Whether the Law on Severance Should Be Formed - Coursework Example

Running header: Land Law Student’s name: Name of institution: Instructor’s name: Course code: Date of submission: Land Law Introduction Legally, notices are used to communicate responsibilities and rights to interested parties. Legal notices have different forms but this essay is going to focus on notices in (Gray & Gray 2007, p. 34). They are also referred to as written notices. Notice in writing may be taken to mean any notice given by hand delivery or regular mail. The sender usually retains sufficient proof of having issued a notice (Wickeri & Kalhan 2009, p. 12). Notices in writing are given when a person takes reasonably calculated steps to inform another person about a certain intention, whether or not the other person comes to actually know of it (Dixon 2002, p. 54). If by any chance a notice is given that is not in writing, the person who issues the notice is faced with the burden of proofing that a notice was indeed given to the recipient of the said notice (Agarwal 2005, p. 823). The notice in writing provides an easy route to severance. By contrast, severance by mutual agreement and course of dealing is problematic. This paper will discuss this statement by outlining the three methods of severance that it refers to and consider whether the law on severance should be formed. In relation to land, severance has been described as the act of dividing land without necessarily using a plan of subdivision (Hayton 1976, p. 85). It is also the act of severing a piece of land from a large tract or piece of land. In many jurisdictions across the world, the use of land requires that severances of that land to be done in a very orderly and organized fashion (Women’s Land Link Africa 2010, p. 5). This orderly and organized fashion is usually by way of having plans of subdivision. This is very effective when multiple lots of land are being created. The process of subdividing land can sometimes be very lengthy and complicated. However, there are some jurisdictions that allow severances of very minor nature to continue without having a legally acquired plan of subdivision of the land in question (Wickeri & Kalhan 2009, p. 14). This is as long as all other criteria and requirements are met or fulfilled. When such minor severances are approved by the relevant authorities, these actions are referred to as consents (Dixon 2002, p. 21). The legal authorities that have the mandate of granting these consents are usually the local planning bodies such as land division committees or committees of adjustment (Agarwal 2005, p. 824). Legally and colloquially, the term severance is mostly used to refer to the very minor divisions of land (Gray & Gray 2007, p. 56). It does not include the divisions of land that are done by following the much complicated process of land subdivision (Wickeri & Kalhan 2009, p. 18). The statement in question in this essay states that the notice in writing provides an easy route to severance. This means that writing a formal notice to inform another party about the intentions of severing land usually makes the whole process of severance much easier (Hayton 1976, p. 85). Severance usually occurs when there is joint tenancy of an equitable nature. Severance takes place when there is the need to subdivide land into portions that are deserved by those that the land is being subdivided to. Severance is a process that is currently confined to equitable joint tenancy (Women’s Land Link Africa 2010, p. 1). Severance by notice in writing is considered to be the most convenient and practical form of severance. Severance by notice in writing is usually provided by statute (Women’s Land Link Africa 2010, p. 1). A severance usually applies to joint tenancy. Therefore, a joint tenancy may sever when the other joint tenants are given a notice in writing by a one tenant of his or her desire to sever the joint tenancy (Wickeri & Kalhan 2009, p. 18). There are many other methods of severance that may also be referred to. One method of severance that can be referred to is severance by homicide (Wickeri & Kalhan 2009, p. 45). This method of severance usually occurs when there is a murder or homicide that has occurred and there is the need to subdivide the land (Gray & Gray 2007, p. 328). The other method of severance is severance by merger of interest. In this case, the process of severance is undertaken as a result of mutual the merger of interests of the joint tenants (Women’s Land Link Africa 2010, p. 2). In this case, the other method of severance that has been referred to is severance by mutual agreement. This is under severance by Williams v Hensman (1861). Another method of severance is that of severance by course of dealing. This section is going to focus on severance by mutual agreement and severance by course of dealing. Severance by mutual agreement simply refers to the case where the joint tenants make an agreement to sever the joint tenancy (Gray & Gray 2007, p. 330). Usually, this agreement does not fall under the section 40 of the Law of Property Act and it therefore needs not be in writing. Severance by mutual agreements can include all oral agreements for example made for the sale of land by one joint tenant to any other of his choice. In such a case, there is an oral and usually unenforceable agreement between the joint tenants (Women’s Land Link Africa 2010, p. 7). The joint tenants usually agree that one of them will acquire the interest of others. A severance by mutual agreement