Land Law: Objects Found on Land

• Objects found on land include anything attached to the land and items on, in, or under it.
• A legal question arises regarding whether found items are part of the land, determining ownership

Ownership

• The true owner has the best claim to found property when possible.
• Landowners have rights to items found below the surface.
• Finding laws are restricted by Treasure Trove and Natural Resources regulations.

Treasure Trove

• Treasure Trove encompasses hidden money, coins, gold, silver, plate, or bullion where the owner is unknown.
• In Webb v Ireland (SC), the State successfully claimed a valuable chalice discovered with a metal detector on church land.
• Article 5 & 10 of the 1937 Constitution establishes state claim to ownership of national antiques ,not just gold and silver.
• Finders may have a claim for reward based on legitimate expectation rather than property ownership
• Per Art 10 of the Constitution, natural resources belong to the State.

Objects Under the Surface

• Elwes v Brigg established that items under the surface not legally belonging to the State or considered treasure trove belong to the freehold owner.
• Waverly Borough Council v Fletcher concerned a brooch found 9 inches deep by metal detector.
• The Council owned the object, having better title than the finder, because it was found deep in the ground.
• Landowners will generally have better title than a finder for items found below or in the land.

Objects Above the Surface

• Things found above the surface are less likely to give the landowner a better claim, established in Armory v Delamiri.
• Parker v British Airways set out the Control Test, concerning a gold bracelet found in a BA lounge
• The finder generally retains ownership except against the true owner.
• Displaying intention to control the premises gives landowners advantage over the finder’.
• Less effort to satisfy the Control Test is needed for private spaces versus public lands.
• Finders are not granted absolute title to ensure incentivization

Finder's Title

• Tamworth Industries Ltd established and exception to finders rights
• Exceptions are if the original owner’s title has been abandoned, giving the finder better title, as in Tamworth Industries Ltd.

Control Test

• The standard for the Control Test was illustrated in Chairman, NCA v Flack
• The Control Test states that the occupier's intention to control the space is required
• In Hannah v Peele, a soldier who found a brooch had a better claim than the landowner because the landowner had not physically occupied the house.

Items Attached to Land

• A test exists to determine if an object is attached, per Leigh v Taylor regarding tapestries
• Tapestries not intended as permanent fixtures and easily removable were not considered part of the property.
• Hulme v Bingham ruled printer machines easily removed without damage were not attached to the land.
• Items affixed to land are considered property of the landowner.

Trespassers

• Parker states trespassers or those acting dishonestly will not be rewarded.
• Donaldson LJ holds wrongdoers are not entitled to benefit from their wrongdoing.
• Webb (SC) links to degree of trespass vs reward
• Acting responsibly as a finder will improve claim to the found object, as in Webb.

Co-ownership

• Co-ownership involves concurrent property ownership by two or more persons.
• Forms of co ownership include Joint Tenancy or Tenancy in Common
• A Joint Tenancy includes the right of survivorship.

Joint Tenancy : Four Unities

• The 4 unities of a JT are; possession, interest, time and title.
• Possession is shared among all co-owners.
• Interest requires all JTs to have the same interest in the land.
• Title dictates JTs must acquire interest via the same document or act.
• Time requires interests to vest simultaneously.

Tenants in Common

• Tenants in Common only requires unity of possession
• Co-owners in TIC have distinct, yet undivided, shares with no physical division of property.

Creation of Joint Tenancy vs Tenancy in Common

• Common law distinguishes JT and TIC on 4 unities
• Common Law states lack of four unities indicates Tenancy in Common
• Express declaration of JT or TIC is conclusive.
• Words of severance implying separate shares can signify a TIC.
• Absence of express terms implies a JT to ensure title marketability and diminish co-owners.

Equity and Tenancy in Common

• Equity favors Tenancy in Common
• It can intervene to find a TIC even though the legal arrangement is a Joint Tenancy, without affecting the legal ownership.
• Unequal contributions to purchase price can create a Tenancy in Common in equity, O'Connell v Harrison.
• Property from joint business ventures is presumed to be held as Tenancy in Common.
• Lenders take security as Tenants in Common due to security reasons
• A Joint-Mortgage suggests a Tenancy In Common to maintain proportionate security.

Severance

• Conversion of Joint Tenancy to Tenancy in Common is called severance.
• There is severance in equity and severance in law.
• S30 LCLRA stipulates a Joint Tenancy cannot be severed without prior consent of other JTs in law or equity.
• S31 allows court orders to dispense with consent if unreasonably withheld.

Severance in Law

• Acquisition of another interest by one JT merges with other interests, destroying unity of interest, leading to TIC.
• Alienation by one JT to a third party severs the JT, creating a Tenancy in Common.
• Commorientes involves a situation where all joint tenants killed in a 'common disaster’
• Mee established if determining order of death is impossible for survivorship, common law presumes heirs succeed as JTs.
• S5 Succession Act 1965 preserves common law rule for simultaneous deaths.
• S67 Civil Law (Miscellaneous Provisions) Act 2008: JTs who die simultaneously are deemed to have held the property as TICs in equal shares.

