Monthly Archives: November 2021

p 134 land law activity 8.3

Standard

read moncrieff v jamieson . from this and your reading so far answer the following question. if a person owns a garage but no car exists and grants his neighbour the right to park in the garage can such a right exist as an easement?

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The case was an appeal against an earlier case which had ruled that where one had a right of vehicular access from a public road, this also meant that they had a right to park on the servient tenement, although that right was limited to parking vehicles which were reasonably incidental to having access to the dominant tenement. The respondents in the case owned a property in a location which made it impossible for it to be reached by vehicle.  The property had been owned by someone who also owned the land between it and the public road. A disposition of the property therefore had also included a right to access the property from the public road through the land of the original owner. A conveyance under dispute had provided a servitude right to access the appellant’s property for vehicles and pedestrians, as well as the right to temporarily stop there in order to load or unload goods or to take on or drop off passengers. The respondent had argued that his rights under the conveyance also included a right to park on the appellant’s land. He was successful with this argument in the lower courts.

Issue

The issue in this case was whether the right of way granted to the respondent to stop and drive on the appellant’s land also translated into a right to park there.

Decision / Outcome

The appeal was dismissed. The court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of the easement (for which a deciding court must consider the full context and details of the case).

land law p. 124

Standard
  1. david owns in fee simple property le nid unregistered land. he got his mistress clarissa to come live with him. he promised that she could live as long as she wished if she gave up her flat and decorated the kitchen and paid for a second garage for her car. clarissa agreed. she did all that was asked. then relationship ended 3 yrs later. david agreed to sell le nid to eric. eric visited when c was shopping. he was told by david that C ‘s clothes belong to a friend who would soon leave. clarissa wants to stay in the house.

will she be able to succeed

a. while david is he owner?

Clarissa can rely on proprietary estoppel. A representation was made and there was detrimental reliance. There is a constructive trust in her favour. she can stay while D is owner.

b. if david sells to eric?

D deceived E as well as breaking his promise to C. E acted in good faith. as the land was unregistered C could not have protected her interest. E made a reasonably careful inspection of the land.

E has no notice. He will not be bound.

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2. in 2018 dave and pam met and decided to wed after pam had finished her course of study which they expected in 2021. dave suggested to pam that she should move into his house registered land. at that time dave said we will get a bigger place when we wed but in the meantime why don’t you sell your flat and move your furniture here. could you also convert the garden into a place for you to study?

pam agreed. she sold her flat moved into david’s house and converted the shed into a study. for 2 yrs david paid all he bills and gave pam a small allowance while she studied. pam looked after the house and garden. 2021 relationship ended and dave gave pam notice to go.

Advise Pam.

There has been a rep and detrimental reliance. There is proprietary estoppel. She has done work but not spent money. It might be argued that as he paid her money she has suffered no loss.

She will probably not be able to stay as she has not spent money or done extra work on the house. she was looking after it for herself as well as for her boyfriend.

what would you advice be if dave had sold the house in 2021 to robert during pam’s absence and robert had given P notice to quit?

Then if robert had no actual or imputed notice then he is not bound by an interest even if she had one.

the issue is what rights Pam has . dave is sole legal owner. she can claim equitable interest by reslting trust or constructive trust. lloyds bank v rosset 1991

but this will probably not work. rosset was savaged by lords in stack v dowden

if she was a licensee then was it a bare licence or a contractual licence? or an estoppel

if there was a contract there must be consideration

pam should argue for estoppel

proprietary estoppel. there was assurance from dave

there was detrimental reliance

unconscionable for him to assert strict legal rights

courts would give effect to equity that has arisen for Pam.

coombes v smith 1986 . what is robert’s position. if pam has an interest in the house it would bind robert if it is on the register or is it supported by actual occupation

as she was in actual occupation then her estoppel equity is a right under registration laws as in LRA sec 116

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3. romeo was the sole owner of the freehold title to a house on registered land. after meeting on holiday romeo and juliet began relations in aug 2017. in march 2018 rome asked J to move into house. this required her to sell her home for 125 k

juliet was concerned about her rights after she moved into r house. in april 2018 after evening drinking wine at J birthday R said to her – think of this as your home. i want us to have a meaningful relationship

juliet had a son billy from previous relationship. bully was 5 and had to move school

Ju wanted to pay for the house to be redone so it was to her taste. march 2019 she asked R to give her permission to do this because as she said ”that would make me feel this is my home too”

R said she could refit kitchen bedroom and en suite bathroom. J paid 40 000 K for it. the house had 5 bedrsoom and 8 other rooms

march 2020 romeo decided to construct a guest house on the land attched to his house. J qualified as an architect. she desiged bungaglow. ot was 1 bedroo in modern style with kitchen living room looking at garden

bungalow was special in that it needed no heating – all from solar panels. n roof. these were due to j special knowledge and a an architect

contraction work 100 K which was half funded but R and hald by J. J supervised every stage of work and was completed 4 months ago. on regular occasions during work romeo said to her – you are amazing no one else could do what you do. this is your guesthouse

recently R began a relationship and wants J and B to leave

advise J on her rights under proprietary estoppel.

