Tag Archives: Land Law.

Adverse possession

Standard

INTRO

this is called squatter’s rights; adverse possession    of land is a much     misunderstood    , though      highly topical   subject

at its most basic       the principle is that   long use of land without permission of the paper owner        can result in rights over it for the squatter

the basic title    to land is possession         and this principle         has long been reflected     in the limitation acts       whose broad policy has been that those who sleep upon their rights                should not be assisted to reocver their property

limitation  operates negatively as a bar                       to a claim   to the land and it may bar one person but not another – titles are relative

it does not create a title in somboedy  ; it prevents    somebody   from enrocing his title

a person can lose his rights         in land by failing to evist  a     trespasser

an advser possessor      may by virtue of his or her           long possession   be entitled t cliam a legal estate    in fee simple    ; absolute becoming     the onwer of the land      simply becase nobody else can cliam a better right then the paoer owner    whose title is now eextingusiged

the govenring state  until recenrly was the limitation act 1980

the land registration act 2000 has not reidcally    chanegd the rules for advser possesson so that it will no longer be a real threat to landowers   inr egistered land/ it is currenly necessayr to diosntignuish   three separte sets of legal rules   of advser possession

——————— unregistered land

——————— registered  land where the advser   possesso eomcpletd 12 years advser    possessoon before 13     october 2013

———————– registered  land where no advsser   possessor has cpppledt      10 years advser     possesion before 13 october  203

it is v important to be able to compare anc contasr the rules applicable to eahc of the there situation abve

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UNREGISTERED LAND

the limitation act 1980   section 15   provided   that no action shall   be brought by any person to recover   any land   after  the expiration  of 12    years  from the date   on which   the right  of action accrued  to him  or, if it first accrued  to some person through whom he claims – eg the person  who sold  him the land – to that person

so the period is generally 12      years and it may be established      by a continuous series   of advser possessor of land

the period may be extended   in case of disability – eg where the registered owner    is a child or lacks mental capacity

and the commencement   of the period may be postponed  in the case of fraud, concealment or mistake by the person trying to establish   advser rights in the land

these rues are simple  – effect of supervening  and successive DISABOLITIES

time has behn to run s topped either when an owner asserts his right of when hs right is admitted   by the advser possessor

eg by a signed acknowledgement in writing

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ACCRUAL OF RIGHT OF ACTION

No right of action can accure unless the land is in asdvser possesion though the date at whch this accral occurs varies   accorinf to the nature of the intyeres which the starnger seeks to bar

the date   on which  an advser possessor       can begin  building    up towards   twelve    years occupation  in iorder to cliam a right to the ladn depend on whether the person he has dipossessed is s freehold owner   or tenant    and whether the land was held  on trust

time runs against a person in prersent possession of lan  from the moment advser    possession is tkabne by anther

ie from the mimen that he has been dispossessed  by anither   or from the oment that he ahs discontinued        his possession   by another  – but there  must be no gpa between the period of advser possesion

neither    a licensee        nor a tenant at will can be in advser possession since they are in possession with the oner consent   and time will only begin to run in their favour  after the licence   or tenancy has been determined

J A Pye   (oxford)   v graham 2002

where a paper owner    has been dispossessed    by a chain of advser possessors the paper’s owner   title may be still barred ince a cumulative  period of 12 years   has elapsed

each advser     possessor has a possessory tit;er  which can be sold   gie away   or pass  at death  in the same way as a paper tie

after a total of 12 years   continuis advser    possession the paper   owner will be barred  will barred   and the first  of the advser   possesso ti achieve 12 years possession in his own right will win the title

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WHAT IS POSSESSION?

consider   whether   there has been   a discontinuance   of possession     where the owner    of a peice of land      for which he has no immediate use   leaves it unoccupired and a stranger   enters into possession        of it

does the postion depend   on whethe the paper owenr    itnends to sue the land for a specifi purpose in the future?

hwo specifi should the purpose be? how firm   is the intetion?

is the stranger’s knowledge   or ignorance of the intention relevant?————–

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buckinghamshire   county council v moran now  makes it clear  that where land   has been    acquired or retained       by the paper owner   for a specific future purpose there is no rule of law that he cannot be dispossessed     by acts of trespass     that are not inconsentn with that purpose

also – disctonuniance of possession ont he part of the paper owne, t must be shown that the stranger  has entered  into possession  – ie that he is in possession in fact and that he has the necessary intention to posses –

factual possession  implies some  degree of physical control over the land. the trivial   or occasional or equivocal    acts will not amount to porr of possession      much depends on the circumstances of each sae, including   the nature of the land and the manner in which land of that nature is commonly used

the fact of possession musty be accompanied by an intention to possess on the part of the stranger and the court have tended to insist on  unequivocal evidence of such an intention as well as on need for him to show that he made his intentions sufficiently clear ”so that the owner if present at the land would clearly appreciate the at the claimant is  not merely a persistent trespasser but is actually seeking to dispossess him”

powelll v macfarlane

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in lambeth   LBC    v     archangel   2002 –          the court of appeal    found in favour  of a performance   poet    who had acknowledged   the local  authority’s title   to the land. it was stated that padlocked   a front   door  is a clear     demonstration of possession

