale. The defendant wrote back asking permission to stay on until the actual occupation of the new owners since there were squatters nearby who might enter the land. The owner agreed. In December of that year, the final sale was completed to CTN. CTN was an operator of a market chain in the area and they bought the land purely for speculation. They were aware of the presence of the defendant. There was strong evidence that the defendant had indeed been maintaining the land and the fence surrounding it. In 1988 however, CTN went into receivership and its assets were bought by Cavendish & Castle including the disputed land whose title was formally transferred to it in 1991. In 1991, Cavendish which was also experiencing financial difficulties went to see the land and saw the defendant’s animals grazing. In a subsequent letter, the company asked the defendant to explain the nature of his prior agreement with the previous owner and when he did not answer after several tries they demanded that he removed his animals in seven days. Instead, the solicitors of the defendant wrote that he is not moving out of the land on the ground of his having earned adverse possession of the land since he has already occupied it for more than 12 years. In 1992, Beaulane Properties Limited bought the property. In October 2003, the defendant filed an application for adverse possession of the land. Whilst Beaulane on the other hand, filed an action for recovery of Hilton Cottage.. Citing Powell v. Macfarlane9 and Buckinghamshire County Council v. Moran,10 the Court held that to establish possessory title, it must be shown that: the applicant had sole and exclusive possession of the land without the consent of the owner and dealt with the land as an owner would in accordance with the nature of the property and the way it was commonly used, and; that he had the intention to possess the land in his name to the exclusion of all others, including the registered owner. The Court was of the belief therefore that the defendant had established exclusive possession of the disputed property since 1986. Since at the time, the defendant had consolidated his adverse possession of the disputed property, the Land Registration Act has not yet been in force, the Court decided this matter on the basis of the previous law, the land Registration Act of 1925 which it read together with the Human Rights Act of 1998 (in reference to the First Protocol of the Convention): Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principle of international law.11 Thus, the Court held that the effect of the pre-2002 land law was to deprive the person of his property, an act which is incompatible with the Convention rights. Case 3 Highfield Gardens The purchasers of Highfield Gardens should pay to the executors of both Maureen and Lionel who are Graham and solicitors Frank Kitchen and William Leonard, respectively, in order to get a good title. The net proceeds of the sale of the property should be divided in the following manner. £100, 000 to Graham, and; £100, 000 to Betsy. In the case at bar, Highfield Gardens was held by Lionel and Maureen as beneficial tenants in common in equal shares. Under the Law of Property Act of 1925, in Undivided Shares and Joint Ownership, if “ land is expressed to be conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall […] operate as if the land had been expressed to be conveyed to the grantees…”12 Thus, if two persons held the property in ‘tenants in common,’ the property is deemed to be held in equal shares unless there is a separate deed. In the event of the death of one of the parties, the deceased’s share in the beneficial tenant in common shall not merge or pass into a common estate but shall be disposed of in accordance with the party’s will. This type of joint ownership is in contrast to the concept of joint tenancy where the property held in common is dissolved upon the death of one of the parties and its ownership consolidating on the surviving spouse (Cao 2007). Applying the immediately preceding principle of law, Lionel gets one-half of the share of Highfield Gardens, and to Maureen the other half. And because the effect of this particular property division is to confer to each party his or her share upon their death, the governing law of property disposition of which is the will in case of testacy or the law on intestacy if there is no will. Hence, upon Maureen’s death, her one-half share of property is conferred to her indicated heirs in accordance to her will, which in this case was Graham who was also appointed her sole executor, leaving nothing to her own sons and ex-husband. This is because under the English jurisdiction, the testator has an absolute freedom to dispose of his property through his or her