does not necessarily have to be enforceable. Mutual agreements are usual oral (Dixon 2002, p. 153). The parties concerned usually agree on a mutual basis to sell their interest over a piece of land. These oral agreements are usual taken to be mutual agreements to sever land but the agreements cannot be enforced because they are neither recorded in writing nor written somewhere (Wickeri & Kalhan 2009, p. 145). Severance by course of conduct on the other hand is a method that is usually imposed by the courts of law (Wickeri & Kalhan 2009, p. 20). In this method of severance, the concerned parties are taken as having treated the joint tenancy as very ineffective and that it would not work justice (Gray & Gray 2007, p. 333). If parties consider that they own distinct shares, all inconclusive negotiations meant to re-arrange shares may fall into this category. In a severance by course of conduct, the interests of all concerned parties are mutually treated as constituting or having a tenancy in common (Agarwal 2005, p. 825). This is very useful and relevant if one party agrees to sell his or her shares to another different party orally (Women’s Land Link Africa 2010, p. 7). One advantage of severance by written notice is that it may be very unilateral. This means that there is no consent needed from the other joint tenants (Agarwal 2005, p. 824). There is no need to sign the notice and it may simply take the form of applications for judicial determinations of the respective rights of joint tenants (Wickeri & Kalhan 2009, p. 40). Notice in writing usually makes severance more effective when there is evidence that the notice in question was duly posted to all the other joint tenants (Women’s Land Link Africa 2010, p. 8). This applies whether the notice was actually received or even read by the other joint tenants (Gray & Gray 2007, p. 328). The widespread interest in land severance policies and activities has been brought about by the increasing demand for land in different regions (Wickeri & Kalhan 2009, p. 210). There are different land severance policies that are preferred by different people (Agarwal 2005, p. 825). Land severance has been described as the authorized and legal separation or subdivision of a piece of land so as to form a new parcel of land or a new lot of land (Women’s Land Link Africa 2010, p. 5). This is commonly referred to as consent. A land severance is necessary when one wants mortgage, sell, charge and enter into any other form of agreement over a portion of their land over a period of not less than 21 years (Gray & Gray 2007, p. 328). Land severance can be a very problematic and tiring process. It can consume a lot of time and have very many complications (Gray & Gray 2007, p. 330). One needs approval to be able to sever their land (Dixon 2002, p. 12). This is because indiscriminately dividing land without the approval of a certain authority could have very serious consequences on a community (Wickeri & Kalhan 2009, p. 104). One negative effect is that the municipal services could be over extended. Severance by notice in writing is very advantageous but it also has its drawbacks (Women’s Land Link Africa 2010, p. 4). One of the greatest challenges of using the severance by notice in writing is that all the existing joint tenants must be served with written notices (Agarwal 2005, p. 834). The problem that also arises from this is that the notice in writing must express the desire to immediately sever rather than expressing the interest to sever at some later point in time (Dixon 2002, p. 15). The severance by notice in writing method is also disadvantageous in the case where the names on the legal title do not match the names of the beneficiaries who are behind the trust (Women’s Land Link Africa 2010, p. 4). The need to approve the severance of land is necessary so that new lots of land or new land uses do not have conflicts with the goals, policies and future plans of the community (Gray & Gray 2007, p. 328). Severance of land is also necessary because a lot of considerations will be given to the effects of the way the land is divided on various sites, neighborhoods and communities as a whole (Wickeri & Kalhan 2009, p. 40). Once a land severance has been approved, the new parcels of land are now ready to be sold and resold without the need for further approval (Women’s Land Link Africa 2010, p. 8). This can only be exempted if the authority that has granted the severance has stated that the selling and reselling of land should not occur without further approval (Agarwal 2005, p. 827). The statement in question in this essay simply means that the severance by notice in writing is usually the most effective method of severance (Agarwal 2005, p. 827). This comes about from the fact that there is a lot evidence or proof that can be produced in future in case there is any problem with the severance. The other two methods of severance, that is, severance by mutual agreement and severance by course of dealing are very problematic because of their non-evidential nature (Women’s Land Link Africa 2010, p. 8). The agreements simply rely on word of mouth and there is no way that each party can guarantee to keep their side of the deal. The notice in writing can be used later or produced as proof or evidence for actual severing of the land. This is not possible in severance by mutual agreement or severance by course of dealing (Wickeri & Kalhan 2009, p. 104). As compared to severance by course of dealing and severance by mutual agreement, severance