—————  battersea freehold and leasehold co v wandsworth LBC 2002 . the occupier       of a bombed out  pub site    allowed a neighbourhood tenants to have keys to the site   . it was held   that allowing access   for others showed that he lacked the intention to hold exclusive   possession for himself

————————  simpson  v fergus   2000        clarifies   that acts of exclusion   of the paper   owner are required;     a declaration of intention, however clear, will not alone amount to possession

—————— purbrick v hackney london brough council  2003. neurberg j    upheld the claimants contention that he had been in advser possession of a brjunt out shell of a building

it must be remembered      that the facts   of each case are crucial to assessing whether the required     intention to possess was present. batt v afams  2001             fencing          to KEEP In animals       dd not show intention to EXCLUDE  others and so could not found avdser possession. the facts fell on the wrong side of the border established in treloar v nute

pye in house of lords   conducted a useful  and detailed    review of the relevant cases on what constitutes   intention to possess  – animus possidenedi – and statewds that trh sqayeer must show     intention toe exclude the paper own and the rest of the world form the land to the extent hat is it reasonable praCticable and so far as \THE law allows

the intention         of the paper owner airrelane indeed in pue itself it made no dsifddenr that the advser possessor   admitted din edivce    that he would have paid for   the land had he been approached    for payment since possession can be advser  until a request for payment is actually made per brown wilkinson

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FUTURE INTERESTS, SETTLEMENTS AND TRUSTS FOR SALE

the rules   under the LA     are fairly straightforward       . note the alternative  periods available     to a person   entitled   in remainder or reversion  when adverse possession is taken.

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LEASEHOLDS

it is relatively     easy to use  the rules of adverse    possession   to dispossess   a tenant, but     not so easy   to acquire    a good title   against his landlord.   if a stranger     enters into adverse    possession of land   which is held       on a lease  , time will begin to run against the tenant  from that moment but     it does not begin   to run against the reversioner – the landlord –     until the lease has expired

note that where a tenant encroaches on adjoining land there is a repsumtopn that he or she has done sof or the benefit of the landlord

smirk v      lyndale developments ltd

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EFFECT OF THE LAPSE OF TIME

the expiration  of the limitation    period does  not operate as a ”parliamentary conveyance” ie      it does not transfer   the paper owner’s title    to the adverse   possessor , at least  in the case   of unregistered   land.-

it merely extinguishes the latter’s claim     the advser possessor    gains   a  legal estate in his own right

the adverse possessor    is bound       by burdens        that bind the land     – eg restrictive covenants –   but if the land is leasehold  he or she    is not liable   on the covenants    under the lease

where he bars a  tenant for years – ie  leaseholder –    he is    not in the sae position  as an assignee          of the lease and cannot   be sued after     the expiration of the lease for breaches  of covenant   committed while has in possession       of the land , though  he may be forced    during the term of the lease to perform the covenants by threat   of forfeiture

the freeholder   may evict       the adverse possessor once the lease has determined      – eg    after the tenant    has surrendered his or her tenancy to the freeholder

fairweather  v st marylebone property co ltd

tichborne v weir

taylor v twinberrow

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PERMISSIVE   OCCUPATION, PAYMENT   AND ACKNOWLEDGEMENT

——– acts done      by permission    of the paper        owner do not exclude      him from the land and so cannot contribute to an adverse possession claim,     even where that permission   is an informal licence   – implied licence.      but there are few cases    of successful defences        by paper owners    based on an implied licence

—————- payment      for land is an admission that the recipient         has rights over the land    concerned.        but ceasing      to make payments          can start adverse possession

——————- acknowledgement   of the paper owner’s title    by other means       will prevent      adverse      possession,       not only by the acknowledgement   but also by his successors, but only when    made in writing/

 

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Rights of the mortgagee

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mortgagee may of course sue for any money due   but it is more important   to consider the ways in which eh can enforce    his security if he wishes to recover this capital and pit anm end to th whole mortgage transaction eh can either sell the land or foreclose.

on the other         hand if he wishes to preserve the mortgage    but ti intercept           the rents     and profits      from the mortgaged land      he may neger       into possession    and foreclosure          procedures   . in practice         the mortaggeess powers      of sale provides    his most important       and usual remedy

