The Course of GDL Program - Essay Example

of GDL Programme (Land law)" The issues that arise in the question are the possible interests that exist in cherry tree farm. The set of lawsthat rules that govern the area of land law can be categorized into two heads, the first being through the Land Registration Act (LRA) 1925 which will be repealed and replaced by the Land Registration Act (LRA) 2002, the other by Law of Property Act 1925 and the Land Charges Act 1972. The first thing that has to be stated is that from the facts it can be clearly seen from the facts that land Simon was a registered proprietor, thus only concepts of registered land will be considered. The most evident problem that can be seen from the facts is that Brain did not employ a solicitor, thus the formalities have not been promptly followed. The first requirement that is presumed not to be followed is of s.2 Law of Property (Miscellaneous Provisions) Act 1989, which states that a contract for disposition of land must be in writing and should be signed by each party to the contract. However from the fact it is seen that there has been conveyancing of property, thus it can be said that the registration of Brain as the new owner has taken place. In registered land, the key rights interest and title are illustrated by the register which consists of three parts, that is the property register, the proprietorship register and the charges register. The property register demonstrates the type of estate held by the owner and further gives facts of the property. The proprietorship register on the other hand gives the name of the registered proprietor and goes on to state any restrictions or limitations which have been placed on the proprietor to deal with the land. Finally, the charges register lays down third party rights which exist on the estate. Under the LRA 1925 the encumbrances that exist are classified into two categories, that is overriding interests, which bind the purchaser even if not mentioned on the register, and minor interests, which will be void against the purchaser unless the interests are protected through an entry on the register. The overriding interest that can be relied upon by Wanda is s.70 (1) (g) LRA 1925. Under the LRA 2002 it has been stated that a person's right of actual occupation will be construed as an overriding interest under the LRA 2002. This section consists of, 'The rights of every person in actual occupation of the land or in receipt of the rent and profits thereof, save where enquiry is made of such person and the rights are not disclosed'. It has been said that a person who does not have any legal or equitable right in land can get no benefit from s.70 (1) (g), nor can a person who not in actual occupation. (Strand Securities Ltd v. Caswell1). In Williams & Glynn's Bank Ltd v. Boland2 it was stated that 'it is the fact of occupation that matters' and 'physical presence on the land and not some entitlement in the law' is required. Further it has been stated that the purchaser will be bound by all the overriding interests that exist at the time of the date of registration. (Abbey National Building Society v. Cann)3 The courts have dealt with the issue of what happens if an occupier of the lan is absent for a temporary period in Chhokar v. Chhokar4, where a husband in order to divest his wife from claiming an equitable interest in the matrimonial home, carried on and completed a sale of property to his collaborator, while his wife was in the hospital. He then escaped with what he got from the proceeds. Finally when the wife returned she was refused her interest because of not being physically present on the land, at the time of registration. The Court of Appeal took into account of the fact that her furniture had been there at the house, thus it was held that she was in occupation and so the purchaser was bound by the overriding interest. This case would seem to have settled the issue, however there is a problem which has been said to be in existence, that is the courts did not make any reference whatsoever, of the LRA 1925, thus it can be seen from the wordings used that the entirety of the transaction had taken place in an unregistered system. However, it may be helpful to note that the courts under other statutory provisions which require occupation have taken into account the intention of a return, and have considered the belongings left behind, the Court of Appeal in Hoggett v. Hoggett5 that 'Going to the hospital for a few days could not be regarded as going out of occupation, any more than if the [occupier] had gone on a weekend visit to a friend, or, indeed, gone out shopping for a few hours'. Thus it can be said that if there is a temporary absence then belongings strand Securities left behind by the occupier may help in establishing actual occupation. However, as provided by Strand Securities Ltd. V. Caswell6 there should be found an intention to return and previous occupation. Further a modern approach in Williams & Glynn's Bank v. Boland7 was adopted where a wife who had contributed to the purchase price and so acquired an interest in the land, of which her husband was the sole registered proprietor. Mr. Boland mortgaged, the property but was unable to pay the bank the mortgage payments, thus the bank sought possession of the premises. Mrs. Boland argued that she had rights in the property and had been in occupation at the time of mortgage. The House of Lords distinguishing the husband's interest from that of the wife upheld the wife's claim and gave her an overriding interest which was binding on the bank. From the facts of the question, it is unclear whether Wanda had left her belongings on the property, however it can be safely said that she would have left her belongings there and so