Property Law in the System of Civil Law - Essay Example

REAL PROPERTY LAW Name Institution Course Professor Date REAL PROPERTY LAW Introduction Property law is the branch of law concerned with the administration the diverse types of tenure and occupancy in real property as distinct from private or movable possessions within the common law framework. In the system of civil law, there is a division between movable and fixed or immovable property. Movable property is generally linked to personal property, whereas permanent property is majorly associated with real estate commonly referred to as land, and the corresponding rights and responsibilities thereon1. The concept, of property brings about all the law property. In a number of jurisdictions traditionally land fell under the ownership of the emperor or the monarch and it was transferred through the feudal systems of allegiance and fealty. There are two categories of property: real property also referred to as permanent property, real estate or land and private property also referred to as personal property2. This essay explains and evaluates the concepts of property law, ownership, doctrine of estates and the injustices associated with co-ownership of land with regard to the rule in the case of Corrin v Patton. . The rule in Corrin v Patton The facts Mr. Ronald John Patton who is Respondent and his wife Mrs. Patton were in a joint tenancy under Act 1900 (NSW). Mrs. Patton did not intend to transfer the interest to her husband after her death; she therefore initiated a transfer of her interest in the land five days prior to her demise her brother Corin who is the appellant in this case. She also executed a trust deed. Under which, the Mr. Corrin was to hold the estate on trust for Mrs. Patton, or as she wished, in line with an order of the court. The transfer and deed were given to Mrs. Patton’s trustee, Mr. Smallgood. To make the transfer official, Mrs. Patton had to obtain a duplicate copy of the certificate of ownership from the NSW Bank. She made no effort to do so before her death. The issue The court was mainly concerned with the circumstances of ownership intended to be given at the time of Mrs. Patton's demise. More accurately, if Mrs. Patton had emerged successful in alienating her proportion of the joint tenancy, severance had been effected and Mr. Patton would no longer enjoy his privilege of survivorship. The court eventually concluded, although for differing reasons, that as, at the time of Mrs. Patton's death, the transfer had not been legally registered and, without the certificate of title, was not then able to be registered, there had been no divesting by Mrs. Patton of her interest as a joint tenant. As a result, her interest survived to Mr. Patton who obtained, by right of accumulation, her entire interest. Decision It was held that a simple declaration of intent, even where conversed to the other joint tenant, is not enough to achieve a one-sided dissolution of the joint tenancy. Further, the court in reflecting on the gift principle, as put forward by Turner L.J. in Milroy v O R D, decided that a donor with intention, must do all that is essential in order to make effective the transfer of the lawful title. The gift is not absolute in justice, however, until the donee is prepared with the way of achieving the transmitting. Legal issues According to Mason CJ and McHugh J, a joint tenancy can be dissolved in one of three ways: joint agreement between the tenants; a complete disposition of a joint tenant’s legal or equitable interest in the property; or a process enough to illustrate that the interests of all joint tenants were jointly treated as making up a tenancy in common. In this legal proceeding, Mrs. Patton makes effort to employ the first way - disposing of her interest through making it a gift to the Mr. Corrin. For a gift to be recognized at equity, the donor with the intention has to do all that is essential to transfer the lawful title, such that the lawful transfer could be effected without any extra action on his or her part. The approach that is held in favor from those outlined in Anning v Anning is the first, flexible approach: only the donor had to have done everything necessary to complete the gift. It worth noting that while section 41of the Real Property Act 100 (NSW) explains that transfers does not convey an interest in land until registered, it does not stop the transfer an equitable estate to the donee under a complete transaction. Mrs Patton did not perform all that was essential for her to perform in order to make a transfer effective. The legal document of title remained all through with the mortgagee and Mrs. Patton did nothing to arrange for its processing for registration purposes. The simple fact that, Mrs. Patton had made clear her intent to terminate the joint tenancy; and at the same time she had acted in such a way as to effect a discontinuation of the joint tenancy, did not suffice to dissolve her joint tenancy. Similarly, in Brunker v Perpetual Trustee there was a transfer of estate under Torrens system. The donor did not mention a mortgage in his transfer. Upon his death, the donee’s legal personnel inserted details of the mortgage and sought to make the transfer official. The mortgagee always held the certificate of title. The court found that the changes to the transfer had not been legally consented and that the donor did not give approval for it to be handed to the donee’s solicitors. The donor had not shown any willingness to create a trust. He argued that under the Real Property Act, even without lawful or equitable estate, the transferee had a