will. There is no private law which obliges the testator to reserve a portion, for example, of her estate to forced heirs unlike other jurisdictions (Ebtehaj 2006). Thus, one-half of Highfield Gardens passes to Graham. In the case of Lionel, he left two documents: the first, a will naming Alan as his sole heir executed in 1992, and; a declaration of trust which states that he will hold all of his property as a trustee for a joint ownership of him and Betsy. If the declaration of trust is made in accordance to all required formality, what it ahs created is a joint tenancy. As what has been stated earlier a joint tenancy passes the share of one in the event of his death to another. The pertinent law states: “Where a legal estate […] is beneficially limited to or held in trust for any person as joint tenants, the same shall be held [in trust] in like manner as if the persons beneficially entitled were tenants in common…13 Joint tenancy has the effect similar to two parties executing mutual wills in favor of each other. If one of the parties die, the effect is that the property under joint tenancy will ‘devolve’ automatically to the other under the principle of and right of survivorship (Iwobi 2000). This means that if such a declaration of trust of joint ownership has the same effect as mutual wills, then the earlier will executed by Lionel revoked his earlier to his son executed in 1992. The impkication is that all his property will devolve to Betsy and not to the heirs of his son Allan. In the case of Stack v Dowden,14 the couple involved is unmarried and have been cohabiting for a eighteen years and have begotten four children until they broke up. The house upon which the cohabitation took place was bought in the name of the woman but both contributed to the payment of the mortgage. The first house however was sold and when the couple bought another house the same was conveyed in their joint names but without any declaration of trust. When the couple broke-up, the man applied for the sale of the property to which the lower granted and ordered that the proceeds be equally divided despite the proof given by the woman that she is the bigger earner of the two. The case therefore, before the court is a dispute involving the actual interests of the parties over the proceeds of the disputed property. In the lower court, the judge ordered a 50-50 distribution of the proceeds of the property on the ground that the relationship had been a long one and both have contributed their best to sustain and maintain the family despite the fact that the woman was earning much than the man. Dowden appealed and the Court of Appeals revised the judgment to reflect a 65% to 35% distribution in favor of the Dowden. Stack appealed which appeal however was dismissed by the House of Lords on the ground that the lower court should have taken into account that Dowden was the bigger wage earner between the two and her contributions to the cohabitation and the purchase of the In the present case, the declaration of trust by Lionel involved only his property, there was nevertheless an explicit intention on his part to treat the property as a joint tenancy because of the declaration of trust that he executed. Case 4 Jackson Street Yes, Tariq is correct that the property can no longer be repurchased by Aadil and Aisha because the period for such action has prescribed in accordance with the terms of agreement of the parties. Neither can Aadil and Aisha cannot demand that Tariq return the property to them. This is because the transaction between him and Aadil and Aisha was a conditional sale and not a mortgage where the law on equity of redemption can be exercised. In the case of Warnborough Ltd v Garmite Ltd, 15 the Court had the opportunity to distinguish between a conditional sale and a mortgage. The issue in this case was the existence the clog to an equity redemption, a condition in a mortgage which is surreptitiously introduced by the mortgagee to defeat the equity of redemption, which called for the determination by the Court in this case. The case is relevant to the present case because it distinguishes the conditional sale from a mortgage. In this case, Warnborough sold its property to Garmite for £130, 000. The entire amount was left outstanding and was secured on the said property by a legal charge. The payment of the charge was agreed to be made by Garmite in installment periodically by paying the principal in addition to the interest. On the same day of sale, the latter granted the former the First Option which was to repurchase the property for the same price qualified by the condition that at the time of repurchase the outstanding balance is not less than £65, 000. Three years later, Warnborough exercised the First Option which