Daily Archives: April 28, 2015

Lawyers love to complicate matters. First they say that formalities are necessary to produce

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certainty  and a just system of property transfer and then they resort to proprietary estoppel that produces uncertainty in the name of justice. They cannot have it both ways ‘ the formality rules should either be abandoned or consistently applies.

Discuss.

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Certainty is needed because if a law is too uncertain then it is not a law at all. The very word law implies a degree of certainty. The law needs to be consistent. People often complain that they were treated a certain way when in a like situation someone else was treated more favourably. This is why the la mushc strive to be definite and to be the same across the board. The law also needs to balance this with flexibility. This is why statute often says that it will do such and such having regard to the circumstances of the case. Moreover, the law shall often say that a court shall award whatever it considers just.

The law can have it both ways and should continue to do so. The law needs to strike a balance. At the moment the law gets it about right.

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In 2009 five friends Abe, Beth, Cath, Don, Edwina, decided to use their lottery winnings

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to buy Riverview for them all to live in. They each contributed to unequal amounts to the purchase price and the property was conveyed to Abe, Beth, Cath, and in trust for all five of them as beneficial joint tenants.

In 2010 Abe sent a postcard to the others saying ”’As I am going to be married I need to sell mu interest in Riverview. ” After he posted thhe postcard addressed to Riverview , Abe received a ttext from his fiancee ennding their relationship. The next day he intercepted a postman at the gate and tote up the psotcard.

A few months later Beth;s daughter Fern moved into Riverview. Fern had previously lived with her father but her parents deciided that Rivwerview’s location was better suited to her psychological development

In 2011 Cath wished to sell her interest in Riverview to help her finance a trip around the world. She called the others and meeting to ask if they would like to buy her interest. After discussing the idea with they told Cath they would buy her interest but could only afford to pay 60 000. Cath started on her trip without finally agreeing a price with the others. Before she left she made a will in which she left her interes tin Riverview to Don. Tragically Don was killed in a climibing accident.

Last year Edwain bought a second home in the Lake District. In order to fund its purchase and without telling the others she mortgaged her interest in Riverview to Ulswater Bank. In January 2014 Edwina fell behind in payments after she lost her job

advise Ulswater bank

a…………. what is the division of the beneficial ownership.

b……….  whether it is likely to succeed if it seeks to possess Riverview too have it sold

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The people started oout as joint tenants. This means the amounts they paid have no relavance. They own it all in common. The four unitieis are present. PITT. possession, interest, time and title. But there are five of them. Usually there can be a maximum of four people with this. I am flummoxed.

Abe intended to sever the joint tenancy. But did this operate? It was about intention. The message did not get through but it is likely that it still operates. In that case there are only four joint tenants holding a trust of land.

If it did not operate then the ius acrescendi means that the remaaining four will own the land jointly as tenants

Cath wants to sell. Don dying means that his share is held by the others – they all still own it jointly. Cath has not actually managed to sell.

Edwina has done something illegal. The others do not know and have not agreed. The bank could easily discover they were in occuppation. This is like Midland Bank v Green. This is like Chhokar v Chhokar 1981 where a wife was not told about a mortgage being taken out.

There is still joint tenenacy. If it is divided it must be divided equally.

b………… the bank is unlikely to succeed. The house was not Edwina;s along to mortgage. She did not get their consent and the bank should have checked this before advancing a loan as established by case law. There is a chhild there. The court wil consider the welfare of the child. It may be better for the child to be allowed to stay for a few years until her education is completed.

There are sufficient and appropriate controls on protecting the mortgagor both as to terms that can be

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included in the mortgage and also circumstances in which the mortgagee may possess the and sell the mortgaged property . It is however questionable whether or not these legal controls give due weight to the need to protect the mortgagee’s security interest . Discuss

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The title statement is somewhat true. The old historical rule whereby the mortgagee owned the land until the mortgagor paid back the loan is over. Nowadays the mortgagor owns it annd has to repay the credit to the mortgagee. If the mortgagor failss to pay back the loan then the mortgagee can possess the land but this is a lenghty and laborious process. It is deliberately made difficult and time consuming. Courts are laoth to hand over houses paeticualrly family himes to banks and building socities too easily.

