Case List - Land Law .pdf

LAND LAW - Case List CASE Asher v Whitlock JA Pye v Graham (2002) Buckinghamshire CC V Moran(1990) Powell v Mcfarlane (1977) Inwards v Baker (1965) AREA PRINCIPLE Adverse Possession Issue : Who gets to enjoy or inherit property on the death of the previous holder? Squatter or Heir of Owner Judgement...

LAND LAW - Case List CASE Asher v Whitlock JA Pye v Graham (2002) Buckinghamshire CC V Moran(1990) Powell v Mcfarlane (1977) Inwards v Baker (1965) AREA PRINCIPLE Adverse Possession Issue : Who gets to enjoy or inherit property on the death of the previous holder? Squatter or Heir of Owner Judgement: C as an heir of the original title delegated to Wife from Husband could’ve taken possession from D (Squatter) Adverse Possession Issue: Pye Ignored Re-licensing grahams for Land Graze (Cows) so after 12 years, The land became Grahams (Worth £10mil) Judgement: Pye's claim was defeated by adverse possession of the Grahams. The Grahams were in factual possession of the land as they were in occupation and had exclusive physical control. Pye was physically excluded from the land by the hedges and lack of a key. Principle: Factual Possession = “Possession in the ordinary sense of the word” Adverse possession Principle: Having Locks changed Amounts to Factual Possession Adverse Possession Principle: ’Intention to possess’ must be made clear to the world, amounting to an outward display of conduct Proprietary Estoppel Issue: A father encouraged his son to build a bungalow on his land which he did at his own expense and labour. After the father died, the partner he left his land to sought to remove son from Land. Judgement: Mr Baker Was entitled to remain on the property. His expenditure of money on the land’s at his father’s encouragement raised an equity which was satisfied by granting a license for life. Principle: The principles of Estoppel - 1. Representation/promise/ass urance 2.Reliance/Change of position 3. Detriment/unconscionable disadvantage Ives v High (1967) Proprietary estoppel Chaudhary v Yavuz Proprietary Estoppel Principle: “He who takes the benefit must accept the burden”- Ives Investment could not take advantage of the foundations which tresspassed on the previous owner Mr High’s Land without subject to the burden of right of way. Estoppel - An equity arising from the expense incurred in building the garage, with the Wrights' acquiescence in standing by knowing he believed he had a right of way. This equity was binding on Ives Investment as successor in title since they had express actual notice of the right of way and it would be inequitable for them to deny its existence. Issue : Mr Chaudhary (no37) built a staircase in number 35's alley to have access to his house which was allowed with no issue. After Yavuz bought 35 he tore down the staircase as Chaudhary never registered a right of way over the staircase as a charge. Chaudhary argues an easement by estoppel capable of binding Yavuz as the next purchaser Judgement: the two conditions on which the staircase was allowed either 1. Overriding interest by actual occupation under the LRA 2002 or 2. Protection under overriding interest or constructive trust did not apply Goodman v Gallant (1986) Express Trust Gissing v Gissing (1971) Constructive Trust Lloyds Bank v Rosset (1991) Implied Bargain Constructive Trust Oxley v Hitchcock (2004) Stack v Dowden (2007) Implied bargain constructive trust Joint Proprietorship Principle: The doctrine of constructive trusts cannot be used to contradict an expressly declared trust Principle: Defined the Constructive Trust Type : [A] by words or conduct induces [B] to act to [B’s] own detriment in the reasonable belief that [B] was acquiring the beneficial interest. Also the elements of the trust 1. Common intention 2. Detrimental reliance or change of position 3. Unconscionable denial of rights Principle: Bargain can be inferred from the conduct of the parties involved. Nothing short of contribution to the acquisition of the property will do Principle: “each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property” (Chadwick LJ at ) Principle: The starting point for determining beneficial interests where the legal title was held jointly is that beneficial interest will also be held jointly. This presumption may be displaced where there is evidence that this was not their intention. Size of share not based on size of contribution Fowler v Barron (2008) Paragon v Nash (2002) Barclays Bank v O’Brien (1994) Joint proprietorship Mortgages Mortgages: Undue Influence Issue: B had made the vast majority of payments towards a house that was in both his and F’s name and therefore attempted to overturn the presumption that joint ownership means a 50-50 share in the property. Judgment: CA denied this, emphasising how heavy the presumptions set out in Stack v Dowden are.Unlike in Stack, F and B pooled all their assets and it takes more than merely the majority of financial contribution to overturn the presumption. Principle: Lenders should not set rates that are oppressive and should set them in a way a reasonable lender would so do. Issue: A wife joined husband in executing a second mortgage of their home but signed docs under pressure from her husband and bank with false claims that the wife was guaranteeing a much smaller amount so the bank sought possession. Judgment: The Court held that the husband exercised undue influence, misrepresented the deed – i.e. committed a legal