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POWER OF SALE

where a  mortgage       is made by deed       the mortgagee    has statutory   power of sale which is exercisable     out of court. while the power arises when he mortgage money    become de it is not exercisable       until at least one of three conditions had been fulfilled b

LPA        1925      which concern default by the mortgagor

these are

—————— default        in complying        with a notice to repay   any of the mortgage money for three months

===================== interestremaining           unpaid for two months  after it comes due – unusual ground

—————— breach of some other       condition  of the mortgage   – ladsjy v TSB bank    1997

the power      is exercised     by the mortgagee entering into a contract    to sell as in lord waring v    london and manchsetr  assurance co ltd

though the mortgagee  is not a trustee   of his power  of sale and has a wide discretion  regarding    the organisation       of the sale,      he is under a duty to act in good faith      and to take reasonable        care to obtain   the true       market value.   consider  cuckmere brack co ltd v mutual finance ltd where the mortgageee was held to have been negligent

it is  often   said that The mortgagee      can  choose his own time for a sale   and that he need   not attempt  first to sell by public auction   before selling by private contract.

is he under a duty     though to takew reasonable care    in reaching   decision on these matters?

the sale must be true sale         not a sale by the mortgageee to himself ane even of there s no ruelt hat a mortgagee     cannot sell to a company in which he ahs an interest   a court ll need to satisfy       ITSELF  that such a sale is bona fide      and that the mortgagEe  has taken       reasonable steps to obtain the best           price reasonably    obtainable    at the time –     see the mortgagee’;s objection   to sale can be overridden   by a court in circumstances     ea exceptional   as those in palk

there is no general     principle       that the mortgagor   can control a sale simply because  eh is negative equity           – Cheltenham     and Gloucester   v krausz    1997

the dty   of a mortgage  is to ahcieve   the best price   reasonably   obtainable. the mortgagee is entitled   to choose the most convenient    time for sale ebvn though waiting may have achied a batter price    –     meftah   v lloyds tsb   bank plc    2001

on a sale the mortgagee sesl free from all interest  except   mortgages prior to his own interest in particular   he sells the mortgagors   legal title. he has no need to overreach interests       to which he already has priority  – because   he already has priority

thus the purchaser         takes the whole interests vested           in the mortgagor    subject   to the prior mortgages but free     from all interests       to which the mortgage   has priority – such equitable interests    behind a trust –  which are overreached

the mortgagee is a trustee f the proceeds   of sale which he is required   to apply in a certain order. LPA 1925

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RIGHT OF FORECLOSURE

foreclosure   is a judicial procedure   and a foreclosure   order   operates  to vest   the mortgagor’s fee simple    ost   of anyone interested   te court may he request   of anyone interested   te court may he request   of anyone interested   te court may order a sake LPa      – a provision   which serves     to protect     the interest of the mortgagor     and subsequent       mortgagees   and accounts  , in part, for the relative    infrequency   of foreclosure    orders today

foreclosure    is so rare that is  practically      non-existent       as a remedy in this jurisdiction   and the law commission     have recommended      its abolition

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RIGHTS     TO POSSESSION

as a legal   mortgagee       has a term   of years   vested in him he may go into possession    as soon as the mortgage   ius made or  ‘before  the ink is dry  on the mortgage’ as it was    vividly expressed  in four maids    ltd v dudley marshall   properties ltd

unless he has      contracted    out of the right   either expressly    or by implication

the courts are slow   to  imply a term       excluding   the common law right      since even though the mortgagor   has been guilty         of no default    it is only in this way that the mortgagee   can ensure    that the     mortgaged    property is being properly managed      and the value of the security preserved

western bank tltd  v schindler

in practice      it is uncommon     for a mortgagee to seek possession       expect as a preliminary     to the ercise           of his power of sale   and in part this is due    to his duty   to account strictly     to the mortgagor  for any rents and profits    which he receives   and ”on the footing of wilful default”    for all that eh ought to have received

white v city f london brewery co

there is less risk      in taking possession     where the property is lkready let to a tenant in such a case a mortgagee  takes possession by directing the tenant to pay hsu rent to him sinetad to the mortgagor

while the court     has interest  jurisdiction to stay possession proceedings  it iwll only exercise   ot when there is reasonable prospect  of the mortgagor  paying off the mortgage  or otherwise satisfying    the mortgagee  within a  short time

brimighgm citizens   premrnant building  society v caybt

mbil oil co   ltd v rawlinson

the courts power to stay possession proceeding is the only protection for commercial mortagprs  statue – administration of jsytie act  1970   and 1973

