Co-Owner Ship of the Property - Essay Example

Land Law Prepared by Submitted to Word Count 1. Introduction The issue in this case is about co owner ship and the consequences faced when the property is in mortgage and one of the co owners declared bankrupt. Here the role of trustees and the third parties come into existence, when another co owner is unable to buy the property. The issue is that there is pressure for sale of the bankrupt person’s property and the trustee for bankrupt is facing the legal issue about the co-owner ship of the land of Bethan. This should be according to the land law enacted after 1997. While implementing fundamental land law the reformation of law relating to trusts of land as opposed to revolution comes into the fore. Though there is a settlement, it may surface in a new form. It is to be noted that the consultation of beneficiaries and getting consents to the exercise of trust powers remain virtually unchanged. 1 2. Co-Owner Ship of the Property When the property is registered by the partners jointly they have common ownership rights. As there is no severance of relationship, the responsibilities will prevail along with the rights. As they are having equal rights and their relationship is intact, co ownership aspect in the land may result in selling the land and clering the debts. There is no chance of selling the land tht comes under the share of Bethan. This is due to the fact that the co ownership of the land will result in common ownership and the sale also need to be based on common transfer of right. This means that the land should be sold and the amount need to be spent on the credits of both the owners on a common basis. 2 3. Land Registration As per the law the Crown is the only absolute owner of the land in England and Wales. The remaining owners only hold the estate in land. The estate in fee simple absolute in possession is generally known as freehold. Apart from estate from the ownership, Andrew and Bethan will have the benefit subject to the other interests. They are rights and obligations regarding to owner and third party. Here in this case the obligations of the owner and the rights of the third party need to be considered as one of the common owner has been declared bankrupt. According to the land registration act 2002, there are methods of protecting the interests of third parties over registered land. The encumbrances can be protected by issuing notices by third parties like trust of bankruptcy, easements and covenants. The restrictions can regulate the circumstances of disposition of registered estate or charge can be the subject of an entry. The people who may be the third parties or trustees can apply for their right on the land with the help of a practitioner. 3 According to the basic tenet of economics in a free market the resources can be bid into their Maximum productive use. According to the law there should not be a prohibition against alienation as this may result in unproductive use. The certainty in ownership and security for credit will support the land market. The investor and financier desires the assurance that the investor or the trustee want the assurance of the borrower’s right to alienate the property rights attached to the land. The right to alienate the property includes the right to pledge the property as security to raise the loans. When the loans are to be cleared and there is no source, the land can be claimed by the investors, financiers or the creditors. In this case the creditors can pressurize the trustee of the bankruptcy to get hold on the property of the Bethan. Though the land is in the common ownership and there are minors as the successors of the land, the rights of the co owner and the minors cannot override the rights of the investors, creditors and the financiers who gave credits to the owner of the land. In this context the law tells that there is a right to them to alienate some of the bundle of rights included with ownership. In this context the owner can and need to transfer the rights to the ownership of the land. The decision maker bears the consequences of the decisions, whether they be gains or losses. In the case of Bethan, the decisions of her, which caused the bankruptcy forces her to face the consequences of her decision of taking credits from the creditors. Effective land information is an important need for the effective land market. The part of gathering information will be part of the transaction cost and this will be born by the owner if he/she resists the deal according to the bankruptcy of the Bethan. According to the accepted guidelines, the land administration recognizes the requirement of the public register that contain all essential judicial information. This will allow any one viewing the system can understand the transactions on the land. The case of the coowner ship of the land like that of Andrew and Bethan, the trustee for bankruptcy can claim for the right of the creditors of Bethan on her land of common ownership. 