Severance in Equity

• Mutual agreement can sever a joint tenancy if parties display mutual intention to sever it.
• Burgess v Rawnsley clarifies a clear mutual agreement to sever converts it to TIC.
• A mutual agreement result was that the holder held a legal interest as JT, but the equitable interest was as Tenant in Common.

Acting on Own Share

• Attempting to sell one JT share requires prior written consent per S30 LCLRA, as per Tempany v Hynes.

Course of Dealing

• Re Wallis Trusts outlines conduct of all parties as exempt from prior written consent if it happened now

Homicide

• S120 Succession Act prevents unlawful killers from inheriting share, silent on one JT killing another
• Cawley v Lillis convicted of manslaughter, prevented from inheriting in common law while in equity he is a constructor in trust for half the proceeds
• John Mee said that Cawley can uphold to protect his public policy

End of Co-Ownership

• Union in one of the co-owners: Buyout of shares by one co-owner
• Union in a purchaser: outsiders purchase all shares
• Sale and Partition: physical division of property

Restrictions to Partition

• Pre LCLRA the court orders sale and partition as long as its more beneficial the party
• Post: Irwin v Deasy SC confirmed judgement on the registered land was on a partition due to the person holding it
• Present: S31 LCLRA any person can make an order to a S31(3)

Rights of Co-owners

• Right of possession : right to alienate
• Jones v Jones: right to aliensate rights are due to prior

Mortgages Exam tip

• Pay attention to dates of mortgages are created
• Govern by LCLRA 2009 for unregistered same

Unregistered Land

• Legal mortgages before LCLRA conveyance of the fee simple
• LCLRA S89 (1) only way of mortgage is by a deed

Equitable mortgages by creation

• After deposition of title deeds: deposition of title deed important to advance the money
• Legal Mortgage by satisfied state of Frauds
• Tranfer trust that needs to get a trustee

Registered Land PRE LCLRA

• Mortgage can registered land by title, and it’s a debt and it must be registered

Legal Mortgages POST LCLRA

• S62 (2) can charge provided in 01/29

Positions of the parties under the enforcement of security

• Apply to the morges to the 01/12/09, only apply the existing mortgage

PRE-LCLRA Possession

• The START of mortgage Problem
• PreLCLRA legal mortgage are governed by Section S62 (7)
• LCLR 2013, resotre 2009 does not already get starting one

Unregistered Land Mortagages

• the normally contract must to be in default , other wise it is the title too
• Irish Life

Power of Land S1881

• written notice of arrears and 3 months default
• N:B that after power become are liable damage, have to be execrisble.
• mortgagee apply for courty apply
• S19 court receivers are deemed agent of mortagtor

Post - LCLRA Mortgages

• Protechting mortgage security to do this
• $97 LCLRA, can only do all it in writing is a Mortgagee.
• $101 provides protection as long is willing to have Mortgagee to to provide good things and pay to stay in 7 days

Mortgagor

• has right in LCLRA, equity does protect it, to impede is no right
• is will not a will for a while
• excessive rates and unconscionable
• collateral unequal side

Consumer Protection ( Consumer Credit 1995 and Protection Code 2012

• it’s for to ensure in transparent mortgages

The Succession Law 1965(Succession Act 1965)

• must had animus testandi
• Compliance by $77 and $78 is a max
• Capacty test it to make your mind, and not medical test -Always assume making well and no duress and it’s a a legal test not medical
• Goodfellow it by know they make the will and knows if any problems that are delusions
• $78 :Formalies all in what way? writing with signature at foot for testostor
• Need not make a signature and it be legible for a B. Kiernan.

TWO WITNESSES

• two witnesses all can not be blind • Must be together same as signature

• $81 do NOT benefits of the same, and Re Brava there if it does invalid • A Residence Clause in what make will for test if it has, because it it good practice

After Amendment

• Under what clause it will be valid • Subsequent needs to had $86 if no signed

Revaction Wills.

• May change time and death per will • Marriage and it won’t effect because change will for the party

• Destruction S101

-NEW and old, all can be revoked by wills or codidial.

•Disclaimer per gifts . Lapse to go by it $97 and $94

Rules to Construction

• Generally four Corners with read all.

Extrinsic evidence • $18 can be run provided you • is where testory is Testamentary freedom and to dispose at best. • the rights

• S56 maybe compell • it’s for the will with have and you know it •$117 (1) a child make and to to follow

More than just to make to have provision well and all. .

• Mpv md Carrol J to have for advance live.

Adverse and by it what. • land it is is • is no • it has is to to what what and and and has has