there is a strong possibility of Wanda claiming an overriding interest, as done so in Chhokar8 and by arguing further that she has paid the deposit, quite similar to Boland9. Thus it can be said that Brain would be bound by the overriding interest. Overriding interests have been kept in the LRA 2002, for a period of ten years and the reason has been said to be Human Rights Act 1998. By looking at the facts, it can be said that the exclusive occupation that has been granted to Tom, can be argued under s.70 (1) (k),which covers only legal leases, that a lease which is less than 21 years is said to be an overriding interest because of his actual occupation. The section states that 'Leases granted for a term not exceeding 21 years', thus if a lease is not legal and is not a subject of a grant, then it will not be covered. (City Permanent Building Society v. Miller10) By the facts it is not clear as to whether the lease is legal, so it is possible to construe the interest as equitable. The interest is not reckoned as a minor interest. Thus the interest of Tom's interest would be overreached. The only possibility for his interest to have survived would have been through his interest being legal. The interest granted to Nora, can be of an easement. The LPA 1925 provides that an easement for life can not be considered to be a legal interest, even if created by the use of a deed, and so as stated by s.1(3) such an easement will take effect as an equitable interest. A right of way has been said to be an easement. An easement is recognized through the test provided by Re Ellenborough Park11 which says that there must be a dominant and servient tenement, who must be different persons; the easement must benefit the dominant tenement and the right which is claimed must 'lie in grant'. The first point states that there must be two identifiable pieces of land, one of which is the dominant and the other which is the servient. These must be owned by different persons. Further the easement must benefit the dominant tenement. Finally the right must be capable of being granted through a deed if it is to be construed as an easement. Right of way has generally been recognized as an easement (Borman v. Griffith12) Currently, an easement is construed to be an overriding interest under s.70 (1) (a) LRA 1925 and will be binding on a purchaser. However an equitable easement will generally be treated as a minor interest and so should be protected through the use of caution or notice on the register. However the courts have upheld generally acceptable equitable easements in Celsteel Ltd v. Alton House Holdings Ltd.13 However it is highly improbable that the easement granted would come under the head of Celsteel. Further it can not be decisively stated that the minor interest has been protected, thus it would be overreached. By looking at the facts of the question it can clearly be stated that Jerry has been granted a lease. Under the new provisions of LRA 2002 it has been clearly stated that any lease which exceeds a period of seven years is to be registered and noted against the landlord's title.(S.27 (2) (b) (i)). In this situation it is unclear whether this formality has been, followed. However since there has been a written deed it can be assumed that there has been compliance with such a requirement. If not, then an equitable interest would be said to exist, which would be an overriding interest because of actual occupation and so will be binding on the purchaser. Further it has been stated that if an option to purchase has been given to a person to whom a leasehold has been given, it binds the purchaser and he has to take into account of the option. This is only accrued when there is an existence of a legal lease. If it is found that Jerry has a legal lease then it would be binding on Brain. As a Consequence of Williams14, it appeared that a purchaser would be bound by existing rights of those who occupied the premises and were in actual occupation, which included any relatives. It was thought that children were included in this category of s.70 (1) (g). However in Hypo Mortgage Services Ltd v. Robinson15 it was found that children could not be found to be in actual occupation for the purpose of s.70 (1) (g). This included children of tender years and so it was explained that children 'had no right of occupation of their own; they were only there as shadows of occupation of their parent'. From this it can be presumed that Dana, would not acquire an overriding interest in the property. The best possible alternative would have been, if she had registered herself under the category of minor interests. Finally, if Simon gave Brian the farm as a present, he would have been bound by the interests of the entire persons illustrated above. This has been the general approach that has been followed by the courts which has distinguished between a purchaser and a gift. It can therefore be stated that Brain can recover the losses from Simon that he has suffered as a result of the interests being found on the property. However the negligence of not hiring a solicitor will go against him and his interest in land. BIBLIOGRAPHY: GRAY, K. J., GRAY, S. F., & GRAY, K. J. (2006). Land law. Butterworths core text series. Oxford, Oxford University Press. BURN, E. H., & MAUDSLEY, R. H. (1986). Maudsley and Burn's land law: cases and materials. London, Butterworths. DIXON, M. (2004). Dixon on land law. London, Cavendish. MACKENZIE, J.-A., MACKENZIE, J.-A., & PHILLIPS, M. (2004). Textbook on land law. Oxford, Oxford University Press. SMITH, R. J. (2003). Property law. Longman law series. Harlow, England, Longman. GRAVELLS, N. P. (2004). Land law: text and materials. London, Sweet & Maxwell. SPARKES, P. (2003). A new land law. Oxford, Hart Read More