Land Law and Interest - Essay Example

LAND LAW The issue in respect of Patsy’s interest requires discussion of expressly created trusts. It is a settled principle that land conveyed to two people is held in trust by them for themselves as either joint tenants or tenants in common1. However, when the legal and equitable owners are same and when they are not, an express declaration in respect of the equitable ownership and trust of land is required2. Thus, as Harry was the legal owner and Patsy had possibly acquired an interest under the express trust. The requirement of s.52(1) of the Law of Property 1925 is satisfied as can an express trust had been drafted in writing3. Thus due to co-ownership, by creation of the express trust the legal owner holds the property on trust for himself and for the other in equity4 . Therefore Patsy had an equitable interest in the land. 5 Another way which she could claim an equitable interest is the contribution of purchase price despite her name not being on the legal title.6 Her share could be of one quarter as tenant in common in accordance with the purchase price. 7. The courts have awarded higher award a higher share in property than price paid in purchase price8, however, intention rather than contribution is also looked into.9 If an overrirding interest is found that is a bare trust then the purchaser gets no compensation. Due to an express trust that had been drawn, Patsy cannot claim resulting trust.10 In respect of the purchase by Robert, if land is purchased from two or more legal owners then only can the equitable interest be transferred to the purchase price11 and as per the current scenario the purchase has been made from sole trustee that is Harry and therefore overreaching cannot occur.12 A person in actual occupation might claim his interest but there are exceptions13. The exception that might apply in the current scenario is that where actual occupation would not have been obvious on reasonable inspection of land and of which the transferee was not aware14. The paragraph has been approved and stated that the notice concept should no longer be returned to15. 16 Furthermore it has been found that actual occupation need not be permanent, continuous and uninterrupted.17 Thus if it can be successfully argued that Patsy’s interest could not have been ascertained on reasonable inspection because of her stay at another place during weekdays, then this would be overreached18 . However, a strong rebuttal would be that Patsy’s belongings including her would have been present and thus it could have been ascertained19. Thus if it is overreached then she can claim from the purchase price otherwise it would bind Robert. As far as the easement granted expressly to David is concerned, this can only be legal if it had been registered and such should have been entered so as to bind subsequent purchaser. Legal easements can only be overriding if overriding created by implied reservation, implied grant or created by prescription20. It has been argued by critics that the notion of the estate in determining easements is also relevant. 21Overriding interests can be claimed those who have an interest in land.22Thus on the facts if equitable easement is found they would not be binding on the purchaser as they have not been protected by entry on the register of title by way of notice23. Thus the effect of non registration would lead to David’s interest not being binding on the purchaser and thus would attach to the purchase price.24 Under LRA 2002, right of pre-emption is an interest in land from the date of creation. Thus the seller can be said to be bound the pre-emption right as in the current situation Harry has failed to comply with his obligation to first offer the property to David25, however damages can be claimed from seller26. Thus if protection on the register has been made then the right would bind the purchaser and Harry might be asked to pay from the purchase price. As far as Clive’s lease is concerned, under the principles of LRA 2002, Clive would not be able to claim the lease. Firstly, because the lease was to start after the property had been sold and as such upon inspection Clive’s occupation (which was not present at that point in time) could not have been made out. Furthermore, on the facts it is evident that the interest had not been registered, thus in respect of the property no legal lease can be claimed.27 As for his equitable interest, such interest if it established would be overreached. Furthermore, the new Schedule under LRA 2002 has changed actual occupation28. Along with that it is also important to mention that the priority period would have been remaining on the property and that the lease could not have been said to come into existence. Finally a lease that has been granted needs to be registered as failure to do so would result in overreaching such an interest29. Thus Clive’s interest in respect of the property would be overreached.30 Another important contention that can be made is that the lease could not have been granted Harris as he was not the lawful owner of the property. However, this contention is likely to fail as the lease was granted in August. There are certain exclusion and it has been stated that where the lease is granted three months in advance but where the tenant has not entered in actual occupation would lead to exclusion of Clive31 Another exclusion states that where actual occupation could not have been ascertain by reasonable inspection and the purchaser is unaware of such an interest, then exclusion would apply32. Thus the lease to Clive was within the three months exclusion and could not have been ascertained by reasonable inspection and so would be invalid and unenforceable. References Chappelle, Diane. Land Law. Foundation studies in law series. Harlow: Pearson Longman, 2008 (8th edition). Internet resource. Cooke, Elizabeth. Land Law. Oxford: Oxford University Press, 2006 (1st edition). Print Cursley, Joe, Mark Davys, and Kate Green. Land Law. Basingstoke: Palgrave Macmillan, 2009(6th edition). Print Dixon, Martin. Modern Land Law. Abingdon, Oxon: Routledge, 2010 (5th edition). Print. Duddington, John. Land Law. New York: Pearson Longman, 2010 (3rd edition). Print Gray, Kevin J, and Susan F. Gray. Land Law. Oxford: Oxford University Press, 2009 (6th edition). Print. Haley, Michael A, and Michael A. Haley. Land Law. London: Sweet & Maxwell, 2010 (8th edition). Print. Jackson, Nicola. "Overreaching in Registered Land Law." Modern Law Review. 69.2 (2006): 214-241. Print Lyall, Andrew “What are easements attached or appurtenant to” Modern Studies in Property Law: Volume 5 (Publication Review) Conv. 2010, 5, 413-419 MacKenzie, Judith-Anne, and Mary Phillips. Textbook on Land Law. Oxford: Oxford University Press, 2010 (11th edition). Print Wilkie, Margaret, Peter Luxton, and Rosalind Malcolm. Land Law. Oxford: Oxford University Press, 2009 (7th edition). Print. List of cases Abbey National Building Society v. Cann [1991] 1 All ER 1985 Bull v. Bull [1955] 1 QB 234 Chhokar v. Chhokar [1984] 14 Fam Law 269 Goodman v. Gallant [1986] 2 WLR 236 Hodgson v. Marks[1971[ 2 All ER 684 LF v. LF (unreported case) Lee Parker v. Izzet [1971] 1 WLR 1688 Lloyds Bank v. Rosset [1991] 1 AC 107 Rodway v. Landy[2001] EWCA Civ 471 Roy v. Roy[1996] 1 FLR 541 Tiffany Investments Ltd v Bircham and Co Nominees (No2) Ltd [2003] EWCA Civ 1759 Tinsley v. Milligan [1994] 1 AC 340 Wheeldon v Burrows [1879] 12 Ch D 31 Williams and Glyn’s Bank v. Boland [1981] AC 487 Read More