was to repurchase the property under conditions set by the agreement which was that Garmite was in arrears and that the outstanding balance is beloe that agreed upon. This repurchase however did not materialise, and instead the parties entered into an agreement for them to be returned to their original position prior to the exercise of the option. The Second Option was likewise granted by Garmite simultaneously. Two years after, Warnborough exercised the said option and Garmite objected and the former filed an action in court. Garmite’s defence was that the two options were a clog to the mortgage and equity of redemption. However, the Court held that Warnborough was correct in exercising the First and Second Options because the concept of a clog to the equity of redemption is not applicable to the case at bar on the ground that the nature of the transaction, upon closer scrutiny, was not really a mortgage but a sale. Neither was the two options considered as penalties because their enforcement had the effect of bringing only the parties to their former positions. According to Samuel Wiliston, the basic difference between a conditional sale and a mortgage is that in a mortgage there must be an existing debt which is being secured by the mortgage. The payment of this debt by the mortgagor should be absolutely necessary. If the mortgagor is not able to pay the debt, then foreclosure of the property is resorted to. However, if the grantor is given an option to pay or not and in addition to non-payment perform another action to fulfill another condition, the transaction cannot be said to be in the nature of a mortgage but a conditional sale. In the present case, Aadil and Aisha had already transferred the ownership of the property to Tariq from the very beginning as a condition to the $55,000 loan. This was then necessary for them to pay the mortgage to the bank. In a mortgage, the mortgagee does not usually transfer the ownership of the property held as security of the obligation to the mortgagor but the latter only consolidates ownership of such property in the event of non-payment of the principal debt. The transfer of the property immediately in Tariq’s name was already indicative of a sale very much like what happened to Warnborough v Garmite. Moreover, the manner of payment and repurchase would point to conditional sale rather than a mortgage because the payment of the debt was not an imperative condition with foreclosure only to be imposed contingently. There was actually no need for a foreclosure in the first place since the property was already transferred in the name of Tariq. In addition, Aadil and Aisha had the option not to pay the loan price of £55, 000 but instead were even paid by Tariq with £10, 000. References Administration of Estates Act 1925 Cao, Deborah 2007 Translating Law. Multilingual Matters, p. 72 Beaulane Properties Limited v. Palmer. 2005] EWHC 817 (Ch) Buckinghamshire County Council v. Moran [1990] Ch. 623 Compulsory Purchase Act 1965. Office of the Public Sector. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1965/cukpga_19650056_en_1 Ebtehaj, Fatemeh & Lindley, Bridget & Richards, Martin 2006 Kinship Matters. Hart Publishing, p 228 Harris, Jonathan 2002. The Hague Trusts Convention: Scope, Application and Preliminary Issues. Hart Publishing, p. 42 Human Rights Act 1998. Office of the Public Sector Iwobi, Andrew 2000 Essential Succession. Cavendish Publishing, p 22 Joint Ownership of Property An Important Choice. Levi Solicitors. http://www.levisolicitors.co.uk/resproperty.html Land Registration Act 2002. Office of the Public Sector Law of Property (Miscellaneous Provisions) Act 1994. Office of the Public Sector Limitation Act 1980. Office of the Public Sector. Muinzer, Genevieve 1987 New to the UK: A Guide to Your Life and Rights. Routledge, p. 75  Page, William. (2007). Cabinet Making and Woodcarving. British History Online http://www.british-history.ac.uk/report.aspx?compid=22163  Pile, John F. 2005 A History of Interior Design. Laurence King Publishing, p. 202 Powell v. Macfarlane. [1977] 38 P. & C. R. 452 Stack v Dowden [2007] 2 All ER 929, [2007] 2 WLR 831, [2007] UKHL 17 Stanley, Amy Dru 1998 From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation. Cambridge University Press, p. 15 Skeete v. Pick & ANR [2007] EWHC 2211 (Ch) Raun, Toivo 2001 Estonia and the Estonians. Hoover Press, p.3 Telford, Thomas 2007 Construction Law Handbook, Thomas Telford The Law of Property Act 1925. Office of the Public Sector The Treasure (Designation) Order 2002. Office of the Public Sector Treasure Act 1996. Office of the Public Sector Williston, Samuel 1998. The Law Governing Sales of Goods at Common Law and Under the Uniform Sales Act. Wm. S. Hein Publishing, p. 528. Read More