Characteristics of a Legal Lease - Coursework Example

Land Law Assignment 1. Leslie Browne is the owner of 134 Wilmot Road as per the agreement on 28th June 1994. Leslie Browne has the following rights over the parcel of land: Browne has rights to use the products that are included in the land, herein referred to as fructus naturales such as grass and soil. Browne has limited rights when it comes to production of annual crops that require modification of the land, herein referred to as fructus industriales (Fisher & Martin, 1994). With regard to airspace, Browne’s rights extent only to a height that is of acceptable use. Hence, he cannot stop other users from taking aerial photographs over the land. Browne’s rights are also limited with respect to aircraft approved under the civil aviation act using the airspace above the land (Fisher & Martin, 1994). Brown has limited rights when it comes to use of minerals below the subsoil of the 134 Wilmot Road parcel of land. The mines department reserves the right to utilize minerals such as gold or diamond found to be of more significant value vis-à-vis the surface and subsurface value of the parcel of land known as 134 Wilmot Road (Fisher & Martin, 1994). 2. Yes. There is a possibility that Halifax Building Society be a registered owner of an estate in 134 Wilmot Road since on 28 June 1994 the company was put in charge of securing money and any other advances mentioned in the charges register. In addition, the contact details of Halifax Building Society are clearly stated in the register. 3. Characteristics of a legal lease A legal lease is a an accord in which a landlord agrees to confer exclusive rights to occupy real property based on specific terms, and in return, the tenant consents to give the landlord some form of consideration. The lease transfers real property including interest to a tenant but remains irrevocable and transferable (Patton, 2005). Its characteristics are described as detailed below. It creates an estate in land The extent any party’s interest in a given parcel of land is established by the duration over which tenure is granted to them. This leads to creation of an “estate” in the land therein described (Patton, 2005). It has a fixed duration From the description above, a lease agreement is an estate created in land having a definite and fixed duration. Although its is common for a lease agreement to last for several years, it is now evident in current application of law that the agreement may be for a shorter period such as a week, month or even a single day (Patton, 2005). The most important feature regardless of the duration is that the lease is definite and is accorded for a determinable period (Galaty, Allaway & Kyle, 2002). Therefore, any grant of an interest in a given piece of land which does not meet the aforementioned criterion does not actually create a lease. Relative to this, the suit of Lace vs. Chantler (1944) in which it was stated the lease would last “for the period of the war” was considered void (Patton, 2005). A common provision included in a lease agreement is a proviso for re-entry by the landlord as well as forfeiture of the agreement if the tenant fails to honor his or her commitments relating to the land (Galaty, Allaway & Kyle, 2002). Exclusive custody of Land The lease agreement gives an estate in land to a tenant and entitles the tenant exclusive rights such that he or she may exclude the landlord or any other party from the land. For this reason, a landowner anticipating entry into the property for purposes such as doing repair must reserve the right of entry into the property in the lease agreement (Galaty, Allaway & Kyle, 2002). Along this line, a grant that does not include exclusive possession rights does not lead to the creation of a leasehold estate. In Clore v. Theatrical Properties Ltd. (1936), the right to sell snacks in a cinema in which the grantee did not have exclusive possession was considered a mere license (Galaty, Allaway & Kyle, 2002). Rent Rent is a deliberation for the possession of land as enjoyed by the tenant; hence, it is a fundamental characteristic of a lease. Rent makes a lease a commercial agreement. As well, a landlord and tenant may enter a gratuitous lease. In a court appeal involving Ashburn Anstalt v. W.J. Arnold & Co. (1987), occupation of property without rent was still considered a lease (Sealy & Worthington, 2007). Reversion Expectant on the tenure Since a lese is definite and has a limited duration, reversionary interest must be expected once it is determined. Most leases involve freehold estates, but this is not necessarily the usual case (Sealy & Worthington, 2007). Documentation required in creating a lease The following are the basic documentation required in order to carry out a lease. More documentation may however be needed depending on the nature of the lease agreement. 1. A Copy of Certificate of Occupancy registers in the name and particular of the person executing the lease, in this case Leslie Browne. 