J has this. She spent a lot of money on it. This is an equitable remedy. She has the right to stay. This is like some cases. She was promised to be allowed to stay. There is constructive trust in her favour. she might have 50% of the house.

proprietary estoppel – problems. does J have rights under proprietary estoppel ? if so what remedy?

problem. 3 phases. 2017 moving into bungalow with child . 2018 redecoration and 2019 bungalow

J needs to show rep reliance and detriment. unconscionability?

2017 does r make assurance or rep? what he said to J about having a home, acquiring no rights in property is not enough. many assurances is enough gillet v holt

silence with the right background is enough thorner v major 2009 . questio is whether there is enough of a detriment. factors about claimant’s children grant v edwards 1986. enough. other cases coombes v smith take opposite view. needs some spending money and personal detriment such as moving kids

unconcionability – depends on the view of encouraging a mother to move into the house. reliance was placed on rep about having house as home. idea of home could be licence to occupy

it is a strained interpretation

that is not a promise of a property right

2018. redecoration. that does not in itself give property right. lloyds bank v rosset. wife supervised redecoration . showed some skills. no rights arise

this is the sort of work expected of a domestic partner. words said by J are about a home. issue might be about R s response. in letting J do the work he might have been indulging her or restricting her ability to remake the home

is he making her believe she has property rights?

2018 seems to give her no rights but J paid for the work so maybe it does give her rights

lissimore v downing 2013 similar case. homeowner allowed gf to move in and she claimed property right with specious suggestion that his saying wouldn’t you like to be lady of the manor? gave her rights in his huge estate

even forming a long term relation did not confer rights.

2019 construction of separate building is more than rosset and redecoration. she uses her knowledge as an architect to make bungalow. J pays half. we know of no representation

can she get rights like thorner v major ? words R says are similar to gillet v holt. they are a rep but ambiguous. maybe not a rep?

if estoppel is made out in 2020 then issue is remedy

giving freehold as in re basham is not rught. because she was not promised anything like that

a bold approach would be divide property. if words in 2018 were a rep then home is half owned.

gillet v holt approach – allow some money and acquisition of property rights

maybe freehold over bungalow

gillet v holt – cottage awarded.

jennings v rice

campbell v griffin graned a rught to mere compensation

40 000 spent on decoration and 50 000 on bungalow

debate about whether jennings v rice is unconscionability

presence of child make it unconscionable.

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activity 7.2 land law

Standard

could errington v errington and woods or tanner tanner 1975 have been argued on the basis of proprietary estoppel?

Yes they could have .

tanner was a milkman and croupier. had a relationship with miss mcadermitt whilst mrried. she had his twins in 1969. changed ehr name to mrs tanner but never wed

she moved in with him in 1970 and gave up rent controleld house hoping to stay till children were 18

tanner divred his wife. then married someone else and offered his mistres 4 000 to leave and maintenance he had not paid

she said no. he brought ction to remoive her. won. she went to ciuncil flat. appeal. said he hd a contrxual duty to let her stay

dennign sid that a lecience could not be terminated in this case. miss macdermitt was allowed to stay

no express contract. circs implied a contract. entitled to use hous euntil childrne gre wup

if circs changed and accomm was not needed the licence could be ended but it was not ended in the circs. twas a contractual licence and specifically enforceable.

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p 124 land law

Standard
  1. when will an interest arise through proprietary estoppel?

when a promise has been made, relied on to one’s detiment and then been reneged upon.

2. which factors are relevant in determining how to give effect to an estoppel interest?

whether it is best to give pecuniary compensation, whether it would negatively impact innocent third parties.

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activity 7.2 could errington v errington and woods 1952 or tanner v tanner 1975 have been argued on the basis f

p 117 land law activity 7.1

Standard

a. what were the relevant facts of ives investment ltd v high 1967

Mr High owned a site and was buiding a house. Mr Westgate bought the next door property and wanted to build flats

High saw that the foundations of flats went into his land by a foot

westgate and high talked about it. High agreed that he would permit the trespass if westgate gave him right og way across the land##high built his house so that the only access by car was through westgate s land

westgate sold flats to wrights. the conveyance did not say that there was a right of way. it was not regustered as a land charge

high was allowed to use right of way for 14 yrs. high built a garage on his land in relaince that the rught of way was extant

wrights then sold flats. the auction saud the flats were subject t a right of way. conveyance mentioned it

ives investment bought the flats and tried to get an injunctions to stop high using right of way. said it was void due to LCA section 4.6

it was not a registered land charge.

the court refused injunction . mutual benefit and burden was a ground. ives investment could not take beneft and deny burden

hopgood v brown 1955.

estoppel – equity arose form expense in building garage . wright had acquiesced. they stood by knowing he believed in rught of way. equity binding on ives investment. ives investment eas successor in title. they had express actual notice of right of way. it would be inequitable for them to deny it.

inwards v baker 1965

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b. could he decision in this case have been made on other grounds?

promissory estoppel. proprietary estoppel. Lord denning used the doctrine of mutual benefot in easements as a reason.

c. would the result have been different in registered land?