wrong – and thus induced her to sign the deed. As a result, the wife had equity against her husband to set the deed aside. Such equity was enforceable against a third party who had constructive or actual notice of the situation that gave rise to the equity or for whom the husband was an agent – Barclays in this case. The creditor would have constructive notice when the transaction in question was not to the wife’s financial advantage and which carried a significant risk of her husband committing a wrong in law or equity. RBS v Etridge (no 2) (2001) Mortgages: Undue Influence Four-Maids v Dudley Marshall (1957) Mortgages Bristol & West v Bartlett (2003) OR Alliance & Leicester v Slayford (2001) Skandia v Greenfield (1997) & W&G Bank v Boland (1981) Mortgages Mortgages: Defending Principle: Undue influence “arises out of a relationship between two parties where one has acquired over another a measure of influence, ascendancy, of which the ascendant person then takes unfair advantage” Take steps to explain transaction and risks to the surety (the Etridge protocol) 1. Lender must directly approach surety and inform them of need to seek legal advice from solicitor 2. Ascertain who surety has instructed to advise them 3. Lender must disclose all relevant information to the solicitor 4. A meeting between surety and solicitor must then take place Principle: The lender of the funds has a common law right to possession Principle(s): The Lender could either 1. Recover the shortfall after the sale or, 2. Bankrupt borrowers then force a sale Principle: Proceedings can be adjourned to “Wait and See” whether the Payments can be resumed the payment must be realistic and not speculative and could be the sale of the property Williams & Glyn’s Bank v Boland (1981) Stuart v Joy(1904) Mortgages: Defending Leasehold Enforceability Principle: The Boland principle dictates that an owner of an equitable interest (arising in this case under a trust of sale) would constitute an overriding interest and would bind a future purchaser of the property, provided the equitable interest owner was physically present on the property. The conditions: Overriding IF… mortgage is POST-ACQUISITION, SUBSEQUENT (ie not a remortgage), held by SOLE LEGAL PROPRIETOR, so long as the beneficiary OR OTHER EQUITABLE INTEREST HOLDER is an ADULT with NO KNOWLEDGE of charge AND the lender is NOT SEEKING A COURT ORDER FOR SALE. Principle: The original Lessees remain contractually liable for the duration of the Lease for example if they fail to pay the rent they can get sued. Principle: On Landlord Breach The court may grant interlocutory relief to a tenant in situations of profound and acute vulnerability Parker v Camden LBC (1986) Leasehold Remedies Hussein v Mehlman (1992) Leasehold Remedies Principle: Repudiation (non-acceptance of truth) where a landlord rejects please to repair premises, the court can give damages for inconvenience. Lee-Parker v Izzet (1971) Leasehold remedies Principle: Tenant is required to give notice to landlord and evidence of reasonable and appropriate expenditure to fix the lease Clays Lane Housing Co-Operative v Patrick (1985) Leaseholds Principle: Forfeiture of Lease. A far-reaching right that sets the exclusive possession back to the landlord and operates to end the lease early. Principle: landlords can waive breaches of covenants (Restrictive use of land Agreed upon). Guards against tenant purposefully breaching a covenant in order to forfeit. An express waiver example: continuing to demand and accept payment of rent Segal Securities v Thoseby (1963) Leaseholds: Express Waiver Expert Clothing Service & Sales v Hillgate House (1986) Leaseholds: Implied Waiver Principle: perhaps a new agreement for a new lease or even start contemplating a continuing relationship Billson v Residential Apartments (1992) Leaseholds: Restrictions on Forfeiture Principle: Courts won’t positively encourage means by which a landlord could “sneak up on a shop at night, break in, and install new locks so that the tenant loses his lease and can only press his nose against the shop window” Nemcova v Fairfield Rents (2016) Leaseholds: Breach Facts: Nemcova, a Leaseholder, let her flat out she was leasing as an Airbnb for guests. She was sued for breaking a covenant in her contract A long lease contains a covenant not to use the demised premises or permit them to be used for any illegal or immoral purpose or for any purpose whatsoever other than as a private residence. If the leaseholder advertises on the internet the availability of the premises (a flat) for short term lettings and grants a series of such lettings, do the leaseholder’s actions breach the covenant?” Judgment: The Upper Tribunal concurred with the FTT, agreeing that the tenant had breached the lease covenant by granting short-term lettings, which resulted in the property being used for a purpose other than as a private residence. Shiloh Spinners v Harding (1973) Rhone v Stephens (1994) Tulk v MoxHay (1848) Leaseholds Covenants: History Freehold Covenants: Enforcing Principle: Relief can be granted if forfeiture would be disproportionate Principle: Enforcement of a positive covenant lies in contract; a positive covenant compels an owner to exercise his rights. Enforcement of a negative covenant lies in property; a negative covenant deprives the owner of a right over property. Issue: Whether an equitable covenant limiting the use of a property could ‘run with the land’ and bind a future owner of the property. Judgement: passed an injunction to prevent Moxhay from building on the land. The covenant had been intended to run with the land at the time it was made, and all subsequent purchasers had been informed of its existence. Moreover, as a covenant amounts to a contract between a vendor and vendee, it is enforceable against a purchaser for value with either constructive or actual notice. As Moxhay had actual notice of the covenant, he was obligated to abide by it. Principle: covenant must be negative or restrictive of the user and relate to an identifiable dominant tenement which it must also accommodate a benefit from. Must also be made (intended to) on behalf of the covenantee’s successors in title.