has intervened    to protect       the mortgagor of a dwelling house by giving   the court powers    to adjourn       possession proceedings   or to postpone    the giving up of possession ro such a period     as the court thinks reasonable

the rocurt must eb satisfied     that the mortgagor   is likely to be abler within reasonable       time to pay any sums      de under the mortgage   or to remedy   some other default

the courts power s are exercisabbvle    even in the absence   of arrears or default

western bank ltd v schindler

some cases show great sympathy   towards domestic  borrowers

cheltenham    and gloucester BS v nrogan 1996  the court of appeal    allowed the whole    remaining term of the mortgage 13 years   for the mortgagor  t clear the arrears

stating that although case had treated       two years as a normal period to clear arreas   there is no particular length of time which is a reasonable period    within which arrears   must be oaud  under the wording section 36

the common     law right to     possession was examined    in great detail    y the court of appeal                  in ropaigealcach v barclays bank plc 2000

where the mortgagee does not apply          for a court order choosing      to use the common law      possession rules instead       the court has no power    to suspend proceedings SINce section 36        does not apply

where the mortgagor relates t domestic       premises   and the mortgagor is in occupation   and object to possession   criminal law   requires court    proceedings   to be taken by the mortgagee in order to get possession

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POWER TO APPOINT A RECEIVER

the mortgagee     has powers to sell       , foreclose       or take possession      of the land   mortgaged

rules and general fairness         principles       govern the circumstances     in which each of these   rights may be legitimately   be exercised        and protection     of domestic   borrowers   is much   stronger   than that for commercial    mortgagors

registration    requirements  must be followed      in order to ensure         priority   for a mortgage      over other secured debts

 

Discharge and modification of restrictive covenants

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GENERAL POWERS

in some circumstances    the courts may refuse   to enforce a restrictive covenant. eg where the person entitled to enforce it has remained inactive in the face of oepne breaches or where      the character  of the neighbourhood has changed sufficiently.

in chatswoth estates    co v fewell    it was argued   that the benefit    of a covenant   had been abandoned   when the covenantees  had done nothing about breaches  by others in the neighbourhood

proceeding only aginads the defendant      – on the facts the court    found that there had been no abandonment

shaw v applegate   it was held that a covenant or     in breach of the covenant    had been ”lulled into a false sense of security”      by the covenantee’s delay  in enforcing  the covenant and so an injunction was refused and damages awarded   instead for the breach

the LPA    1925     confers  on land tribunal     a discretionary  power rot modify or discharge       a restrivie covenant   with or without compensation and sets out in detail  the criteria

a covenant may be discharged    if

———– it should be deemed obsolete     due to changes   in the neighbourhood

—————— it impedes    a reasonable use of the ladb provided    that money  compensation is adequate   and either the covenant ”provides no practical benefits   of substantial benefit    or advantage ”  r it is against the public interest

——————- the parties are expressly       or impliedly

————————— it will not injure  anyone entitled  to the benefit

on the whole the tribunal  has taken   a restrictive   approach  in the exercise   of its powers and   has refused to order the modification or discharge    of a restrictive   covenant merely on the ground    that planning    permission has been obtained   for the proposed user. although the extension  of planning    control under the maibn  planning statute   the town and country planning atc 1971   has reduced the importance   of provate planning

where freehold and leasehold covenants play a central  role

the two systems continued ti operate side by side

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PROTECTION     OF RESTRICTIVE COVENANTS

it is important to remember to protect  restrictive covenants. as an equitable interests in the land the restrictive   covenant  entered into before 1926   was and remains subject  to the doctrine of notice

restrictive covenants    entered into after 1925      – except those made between  lessor   and lessee  are regiustravle      as class D ii    land charges in the land charges  register – unregistered land – or should be protected  by entry of a notice – registered land under 2002

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REFORM

28 march    2008    – law commission    issued a consultation   paper on easements , covenants   and profits a prendre.

proposals were radical and recommended    replacing  the current law    with a new land obligation which would allow the enforcement        of positive and negative    obligations

by and against successors in title to land

land obligation COUld only be created  expressly and would be  entered    on both affected registered titles

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INTRODUCTION OF COMMONHOLD

commonhold    and leasehold       reform 2002   finally introduces   commonhold   into the UK

commonhold      is a scheme        whereby units     within development may ber owned  as a freehold,

management    of the land was subject     to the scheme can be conducted   as a whole, commonhold exists      in many other jurisdctions. a black of flats   can be managed by commonhold association   collectively    with each flat   owned individually

reciprocal  positive     covenants   will help    to enforce     the rules    of the collective     and to manage   the common parts   of the building