constitutional right to vest legal property in him. This judgment corresponds with that of Isaacs J’s approach in Anning v Anning Ways in which a co-owner can alienate interest in land In the law of property alienation is the ability for a portion of land or a property right to be disposed of or otherwise conveyed from one party to another. Although land is usually assumed to be alienable, its alienation may be subject to some restraints. A restraint on alienation of land is a section of the law of property used in the transfer of real property aimed at declaring illegal the act of a beneficiary disposing of or transferring his interest in the land. Probably the definitive restraint on alienation of land was a type of ownership known as fee tail which involved a condition that that land be transferred down same kin from age group to age group, which has since been brought to an end in many jurisdictions. Severance by Alienation A joint tenant is liberated at any point in time to dispose of or alienate his interest in the land, the subject of the joint tenancy, to a third party. Alienation is a way to severing the joint tenancy as it breaks the unity of ownership. Generally, severance by sale or transfer of a joint tenant’s interest to another party requires no approval of the other joint tenant(s). After conveyance, the transferee and the other joint tenant hold the same shares as tenants in common as was held in the case of Payne v Webb. . Alienation of land Alienation by Conversion Where a joint tenant desires to split a combined occupancy but keep an interest in the land and avoid the problems associated with division to third parties, those conveying have opted to take up the device of transforming the interest by alienation back to the joint tenant who will then hold his or her interest as a tenant in common. Severance will take place as long as the transfer is successful to pass an interest in the land at law as was held in cooper v chitty (1756) Lord Mansfield. This can be effected by: transfer to a third person to hold on conviction for the transferring joint tenant; or by direct transfer from the joint tenant to himself. Conveyance to a trustee Where a joint tenant has the intention to create a trust of Old System land, the interest is transferred when the title deed for the purpose of conveyance is delivered to the trustee. Nothing short of effecting and delivery of a deed of transfer will be effective in passing any concern in the land. Direct conveyance to self This system is only practicable where there is express statutory authority. At general law, a person could not convey property to himself. This is as evidenced by the rule in the case of Gamble v Hankle. Severance by Declaration of Trust A joint tenancy may be severed in equity by one joint tenant declaring himself or herself trustee of the interest for another, provided that there has been compliance with the statutory requirements in relation to declarations of trust. This can be explained by the rule in the case of Lawrence and Others v Mahfood.13 Severance by Court Order A joint tenant may make an application to a court of law for an order to sell or division the land. Where the Court approves a submission trustees are assigned and the land is vested in them. Generally the Court will only turn down an application under special conditions, such as where the claimant is under a binding contract with the other co-owners not to do anything to break the joint tenancy or not to take any action in relation to the property without consent from the other tenants or there are otherwise fiduciary commitments which the Court thinks need to be respected as in the landmark Australian case of Stone v Bowman (2000). Property interests under the Family Law Act The Family Court may issue directives aimed at severing of a mutual tenancy. The constitution empowers the family Court to make issue directives changing the interests of the parties in the land in respect of which the proceedings are forwarded. Property proceedings can only be set up under the Family Law Act, if they constitute a matrimonial cause. The meaning of marital cause has been explained to embrace property cases coming up out of the marital connection as in Brianna v Brianna (2010) Severance by Unilateral Declaration It is evidently well-known that a one-sided affirmation of plan to sever by one joint tenant is inadequate to sever the joint tenancy. In England, the general law situation has been changed by section 36 of the Law of Property Act 1925, which consents to separation of a joint tenancy in equity through written notice as in the case of Tobin v Tobin (1999). The contradictory provisions in the law of co-ownership and resultant injustices The rule in the case of other subsequent is still not clear on the issue and procedure of successfully alienating interest in land. The principles of joint tenancy at common law allow for the transfer of interest in land to a third party. Such provisions however state that upon transfer of such interest, the joint tenancy reverts back to the default form of co-ownership known as tenancy in common. It therefore implies that what actually happens is not transfer of interest but rather dissolution of the joint tenancy and formation of a tenancy in common. This is simply due to the fact that by transferring a tenant’s interest in land, the unity of time is broken. According to the doctrines of equity, in the case of Corrin v Patton, the position should have been such that, the Mrs. Corrin’s interest in the property was validly transferrable. In equity, the intention to transfer validates the act of transferring. In