No it would not have been defeated. but then ives investment would have had to pay something for the 1 7 foot trespass. habermann v koehler 1997 . this was a court of appeal case they remitted it for a new trial where the judges found the licensee s right to remain in the property did bind the purchser for value.

p 110 land law

Standard

Q 1

1980 LIONEL BY deed granted a lease of blackacre a house with a tennis court for 30 years. in the house thomas covenanted to pay the rent, keep the house in order, not to do anything that might be a nuisance to neighbours, to allow lionel to use tennis court weekly

the lease reserved to the lessor the right of re entry for breach of covenant

december 1984 thomas by deed sublet blackacre to victor for the residue of the term less three days and shortly after assigned his lease to william

lionel consults you saying the house is in disrepair

, victor has been convicted of possessing cannabis on blackacre

and he lionel has not been allowed to pay tennis in weeks .advise lionel

how would advice differ if it happened after 1996

There is a legal lease under pre TLATA rules. It has to be registered as it is over 7 years.

There have been various breaches of the covenant. Thomas is liable for the rent that the other guy is not paying. Avoiding a nuisance involves avoiding committing a crime. So Thomas is liable. It is a restrictive covenant which touches and concerns the land and is negative. Keeping the house in repair is positive so burden will not pass under Tulk v Moxhay.

Playing tennis – if this is negative then is passes too

The landlord can take action against the original lessee or the assignee.

there might be a limit to how much of the rent a court would make thomas pay

thomas has legally sublet the property.

this is about leasehold covenants. is the lease legal or equitable? Is the covenant positive or negative? Does it touch and concern the land?

forefeiture might be available for breaches

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Q2

on 1 jan 1994 lena granted tricia a 30 year lease of stapleton house registered land at annual rent of 15 000 payable in advance .

stephen covenanted a surety a guarantee payment of rent by tricia

under the lease the tenant covenanted not to use house for business purposes

tenant was given option to purchase reversion

in 2 000 tricia assigned the lease to arthur who had granted a 5 year sub lease to stan

lena assigned her reversion to richard

no rent has been paid in 2 years

stand has opened a salon in the house

richard wants to know 1 whether the rent arrears can be recovered and from whom

He can recover rent from lessee or sublessee. There is a limit to how much the lessee will have to pay

2 whether he can enforce the user covenant and against whom

the covenant about not opening the salon is enforceable against the sublessee

3 whether he is bound by the option to buy

advise richard how if at all would your advice differ if the original lease had been granted in 1996

this is about before the LTCA. sections 17-19 apply to tenancies from before 1995 too. can the benefit of the rent covenant be passed to richard?

can he enforce it against tricia the original tenant?

stephen has surety. arthur is the assignee.

stan is the sublessee. the key thing is whether the covenant can be enforced

possibility of enforcing the covenant directly against stand due to doctrine of restrictive covenants

richard will be bound by the option if it has been registered or if supported by actual occupation

LCTA post 1995 – richard’s position is governed by section 3. tricia and stephen are released when tricia assigneds. section 5

in absence of authorisied guarantee agreement so richard can sue arthur alone

for post assignment arrears

richard can bring an action agaisnt stan under section 5

law about enforceability of the option has not changed.

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Q 3

in 2010 len granted tim a lease of commercial house for 30 years. len covenanted inter alia to maintain the exterior of the building in a good state of rapid . in 2013 tim assigned his lease to alf and in 2015 len assigned his reversion to rob

the exterior of the building is in serious need of repair and alf wishes to know whether he can enforce the repairing covenant and if so against whom

advise alf

This lease is registered because it is over 7 years. The covenant about keeping the exterior in a good state is positive and so will not pass. He can enforce it against Len.

how would your advice differ if =:

A: len and tim agreed that the covenant was to be personal

No because it cannot pass.

B ; len and tim agrees that len was to be released from liability when he assigned the reversion?

this is about LTCA . section 3 alf has to enforce the repairing covenant against rob. but not against len, assuming that len had compied with section 6 – 8

if the covenant was expressed to be personal section 3.6 a it would apply and neither ebneft or burden of covenant passes on assignment nor would len be released. BHP Petroleum great britain ltd v chesterfield properties ltd 2001

does an agreement that len should be released on assignment of reversion fall foul of section 25 on grounds that it frustartes the operation of the act

this involves a discussion of london diocesan fund v avonridge property 2005