2. A certified copy of Pollution Consent having the correct particulars of the land owner 3. A Standard Form Lease Agreement 4. A regents as tenant and regents as landlord form 5. A certified copy of an S.S.I. Listing Certificate (from Sealy & Worthington, 2007 and Scher, & Scher, 2000). 4. Registration of the lease According to English law, a lease granted to any party has to be registered if the lease period exceeds seven years. In such cases, the lease has to be registered at the land Registry. The lease of 134 Wilmot Road granted by Leslie Brown to Frank Green is of a period of five years. This is less than the mandatory time limit for registration; therefore the aforementioned lease agreement does not need to be registered at the Land Registry. Significance of entries in the charges register The charge resister has the following particulars, whose significance is described under each subheading. 1. Details of chargee or chargees These include the persons participating in the lease accord. Particulars such as name, area of residence and contact details are taken so that the chargee or chargees can be contacted at later dates in case their services are sought (Sealy & Worthington, 2007). 2. Details of charge The particulars of charge include the detail or description of the property as well as the parties involved in signing the lease agreement. Of particular importance is the date of signing the agreement and the parties involved in the signing process, the names of the parties must be clearly indicated and their signatures should appear below the names. The deal between Leslie Brown and Frank Green is a lease grant of 134 Wilmot Road for a period of five years (Sealy & Worthington, 2007). 3. Details of land affected The charges resister contains the particulars of the land subject to a lease agreement. The details must include a clear and detailed description of the land including its location in terms of county and district. In order to make the description more succinct the road or roads adjacent to the piece of land are mentioned. For instance, the land leased by Leslie Brown to Frank Green is 134 Wilmot Road (Sealy & Worthington, 2007). 4. Details of owner The particulars of the landowner are clearly stated in the charges resister. The forenames are clearly indicated followed by the surname. This is important for the purpose of keeping records both by the grantee and concerned authorities such as the local county. In addition, the owner must reveal his or her title as well as profession and indicate an active contact address (Sealy & Worthington, 2007). 5. Settling fence disputes First viewpoint Gina White claims that the boundary between her land and the land leased by Leslie Browne to Frank Green is not in the correct position. She claims that the fence has taken a one-meter strip of her land. The one-meter strip may look in significant but Gina has a right to claim it anyway because she opines that as a consequence of the loss she is unable to obtain permission to extend her house. However, when Leslie Browne moved into the property in June 1994, the fence was already in place and it looked like it had been erected five years earlier. It is therefore not easy to establish the correct position of the fence. Since at the moment it is difficult to prove who rightfully owns the disputed one meter strip of land, the best move that Gina White, Frank Wood and Leslie Browne should take is to check the respective land title deeds. Frank Wood would ordinarily be exempted from this matter because the piece of land is owned by Leslie Browne, but according to lease agreements, the grantee has exclusive rights to the land. By checking the land title deeds, the parties will be able to realize the scale plans showing the correct boundaries of the land (Sealy & Worthington, 2007; Scher, & Scher, 2000). It is also important that Gina White and Leslie Browne ask their respective solicitors or conveyancers for copies of the land plan as registered at the Land Registry. The plan could fundamentally be on a proportion of 1 to 1250 hence not very clear to show accuracies of one meter. Nevertheless, the plan would be very instrumental in resolving the land dispute. Gina White and Leslie Browne should also check at the Land Registry for a plan of land transfer that shows the particulars of the land when it was sold for the first time. This would show the clear boundary between the two adjoining parcels of land (Scher, & Scher, 2000). What Gina White wants to claim can basically be classified under boundary line adjustment. According to Chapter 58.17 RCW of the Washington State Law, a boundary line adjustment is an adjustment on land that does not form an additional parcel, lot, tract, division or site or does not create a tract, lot, site, parcel or division that contains an area whose dimensions do not meet the minimum requirements to be suitable as a building site. A boundary line adjustment also implies that the adjustment on one parcel of land does not affect or diminish the adjoining parcel or parcels of land (U.S. Department of State Foreign Affairs). There is no obligation for a land owner