One is not allowed to place clogs on the equity of redemption. Banks are not alllowed to attach other conditions such as to buy products from that bank as well as paying back the loan.

A mortgagee is allowed to charge an above avergage interest rate so long as it is not exorbitant. 4 per centage points above the commerical rate is acceptable for example.

Some take the view that courts favour mortagagors overmuch. This is why people are reluctant to extend creidt. It also makes interesr rates higher because lenders have to cover themselves for the eventualt that some people will defualt on the loan. Moreover, possessing and selling the land doe snot always cover their costs particuarly in the case of ngteive equity.

Consumer Credit Act deals with such matters.

BEYONCE in 1998 built a cottage on the grounds of her castle.

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twas next to the building that was her recording studio. She sold her cottage to Cher. The coonveyance included a number of covenants by which Cher agreed that ”for the benefit of the neighbiuring properties” that she would

a…. only usse the cottage as a private dwelling

b…. repair the guttering that runs across the roof of the studio and the cottage

c…. pay half the annual cost of maintaining the shared driveway that runs across servinv both the studio and cottage.

the conveyance further provides that the benefit of ….b….. covenannts was not to benefit fuutrue owners of the studio unless it was expressly assigned to them

Beyonce sold the studio to Madonna in 2006. After Dido purchased it she immediagtly began using it for her modelling agency. Madonna wrote to Dido to complain the consequential icnrease in traffic and pointed out that the section of the stuods guttering which was blown away in a storm was in urgent need of repair. In the same letter, Madonna enclosed an invoice foor Didos half of annual cost of maintaing the driveway. A few days later Dido emailed Madonna refusing to reppair the driveay or pay anything for the maintenance of thre drurway/ Dido’s email also mentioned that she had just received planning permission to create a separate driveway cottage.

Advise Madonna whether she can enforce the covenants against Didoo.

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First things first, m’lud. Be is understood that the benefit of a covenant can carry but usually not the burden. In order for a burden to be binding on a third party is must be negatove nature.

a …. this is a negative covenant. It may be framed in a positive format but its effect is still negatiive. One is not permitted to use it as a business premises.

b…. this is a positive covennant since it requires one party do somethign epesicall in spending money

c……….. this again is a posiitie covenant for the above stated reason.

A court will sometimes allow a psoisiyr coventna to bind a third party if the same dervies a benefit from the said covenant. This seems to be the case in b and c

Let us look at Tulk and Moxhay. This case from 1848 says that covenants can be binding on third parties in certain circmstances.

Madonna is a new owner and she ingerits the benefits not the burdens. She can enforce …..a………. since it is negative. It is  avery common one against ooperating an enterprise out of a certain edidifce

She can also enforce b    and c     because they beenfit the oother person too.

If the new drivea goes in then c  will no longer be enforceable since it shall not matter to the other party. She will have her own access.

A dream oof winching

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I was boaring a plane in Ireland. Bizarrely one had to be winched iinto it. I think it somehow became a helicopter. Slava the driver winhed someone else into it – I think a man. Slva wore black as the guards do. The weather was neight warm nor cold – it wa a little overcst and the grass was a deep green. There was ahrdly eanyoen around . It was like Kerry Ariport.  I had to hold onto his forearms asd he strappedme in and u p we went. I do not know where we would be flying to. Luggae had also been taken aboard by him in a similar fashion.

Ther were other parts t te dream that I do not now recall. At the opera house in the gallery a few night back I though of how I have mild veeigo. idsiliked being so high.

I thought of those mosntrous chuldren at that school in Ascot. But I that was when I awoke.