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REQUIREMENTS

the commonhold will be run    according     to a certificate  of incorporation   , memorandum   and articles   of association    of the commonhold  association  – section 2  of schedule ; the   commonhold     association ‘s community   statement  section 31  which contains   the reciprocal the obligations   related to the land    and the terms   of collective   management   of the development

the title must registered   as an estate    in commonhold   land  section 1.1

there must    be at least   two units   within the scheme  section 40.   a commonhold   may consist of flats,  houses, shops ; it may be residential  or commercial.

the main aim   of the    2002 act    is to improve  the position  of residential   leaseholders   within    blocks     of flats

the developers  of the land   must start with registered   absolute   freehold title   and anyone else with an interest in the land    must consent     before registration    as commonhold takes place. section 2.1

unpopular requirement greatly weakens   the act’s ability   to achieve its main   aim since   it will prevent many   blocks of flats from being    converted      to commonhold

once the first unit it sold     , the owner of the unit will be registered as a proprietor, the commonhold    association       as proprietor   of the common parts –       the developer        as proprietor   of the remaining     unsold units

on sale of the final unot the commonhold       association   will take effect

the commonhold    associ    can wind itself up        at any time      by passing unanimous     resolution   and applying       for termination   section44

if only 80% of the members     vote in favour of termination      then a court application is needed. section 45

the owners     of commonhold units     which are flats are in a  much stronger position      than if they had    been held     leasehold     ; there is ni risk    of loss of land         due to non-payment      of service charges  section 31.8

each commonhold    unit is freely      transferable     section 15        but long leases       cannot be granted       and subdivision   is not permitted

transfer of unit      automatically      passes the burdens      of the covenants   to the buyer

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MANAGEMENT

commonhold      association   which manages    the common parts     of the development    will be a private   company whose members will be the owners      of the units

the association      will have legal title      to the common parts    such as staircases, gardens, parking areas      and hallways

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RECIPROCAL OBLIGATIONS

in the context of this chapter   the key change introduced by commonhold    is that positive covenants      can be enforced    , imposed and run with the land

 

Extent and extinguishment of easements

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the extent     of an easement     depends on its mode of creation.   it it is created    by epress   grant, its extent   is dependent     upon the proper    construction     of the grant in the light     of the surrounding  circumstances  ; if       by implied      grant

it is deendent upon    the original   parties’ intentions        and if by prescription    it is depepdent upon the user i e      the use pf te land which the claiamnt has established      in his favour. although there are a fair number    of cases on this topic    it is not conceptually        difficult

apart      from by statute     , easements      may be extinguished   either    by  i       unity of possession   and ownership    or by ii       release. the former method deprives     form the principle    that the dominant    and servient    owner should be different persons.     the latter amy be     expressed or implied   ; for an        expresse release      a deed is required  at law whereas         release      will be implied    where the dominant       owner has abandoned   the exercise        of the right   with the clear intention   to rlease it  –   20 years      non use is generally     sufficienr raise   the presumption    of abandonment –      courts were traditionally      eager to presume   an intention to abandonw ehre an easemn had been unused     for 20 years without   explanation  but it now now clear that only a very simple       explanation    is need for     no use

courts are reluctant        to presume abandonment    and now recognise        that a dominant owner is not likely to abandon     such a vlaublae    property rigt which ight be most useful in the future

benn v      hardinge     1992

the court of appeal   refused     to presume an intention      to abandon    a right of way which      had gone unused   for 175   years    after the dominant    owner explained    that throughout    that period      there had been  an alternative      means of access to the land

it appears      that aS A AMTTER Of common    sense an easement will cease to exist    when it no longer benefits     the dominant  land but the test ot be satrsified is a stryc one

huckvale v     aegean hotels   1989

where ;lsad lj stated

”in the absnece     of proof of abandonment    the corut whsould be low to hold tha na esment has been extinguished by frustration       unless the evidence shows    clearly yht because         of a change of circumstances   dince the date    of the rignal    grant there   is no practical     possibility of its     ever agains benefitting    the dominant   tenement  in the manner  contemplated by that grant.”

wall v collins 2007      it was held that when a leasehd old a freehold    Esta were merged it dd not gave the effect of extinguishing     a right of way that hd been attached to the leasehold   interest.

an easement     had to be appurtenant      to a dominant tenement  ut  it necessaril   to a y praticualr  interers   for the tie  ebing

after merge of te leasehold and freehold the domain t  tenement  remained ucnagged and there as no legal impediment      to the contued enjoyment     of the easement by the occupier       for the time ebiugn that tenement

the decision  was aaklsi deals with the creation fir wasmenrt ci SWCTION sixty two    fo the LPA 1925       and the extent to WHIch  right of way may e exercise fvoer land     which was not originally part of the dimanent tenement

in kebnt v kavanagh       was also applied

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RUNNING WITH THE LAND

although easements are proprietary rightsm this does not mean that they will automatically   be enforceable   by third parties such as purchasers of the  dominant  and   servient land

the BENEFIT of a easement will be enforceable    by the purchaser     of the dominant land since it is a proprietary right not a personal one

but the BURDEN  of an easement will only run with the land if the criteria   discussed below are followed.