by notice in writing makes the whole process of severing much simpler. This is because notices in writing usually make the route to severance very easy (Dixon 2002, p. 18). The severance by mutual agreement is usually problematic because it does not have tangible evidence. People usually agree orally and cannot have evidence of their agreement in case there is any problem along the way. The severance by course of dealing is also more or less the same as the severance by mutual agreement (Hayton 1976, p. 85). The severance by mutual agreement and severance by course of dealing are usually very problematic because they do not have evidence and many parties can change their minds as there is no evidence of severance (Women’s Land Link Africa 2010, p. 8). This is unlike the severance by notice in writing which is considered to be very effective and reliable since evidence can be produced (Gray & Gray 2007, p. 328). The law on severance should be reformed. The various methods of severance that are found to be ineffective and problematic such as the severance by mutual agreement of the severance by course of dealing should not be accepted as methods of severance (Gray & Gray 2007, p. 500). This is because they present a lot of problems as a result of lack of evidence or proof. The law on severance should be amended because the issue of subdividing land is not an issue that should be taken lightly (Wickeri & Kalhan 2009, p. 132). This is because of the adverse effects that improper subdivision of land can have on the various communities and societies in general. The laws on severance should also be reformed so that land can be subdivided in an orderly and organized manner. The subdivision of land should be done in such a manner that it does not have a lot of negative effects. This can be realized through reforming of the laws on severance (Women’s Land Link Africa 2010, p. 3). As seen in this essay, legal written notices are an effective way of justifying one’s actions because evidence or proof can be provided (Women’s Land Link Africa 2010, p. 3). That is what makes the severance by notice in writing one of the most effective methods of severance (Wickeri & Kalhan 2009, p. 104). Severance by notice in writing is considered to be the most convenient and practical form of severance. The fact that there is the provision of evidence can be attributed to this effectiveness. Severance by notice in writing is usually provided by statute (Women’s Land Link Africa 2010, p. 1). This means that is provided in the law and recognized as legal. severance usually applies to joint tenancy. Therefore, a joint tenancy may sever when the other joint tenants are given a notice in writing by a one tenant of his or her desire to sever the joint tenancy (Wickeri & Kalhan 2009, p. 18). severance has been described as the act of dividing land without necessarily using a plan of subdivision (Hayton 1976, p. 85). It is also the act of severing a piece of land from a large tract or piece of land. In many jurisdictions across the world, the use of land requires that severances of that land to be done in a very orderly and organized fashion (Women’s Land Link Africa 2010, p. 5). This orderly and organized fashion is usually by way of having plans of subdivision. This is very effective when multiple lots of land are being created. The process of subdividing land can sometimes be very lengthy and complicated. Conclusion In conclusion, the notice in writing provides an easy route to severance. This is because notice in writing provides room for evidence or proof that severance was actually done. This is because written notices can be retained by the person issuing the message to communicate the legal notice of severance. The notice in writing can be used later or produced as proof or evidence for actual severing of the land. This is not possible in severance by mutual agreement or severance by course of dealing. As compared to severance by course of dealing and severance by mutual agreement, severance by notice in writing makes the whole process of severing much simpler. This is because notices in writing usually make the route to severance very easy (Dixon 2002, p. 18). The severance by mutual agreement is usually problematic because it does not have tangible evidence. People usually agree orally and cannot have evidence of their agreement in case there is any problem along the way. The severance by course of dealing is also more or less the same as the severance by mutual agreement. The severance by mutual agreement and severance by course of dealing are usually very problematic because they do not have evidence and many parties can change their minds as there is no evidence of severance. This is unlike the severance by notice in writing which is considered to be very effective and reliable since evidence can be produced. References Agarwal, B 2005, ‘Marital Violence, Human Development, and Women’s Property Status in India’, World Development, pp. 823-850. Dixon, M 2002, Principles of land law, 4th edn., Cavendish Publishing, London. Gray, KJ & Gray, SF 2007, Land law, 5th edn., Oxford University Press, Oxford. Hayton, D 1976, ‘Joint Tenancies: Severance’ The Cambridge Law Journal, vol. 35, no. 1, pp. 20-25.   Wickeri, E & Kalhan, A 2009, Lands Rights Issues in International Human Rights Laws, Institute of Human Rights and Business, New York. Women’s Land Link Africa 2010, ‘The Impact of National Land Policy and Land Reform on Women in Uganda’, Women’s Land Link Africa, pp. 1-8. Read More