to erect fences over their parcels of land, but since a fence already exists between two plots owned by Gina white and Leslie Browne, the parties need to check the covenants in their land title deeds suggesting why the fence exists in the current position. This is because none of the parties was actually involved in erecting the originals fence, as when Leslie Browne acquired the land, the fence was already in position. Therefore, only past records, rather than current opinions and thoughts would bring a solution to determination of the real boundary between Gina White’s and Leslie Browne’s parcels of land (Sealy & Worthington, 2007; Scher, & Scher, 2000; U.S. Department of State Foreign Affairs). Second viewpoint From another perspective, when Leslie Browne entered the property the fence was not in good position as the posts had come out and the boundary region had been overgrown. Hence, he replaced the fence by guessing what would have been the original boundary between the two parcels of land. According to land law, Leslie Browne erred by repairing the old fence he found lying around without consulting the adjoining owner. Under the Fencing Act 1978, parties involved in erecting or upgrading a fence must consult each other and in fact have to share in half the expenses involved in putting up the fence. Thus, under normal conditions, Leslie Browne should not have put up the fence alone but should have consulted the neighbor on the adjacent property to participate and share in the expenses (Sealy & Worthington, 2007; Scher, & Scher, 2000). The law stipulates that any party who wants to put up a fence should first consult the adjoining neighbor and where possible agree on the terms of putting up the fence including sharing the costs involved. This requires the two neighbors meet face to face and discuss the matter (Scher, & Scher, 2000). The party intending to put up the fence must make a realistic proposal. This is because the decision to put up a fence is not a final matter as suggested by one party. Some neighbors are not likely to agree particularly with regard to sharing costs. And in fact, some fence disputes are likely to get out of hand and need to be solved by courts depending on the proposals put forward (Scher, & Scher, 2000). Disputes involving fence lines may include the location of the fence as is the case between Gina White and Leslie Browne. Such a dispute requires that both parties appoint an arbitrator individually or have one arbitrator to asses the situation (Fisher & Martin, 1994). The arbitrator or arbitrators will settle the matter by hearing both sides of the case, or if an agreement cannot be reached, the matter will have to be heard by an umpire. Gina White and Leslie Browne need to appoint a witness to sit at the hearing and give a notice of the hearing. A tricky side of the matter is that the settlement of the dispute can be taken to be binding only if the said fence is still in existence. In the present case, the fence that is in existence was erected by Leslie Brown alone without a witness, since the former neighbor never came to see the upgrading of the fence although she was pleased that the fence was repaired. Gina White is actually a new owner of 136 Wilmot Road since Leslie Browne’s former neighbor, Mrs. Black, no longer lives in the said parcel of land. The matter would have been amicably solved had Mrs. Black and the original owner of 134 Wilmot Road been involved. But since land agreements do not extend to new owners, the best way to resolve the dispute is to check the land registration title deeds since as it comes out, Leslie Browne has a right to seek for compensation for the expenses incurred in erecting the fence- and the person to be held responsible is Mrs. Black. On the other hand, Leslie Browne should be responsible for any errors in demarcation of the land since neither Mrs. Black nor Gina White were under obligation to erect a fence as a demarcation for 136 Wilmot Road. Further, Leslie Browne never consulted a second party before erecting the fence. Bibliography Fisher, J. D. & Martin, R. S. (1994). Investment analysis for appraisers. New York: Dearborn Real Estate. Galaty, F. W., Allaway, W. J. & Kyle R.C. (2002). Modern real estate practice. New York: Dearborn Real Estate. Patton, W. (2005). Investing in real estate with lease options and "subject-to" deals: powerful strategies for getting more when you sell, and paying less when you buy. New York: John Wiley and Sons Scher, L. & Scher, C. (2000). Finding and buying your place in the country. London: Kaplan Publishing. Sealy, L. & Worthington, S. (2007). Cases and materials in company law. Oxford: Oxford University Press Topham, A. F. & Fausset, F. P. (1908). Real property: An introductory explanation of the law relating to land. New York: Butterworth & Co. U.S. Department of State Foreign Affairs.15 FAM 350 Required Lease Documentation U.S. Department of State Foreign Affairs Manual Volume 15—Overseas Buildings Operations. Retrieved 6 August 2009, from http://www.state.gov/documents/organization/88923.pdf Read More