it is thus not enough   to consider whether an easement   has been validly   created since    ts burden will only bind future   owners of the land to which it relates   if it has the characteristic of ”running with the land/”

it is important to know whether an easement   is legal of equitable     since there are separate rules for    each and since  equitable    easements should be protected      by registration . it is convenient  to consider   the categories    separately.

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REGISTERED  LAND BEFORE   L.R.A.    2002

this is for comparison. 1925 LRA has been repealed.

LEGAL EASEMENTS

the benefit of an easement automativall passed to a purchaser or transferee  of the dominant tenement.

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UNDER  LRA 2002

note the transitional   provisions which applied  until    13 oct 2006   and protected   as overriding interest all existing easements and profits  where they affected a registerwd title wether   the easement was equitable   or legal.

it is likely after the transitional   privisions came to an ened in 2006   some easements   ceased to exist    since they were no longer overriding    and had not been protected  on the register

the position   is now that   on first registration schedule   1 para    3   provides that all  legal easements   are interests   that override   a first registration  of the servient tenement

thus legal easements   will bind the first   registered    proprietor   and all subsequent   transferees     of the servient     tenement.   where legal easements      are expressly created   after first registration   they must have been entered on the register  in order to exist, and once registered    will bind all transferees     of the servient   tenement

impliedly       created legal     easements MAY override    under schedule 3   para   3  if they are either    known to  or reasonable  discoverable by the purchaser or have been sued within a year before the purchase of the land

schedule   3 para 3     refers   only to legal easements     and legal profits. thus new equitable   easements  no longer    override  a subsequent   purchase   – celsteel reversed –    they must   be protected    by a  notice      on the register.

eventually    expressly created  easements  will only exist   once registered    electronically.

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UNREGISTERED LAND

THE benefit     of both legal    and equitable    easements   will automatically    pass to a       purchaser    of the dominant tenement,  in the same way    as in registered    land

again   un relation to the burden  different rules   apply to legal and equitable easements

————– legal easements   ”bind    the whole   world ” because       they are legal rights    and so are binding upon a purchaser     of the servient   tenements

———————–     equitable easements      must be registered       as  class D   iii land    charges under  the LCA   1972      if they  Are to bind a subsequent     purchaser for the money or money;s worth      of the servient tenement      ,

the exception to this rule               is equitable     easements created   by proprietary      estoppel; see lord dennings  speech in ives    v    hugh 1967

such easements unfortunately      use the doctrine of notice     and so will bind all transferees        of the servient tenement    expect a bona fide      purchaser for value    of a legal estate in the servient tenement       who has no notice   of the easement

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EFFECT   OF THE LAND REGISTRATION   ACT 2002

although  the enforceability   of easements   in registered  land  has been explained   above, some further   points are worth   making and the importance of a few should be   reinforced

under LRA   2002 easements    created by electronic  deed will be   legal easements and those created by electronic   written contracts   will be equitable.

further once electronically   conveyancing  is operational   expressly created easements  will not exist until   entered electronically   on the register  of the servient land

so it will eventually be impossible    to create easements   in registered land   at all expect electronically.

first registration     takes effect    subject   to any legal easement   or profit a prendre   LRA 2002    schedule 1     para 3

it does not matter    whether the easement     was created  formally by informal   grant or by prescription

but unregistered   rights should be   disclosed  on first registration   and protected    by a noitce

note also

————–overriding status can no longer  be claimed     for any easement created out of regustered title   after 13 october    2013    since only legal rights     override and legal status is itself      dependent upon registration  LRA  2002   and schedule 2   para 7

——————– but implied     easements   will override     even though   they can only    be detected   via their use

————————– undiscoverable   easements   will no longer override   a transfer

—————————— there was a transitional   provisions for equitable   easements which thus remained  overriding  for three years   from 13 october   2013    ; they do not require   registration   but the three year period    was intended to allow this to occur. but it was likely that some unprotected easements   will have disappeared      in october 2006    when the transitional   provisions ended   since equitable easement no longer override

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PROFITS A PRENDRE.

a profit    is a proprietary  right to enter the land of another and to take produce    of that land such as crops, timber fish or turf, legal   or equitable.

in registered  land all prifts all overriding      interests nd under    the LRA 2002

legal profits can be registered   with their own title. a distinction   between profits   and easement as stated abovei that profits can exist in gross

ie they may bind servient  land even if the person with the benefit     does not own any land. profits can be created    in much the same ways as easements. detailed considerations of this is not in the course

 

Presumed grant of prescription.