(In Equity) Wakenham v Wood (1982) Freehold Covenants: Remedies for Breach Principle: requiring demolition of a building built in breach of covenant; an injunction can be a remedy for breach of a covenant(EQUITABLE REMEDY) LAND LAW LEGISLATION LIST LEGISLATION PRINCIPLE(s) Explicitly established a system of two estates in land existing at law (fee simple and term of years) Set out in clear terms interests in property (and whether they could exist at law) Establishes how transfers of land and the creation of interests can happen S.2 states that contracts must be in writing, incorporate terms agreed and signed by both parties S.6 applies to adverse possession: property to be registered after 10 years of AP and the registered proprietor has 13 weeks to respond then a further 2 years to commence proceedings. S.116, for the avoidance of doubt… (a) an equity by estoppel … has the effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules* about the effect of dispositions on priority) S.28 - Priority of a right is based on “first in time” but the purchaser has a defense against any unprotected interests. Land Property Act 1925 Sch.3 paragraphs 1 & 3 - Para 1 - “a Leasehold estate in land granted for a term not exceeding seven years from the date of the grant(some exceptions - Para 3 - Easements capable of overriding: Legal easement which is not registered, overriding unless it is not within the actual knowledge of disponee and it not obvious on careful inspection of the land. s.52(1)(b) LPA formalities are required for an express trust such as an ER1 form. s.23(1)(b): In Mortgages, A registered proprietor has the power to “charge the estate at law with the payment of money” (A charge is the name for property becoming security for a debt. In Mortgages, S.101 and 103 of the LPA dictate that as a precursor to sale from possession, the power must have arisen and must be exercisable In mortgages Section 105 sets out the order from the sale and who gets what: 1. The discharge of prior incumbrances 2. payment of lender costs relating to sale 3. discharge of the mortgage money, interest, and costs 4. any remaining money paid to the former title holder In covenants, s.142 this section passes the benefits of covenants the landlord has made to new assignee tenant. In other words, the tenant will be able to sue the current landlord so long as it has reference to the subject matter of the lease. Governed by ss.141 and 142 Benefits and burden of covenants will run with the reversion. This means new landlord will be able to enforce covenants that have “a reference to the subject matter of the lease” (s.141) – could sue the new or old tenant. The current tenant will be able to enforce covenants against the new landlord, too (s.142). Personal obligations will remain with the original landlord. No continuing liability for anything else. S.146 Gives tenant “one last chance to summon up the will” to comply with their obligations. Statutory presumption of an intention in s.79 LPA 1925 Implied into agreements unless explicitly excluded to bind successors. Land Registration Act 2002 Administration of Justice Act 1970 Family Law Act 1996 Set out which leases require registration. For example, most short leases(less than 7yr) don’t need to be registered and typical transfers need not go through a contract stage If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met s.27(2)(a) confirms that this applies to a transfer of land Postpones any new entries to the purchaser's title for 30 days during the “registration gap” for a property. S.6 AJA gives wider statutory powers when faced with an application for possession as clarified by s.8 S.36 highlights in mortgages that courts may have a “Wait and See” period and adjourn the proceedings for the buyer to pay back the mortgage in a reasonable time. Connected persons can be joined into proceedings into repossessions for a mortgage under s.55 and notice of proceedings must be given to people with registered protected rights under s.56 Landlord and Tenant (Covenants) Act 1995 s.17, recovery of fixed charges for a maximum of 6 months s.18, no recovery for breaches of new/varied clauses s.19, overriding lease (more on this later…) s.3 Burden of all landlord and tenant covenants to an assignee of either unless they are expressly personal. s.19 If the former tenant is pursued for breach of covenant by an assignee, they can exercise the right to an overriding lease Leasehold and Reform Act 2002 s.6 No automatic release for the original landlord from liability. Rather, a request for release is made through a s.8 notice. Solve problems of ownership of flats (but not confined to flats). Management of common areas. Enforcement of positive freehold covenants