common law however, it is impossible. In the case of strong v bird it was held that equity cannot perfect an imperfect gift. The major contradiction is seen in the difference of opinions between Corrin v Patton where it was held that selling of the property is one way to alienate one’s interest in land and Milroy v Lord where the opinion held was contrary to this. This leaves the clarity on how a person can successfully alienate their interest in land on the balance. Further contradictions observed in the provisions of the principles and provisions of equitable estate and the words of Section 41of The Real Property Act 100 (NSW). The act provides that transfer of interest in real property and land must be registered and documented in valid legal instruments. Equity on the other hand holds that the interest in land can be transferred effectively any transaction the law deems complete. A contradiction is seen in the legal issues of this case and a good example can be reflected in the ruling held in Glegg v Bromley. From the decision made in Corrin v Patton, it is still not clear how a person can successfully alienate his or her property in land. From the case, the owner of the land makes a declaration on the intention to transfer her property. Much as the declaration is made orally, it is made in the presence of a person of majority age who according to law is a competent witness. The court however holds the idea that for transfer of property to be effected, the joint tenant must do all take all the necessary steps necessary for the alienation to take place. The injustice n corrin v Patton can be seen in the fact that the court does not take into consideration the fact that Corrin started making the transfer preparations in her days of illness and was due to die from the terminal illness. The law should therefore eliminate such injustices through the introduction of exemption clauses to such cases as that of Corrin. These contradictions are linked to the legal hitches behind understanding how a co-owner can successfully alienate his or her interest in land. This lack of clarity is the cause of all injustices in the law governing co-ownership especially the transfer of interest in land. The pitfalls associated with joint tenancy. Since the joint tenants own the entire land, joint tenancy can be very dangerous in an unstable marriage or in a sour professional relationship. The rights of either tenant are vulnerable and subject to sabotage. For instance, if a couple is experiencing serious marital problems or business partners are at loggerheads, neither party can dispose the land without the other party's approval. Supposing the asset is owned with an alienated child. Before the land can be disposed, the parents would have to get consent from the child. 3The concept of joint tenancy cannot be said to be just. It is unjust since its presumptions and principles contradict or rather are inconsistent with the laws of succession. In the case of Corrin v Patton, it is clear that going by the laws of succession, Mrs. Patton’s initial intention to transfer her property to her children was actionable but following the rules of joint tenancy, the injustice come up. If the deceased is seriously in obligation or big debts and the court that’s verifying ownership is worried that the existing partner or professional partner may liquidate the money so as to avoid bearing that debt, the financial or bank account may be frozen by a court order. Additionally, an account could be frozen if there is a disagreement over whether the existing spouse or professional associate truly added to the financial credit, or if the rights were merely for expediency4. When the living partner or business associate becomes in charge of the joint property upon the demise of the first partner, he or she may then dispose it, or hand it down it to someone else. In simple terms, the dead loses power over the eventual sale of the asset entirely. another injustice or pitfall that co-ownership, particularly joint ownership does to the tenants is that, contrary to the trustee of a trust, who bears a fiduciary responsibility to the recipients of the trust in the administration of the trust property, joint tenants are not associated with any such fiduciary responsibility to the other joint tenants. If a joint tenant loses the land following debt or other financial obligations, separation proceeding or other problems, there is no alternative for the remaining joint tenants. Moreover, if the joint tenants die in a common tragedy, the land will be subject to probate arrangements with the additional problem of determining which owner died first5. Conclusion In conclusion, from the foregoing explanation and background of property law, forms of co-ownership, concepts such as the doctrine of estates and the rule in Corrin’s case, it is quite in order to argue that the law of co-ownership creates injustices since most of its presumptions violate the provisions of the law of taxation, laws of succession and the procedure of bankruptcy. The concept of co-ownership brings about legal complications in the case of divorce proceedings and in determining which partner died first. As such alternatives to property ownership should either replace such concepts as joint tenancy should be replaced. Tenancy in common is however better and a bit more just than the concept of joint ownership since each owner may hold one half of the property fractional ownership can be launched. More to that, each partner can lawfully dispose his or her fraction without the other party's consent. 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