Standard

where     an owner of land     has long use    of a right   over land belonging    to another then if the right is capable     of being an easement.

it may eventually    become    an easement   simply through   the long use. as it would be unfair to deprive  a person  of an easement   which he or she  has enjoyed       over a long period of time   on the grounds that there s=is no evidence   of a deed       of grant      , the law       is prepared tp presume  such a deed if certain  conditions are fulfilled.

the easement   thus created   will be legal    and the required period  of use which       must be proved depends upon     which of the three methods of prescription  is being relied upon

easements      created     by prescription   can only operate   between freeholders   and so throughout the period   of long use    both tenements    must   have been occupied   by fee simple owners.   the easemt must of course satisfy    the general requirements   for an easement    under re ellenborough   parl

this area of law  is extremely complex    and it is probably most effective    ly learnt through practice    in the analysis of the examination  style problem questions

broadly   speaking the claimant      must show  tow things that his use   has been of the appropriate   nature    and that he has acquired      the right     by one    the three      methods of prescription     described  below

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NATURE OF USE

THE Use       must be  as of right – ie       not enjoyed by force, secrecy   or permission –    it must be continuous   – this obviously a matter of degree –    and it must be in fee simple  – i e   by or on behalf     of a fee simple   owner against   a fee simple owner

mills v    silver

as the rationale   of the law   of prescription   lies in the acquiescence   of the servient   owner,  he should not be      bound by a kind of use    – e g secret    or infrequent  – which    he could   not reasonably   be expected    to interfere with   and as the basis of a prescriptive  claim     is immemorial      user an easement   can only be prescribed    for in respect   of a fee simple   estate

diment v foot ltd

jilgour    v gaddes

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METHODS OF DESCRIPTION

the three methods    of claiming     an easement        by prescription    which all require    a period      of continuous   use by the claimant are:

———- prescription at common law

————— the doctrine   of lost modern grant

——————– statutory prescription

both   at common law and      under the doctrine    of lost modern    grant  – based   on the fiction   that a grant was made   but has been lost – 20 years    use   –  of the right kind –    is sufficient   to raise the presumption     of a grant’

at common law      the presumption    may be rebutted      by evidence         that the particular      yse could not have been enjoyed   at all times since 1189      and under the doctrine    the presumption      may be rebutted      by evidence       that at some time dyrung the period of use      there was no person who was capable        of making the grant or no person    to whom the grant        might have been made.     the prescription act   1832       attempts to deal       with some of the difficulties    of the common law but it is a complec and badly drafted statute

note the different      effects    of the different statutory    periods       20 and 40 years    for esaements    other tha light, 30 and 60 years for easements       for profits   abnd 20 years            for easements of lights      and note also the decuctions   to be made in calculating   the different periods

remember

————all  periods      are those before some   action in which   the claim is challenged

———————- no act    is deemedn to eb an interruption     until it has been acquiesced     in for one year that poeriod starting    once the party interrupted       had notice both of the interruption    and of the person making it

 

an example makes it clearer

albert has been walking over his enoighbour’s land       to get to the main road   as long as he can remember

he is now 65    . the rnoughbour    built a fence to prevent albert    from waking over his land   at some time in the past

assume   that albert   can show peaceful      open, continuous   use as of right without peromission       of neoughbour

whether labert    is prevented   from claiming an easement   by statutory [prescription  will depend upon

————- whether the interruption     caused by the fence     continued for at least  a year after albert found the fene    without albert trying   to get around the obstruction  and

—————— whether    albert has exercised    the right   for at least twneyt eyars going backwards   in time friom the date of the court action

 

 

if the doctrin   lost modern grant   us used it will be oissible for albert to argye   a continuous  20 year period    from any tie in the past, regardless of wether the fence was an interruption

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REFORM

the law commission    issued   a consultation   paper with proposals   for reform of easements, covenants     and profits a prendre   on 28 march    2008

among the main       problems identified    in the current  law ar ein respect of easements   the fact that some are acquired       too easily some may be difficult  to detect  and generally hrte is no means to modify them unlike  the provision    in relation to covenants

the law relating   to mpied creation is described      as begin neright straightforward or clear and acquisition    y prescription   has been widely acknowledged    to be defective       with three different     and overlapping methods     and the rpescne of aracenn provisions  in the prescription act   1832

the proposals  if implemented        would abolish       the effect   of section 62     and would be far-reaching    ins ome respects

the proposals     are discussed in detial newsletter   ion the VLE    so make sure that you are aware of them     and their potential impact   you will need to keep you eye on consultation

