Applying the Land Law - Coursework Example

Land Law As the new registered owner of Blackacre, Andrew will be bound only by those overriding interests that are still subsisting on the that the property has been registered, and those interests which are subsisting on the date that the title is transferred1. Since the Land Registration Act of 2002 has come into force on 13 October, 2003, any existing easements and leases need to be registered before they can be effective.2 When a lease has been granted out of the land, there is a requirement set out under Schedule 2 of the Land Registration Act that “a notice in respect of the lease must be entered in the register.”3 But at the time that Andrew has become the sole registered proprietor of Blackacre, no notices or restrictions have been entered on the register. As a result, Andrew may be able to contest the lease claimed by Zak, because (a) it has been signed only on September 1, 2008 and (b) it has not been entered in the register. Since Zak has not been using the workshop in the garden of Blackacre for any sustained long period, it would only qualify as a minor interest and being a legal lease, it can be overridden.4 Zak’s agreement with Colin is not a registered minor interest5 and has not been entered on the register. Only an equitable lease can be overridden6 and since Zak has a written agreement, this may apply in his case. The same will apply in the case of the footpath, because it is an easement, i.e, the right of one landowner to “make use of another nearby piece of land for the benefit of his own land”7 and is equivalent to a right of way. An easement is an interest in the land which will continue even if ownership of the land changes.8 Since Zak has also entered into an agreement with Colin, it may be an equitable easement under the Walsh v Lonsdale principle. The agreement about the use of the easement is also valid on grounds of the consideration paid. Zak needs to use the easement in order to access his own property, although this easement has also not been registered. When an easement is an equitable one that is openly enjoyed with the land, then it may fall within the scope of Section 70(1)(a) of the Land Registration Act, applying the precedents established in the cases of Celsteel v Alton and Thatcher v Douglas. But after the passage of the Land Registration Act of 2002, equitable easements no longer qualify as overriding interests, hence the failure to register the easement would work against Zak. But Zak would have grounds to argue that (a)he has relied on the agreement to his detriment, especially because he has also paid a 1000 pounds and (b) denying him use of the easement would deny access to his property. The folly: The question of whether or not Andrew and Alice can claim against Colin for removal of the folly and stones will depend on whether they are to be classified as chattels or fixtures because the latter accede to the realty9. Chattels on the other hand, do not attach to the property and are not conveyed with the sale. Lord Godard in the case of Billing v Pill10 defined a fixture as “a house which is built into the land, so that in law it is regarded as part of the land.”11 The purchaser of a freehold property is entitled to all fixtures on the property on the date of exchange of contracts12 but Colin has removed the folly and stones after the sale. The distinction between fixtures and chattels was laid out in the case of Holland v Hodgson as being primarily dependent upon two factors (a) the degree of annexation of the object to the land and (b) the object of the annexation.13 The folly is a wooden structure and wood structures have in some cases, been held to not be part of the realty.14 An object would be classified as a fixture or chattel on the basis of how it is fixed to the land. An object that merely rests on land by its own weight would be held to be chattel as in the case of Hulme v Bingham15 where machinery that was heavy but unattached to the land was held to be chattel. In this instance the wooden folly rests on stone pads and is not attached to them, with the stone seats each weighing 150 kilos being placed beside it. Where stones are concerned, Blackburn J in Holland v Hodgson has stated: “blocks of stone placed one on top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels.”16 From the perspective of degree of annexation, it could be argued that the folly and stones are chattel. Applying tests17 laid out in recent case law, it would be necessary to determine whether the object has been thus set up for better enjoyment as a chattel or whether it has been erected to bring about a permanent improvement to the property18. In the case of Leigh v Taylor19, valuable tapestries which had been affixed to the walls such that they could be removed without structural injury were held to be chattel. But in Elitestone v Morris20, a wooden bungalow not physically annexed to the land was held to be part and parcel of the land itself. Factors taken into consideration included the question of restoration of the article from its constituent parts and its degree of permanence, hence an object may be considered irremovable because it is part and parcel of the land.21 Taking the purpose of the installation of the folly into consideration, it would appear to be a permanent improvement to the realty and to enhance its value rather than a temporary set up to be enjoyed as a chattel. Hence it may be considered irremovable because it is part and parcel of the land, thus Alice and Andrew may be able to recover them from Colin. Alice’s rights: The title of Blackacre rests entirely with Andrew, but Alice may be able to claim a share of the profits he receives from the sale of the property in proportion to her original investment in Whiteacre, because this investment has gone into the purchase of Blackacre. In Petitt v Petitt22 the Court rejected the doctrine of family assets, wherein joint occupation of a property automatically allows for a beneficial interest in it. Thus, the mere fact that Alice and Andrew are married will not automatically entitle her to a share in the property. However, a beneficial interest may be established through a contribution to the purchase price or indirectly, by adding to the resources for acquisition of the property. Lord Bridge23 has clarified that neither fairness nor a common intent can be the basis for acquisition of beneficial interest, but any indirect contributions can earn a beneficial interest if based upon an agreement between the parties. Oxkey v Hiscock however, established that fairness would apply to the extent that “each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.”24 The contributions of Mr and Mrs Oxley amount to a percentage breakdown of 59.6 to 40.4, hence distribution of assets was made on a 60:40 basis. In the case of Stack v Dowden, Stack had contributed half of the joint mortgage for an earlier home purchase and the Court of Appeal held that she was entitled to 60% of the proceeds from the sale of the second property25. The precedents set in the above cases may also apply in the case of Alice, allowing her to claim a share in the profits because she has a beneficial interest in the property. Since she has contributed a 10% share in the purchase of the earlier property, she may be entitled to a proportional share in the profits from the second property. The Court may also take into consideraiton her indirect contributions to the property, for example that she invested her life savings in the first property and this was used for the deposit on Blackacre. It may also be noted that in the earlier cases, titles were not registered in the names of the female claimants, but the Courts had allowed recoveries against beneficial interest for efforts put into the property, such as in Stack v Dowden, where the Court found that both individuals had put in their best for their marriage and their beneficial interests were equal. Alice may also enjoy an equal beneficial interest applying this criterion, entitling her to a proportionate share of sale proceeds. 1498 words Bibliography Gray, Kevin and Gray, Susan Francis, 2006. “Land Law” (4th edn), Oxford University Press. Halsbury’s Laws of England. Easements and Profits a prendre (4th edn) Kirtlan, Yvonne, 1997. “Land, fixture or chattel?” Estates Gazette, 14 July Sexton, Roger, 2004 Land Law Textbook. Oxford University Press Legislation cited: Land Registration Act of 2002 Law of Property Act of 1925 Cases cited: Abbey National Building Society v Cann (1991) AC 56 Billing v Pill (1954) 1 QB 70 Elitestone Ltd v Morris (1997) 1 WLR 687, HL Hodgson v Holland (1872) LR 7 CP 328 Hulme v Bingham (1943) KB 152 Leigh v Taylor (1902) AC 157 Lloyds Bank v Rosset (1991) 1 AC 107 HL Oxley v Hiscock (2004) EWCA Civ 546 at 69 Petitt v Petitt (1970) AC 77 HL Rex v Otley (1830) 1 B and Ad 161 Stack v Dowden (2005) EWCA Civ 857 Taylor v Hamer (2002) EWCA Civ 1130 Read More