4 4. Contexts of Restrictive Covenants Any easement can be extinguished by necessary implications. In this case a statute authorizes an action that is physically inconsistent with the continuance of the easement. In case of bankruptcy the creditor can use the rear area of the property to get the right of access over the land. The notice of the bankruptcy can put the landlord under a statutory obligation. This can build a wall that can make inevitable of the execution of the easement obstruction. According to the decisions of high courts in some cases, the co ownership of the land can be used to serve notice on the owners. As Andrew and Bethan are not married and living together, the part of the share of the Bethan in the fee sample land can be used to clear the debts of the creditors through the trustee of bankruptcy. In the cases like Bethan and Andrew, the high courts need to consider about the agreement for the sale and purchase of property. The consequences of the bankruptcy attest to trustee the right and responsibility of the liquidation of the properties of the bankrupted person. These types of transactions contain essentially two parts. The Bethan’s company on the name of Bethan took credits and her properties were mortgaged. As Andrew was unable to buy the Bethan’s property, the principal sum cannot be repaid immediately. The repayments on mortgages can be done by Andrew. If those repayments are able to clear the debt of the Bethan’s garage, the prinicipal amount of GBP 85,000 can be cleared in the installments. As the repayments cannot be done as a whole under one payment there is no chance of occupying or selling the land as long as Andrew was ready to pay for the repayments under the mortgages of her property. The mortgages of the property receive the payments under installments as long as the person is not declared bankrupt. In this case Bethan has been declared bankrupt and the creditors have the right of selling the properties of Bethan for the clearance of their credits. There is a chance of proceedings to take a circuitous route as Andrew is ready to pay for the repayments of the mortgages. So there is a chance of delaying the sale of the properties of Bethan as long as Andrew is ready to pay for the mortgages and can go to the court for that. So, in this case, the trustee of bankruptcy need to be clear the readiness of the Andrew to repay for the mortgages. Before the trustee of bankruptcy goes for the settlement of the creditors with the share of the Bethan’s property, there is a need to obtain permission from the court overriding the right of the Andrew in repaying the payments of mortgages. This can be made possible according to law, because the mortgages repayments can be done as long as there is no bankruptcy. After the person has been declared bankrupt, he/she will get the chance or responsibility of paying or settling the debts of the creditors by selling the properties owned by him/her.5 5. Mortgages and Bankruptcy An individual can be declared according to insolvency act. A supervisor or a trustee of the bankruptcy will appointed and was appointed in the case of Bethan. At first he need to receive the person’s earnings. The trustee has the need to receive the earning and allot an amount of money for the livelihood of the person and the remaining amount can be reserved for the benefit of the creditors. In the case of Bethan, she is having monthly earnings to pay for the mortgages in the form of repayments from Andrew. As long as she repays and if that repayment is completed in three years, they can save their land from selling to settle the claims of her creditors. If the bankruptcy has been completed three years of time, the property can be automatically sold and the debts can be cleared. If not, the creditors need to take the monthly earnings of the person or her partner in the form of clearance of their debts. So, they have to wait until three years if Andrew is ready to repay for the mortgages. If he was able to pay for the mortgages, there is no chance of going to sell the share of Bethan from the co ownership land. 6 References 1. Michael Draper, Part I of the Trusts of Land and Appointment of Trustees Act 1996 Reformation or Revolution, Springer link, http://www.springerlink.com/content/g3l3807277155266/, 2004, 22-4-07 2. F.J. Haskins, P J G Atkinson, OWNERSHIP EN INDIVIS, Jersey Legal Information Board, http://www.jerseylegalinfo.je/Publications/jerseylawreview/Oct03/JLR0310_Case_Summaries.aspx, 2003, 22-4-07 3. Crown, Explanatory Notes to Land Registration Act 2002, Crown, http://www.opsi.gov.uk/ACTS/en2002/2002en09.htm, 2002, 22-4-07 4. Malcolm McKenzie PARK, Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy, Department of Geomatics The University of Melbourne, 2003, http://eprints.unimelb.edu.au/archive/00000328/01/Park.pdf, 22-4-07 5. Dan V. Wedge, Boundaries and adverse possession, Propertylawuk.net, http://www.propertylawuk.net/download/PropertyLawUpdate_2006_02.pdf , 2005, 22-4-07, 6. Manning stainton, Glossary of terms, Manning stainton, http://www.manningstainton.co.uk/mortgages/glossary_of_mortgage_terms/index.html, 2007, 22-4-07 Read More