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Licenses and proprietary estoppel

Standard

the nature of licence

a licence is permission to enter or remain on land belonging to another person . it may be granted expressly or impliedly   to function merely as a n exemption from what woul otherwis eb trespass

it might be in some circumstances that the licensee has even greater rights – approaching those of the landowner.

source of confusion –             variety of approaches that courts have taken to what appear to be very similar  fact situations

legal status f party in occupation of land pursuant to some family type arrangament

court may say

———- that he is a BARE LICENSEE   whose licence may be revoked

——————— that eh is a CONTRACTUAL LICENSEE whose licence may NOT be revoked in breach of contract’—

——————— that an EQUITY   has arisen in his favour   under the doctrine of proprietary estoppel  which entitles him to remain   on the land under a ”licence by estoppel”

——————– he is entitled to a PROPRIETARY INTEREST  under resulting or constructive trust

not always possible to PREdict  which solution will commend itself to the courts

———————————————

DEFINITIONS AND   CREATION    OF LICENCES

BARE LICENCE

a bare licence     is sompy   a permission to ebnter   or use land where consideraiton has not been given

the licence prevents a claim of  trspass   unless he exceeds the bounds of the licence

scrutton LJ  in the calgarth ”when you invite a person  into your house to use the staircase you do not expect him to slide down the bannister”

bare licence created   expressly   or impliedly  for example   there is an implied licence for all persons to walk up the path and knocked on the door.

a bare licence    may be revoked without notice at any time  and is automatically   revoked   by the death of the licensor    or by disposition   of the land in question –    expect where a  licence is granted expressly ir impliedly to c alss f people by definition rather tha  to an individual

i e to postmen

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CONTRACTUAL LICENCE

a contracual licence  is unsurprisingly   granted in exchnage for consideraiont

as a result   general principles  of contract   law are relevant  to their creation

very often contractual    licence has been  used in an attempt    by a landowner    to evade   the stattuoery protection   afforded to leaseholders   but remember that courts    do not like sham licences

contracual licences include    paying to use a car park –      a ticker for the perfomrnace of a play

it can be seen that the contracual tlicence is v flexible      and capable of covering many dealins

key issue are about contrcial licences

– revocbaility

–              wether they bind third  parties

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LICENCE COUPLED BY INTEREST

SOMETIMES a licence     is granted   in connection   with an interest     such as profit a prendre   . when a person   is given the right     to shoot animals   on land they may be granted    a licence to enter the land     to remove the dead anima;s    the licence exists ti faciliate    the eomployment of the interes        . such a licence        cannot be revoked before the interesr     concerned hads ended

if the interest   in land   binding   on successors   in title   the licence   attached   to it is    also binding    and may   be validly    assigned    to third parties.

————————————————————

LICENCE BY ESTOPPEL

these licences    arise by way    of the doctrine of proprietary estoppel   whereby a person has acted     to his detriment   in reliance on an assertion    by the landowner    that he will acquire       an interest in the land

detrimental       reliance may take the form    of expenditure     such as improving   the land    in question  or failure   to take advantage    of offers of other land

in such cases        the courts may find    that it would be unconscionable   for the landowner to rely on   his own strict legal rights and hence to deny the existence         of any interest in land for C    – the court will then    decide that kind of interest C       should bi given in order       to satisfy    his equitable    right

in some cases   this has resulted in  grant of land    to C   of a  licence by estoppel    in others the transfer  to C or freehold

ottey v grundy   2003      the CA decided   whether   there had been    detrimental reliance    on the part    of the claimant   and how to give effect   to the equity   that arise    in her favour

—————————————–

CONTRACTUAL LICENCES

FORMATION

a contractual licence to occupy land   or premises   to exist – all essential ingredients  of a contract  mjust be rpesent     ie e thre must be offer and acceptance   , consideraiton , any required   formalities and an intention to creat legal relations

———- tanner v tanner contrcualy licence

———– horrocks v     forray   – no contrcualy licence

——————- coombes v smith   – no contrcualy licence

although dealings within a family   often do not show intenion to create legal relations they may smetimes do so

the privy council  in goomti  ramnarace v    harrypersad  lutchman  2001

this was in spite    of it being a family arrangament   and at leats partyl an act of generosity    an agreement that a persion   could  ove into land and later buy it when she could afford it and to so gave rise   to a TENECNY AT WILL and NOT to a lience

________________________

REVOCABILITY

a while  a bare licence    may be revoked    at any time  and a ,licence   coupled with a grant may be irrevocable , the question of whether  COtrcutal licence   may be reviked   in breach  of cobtract has only     been resolved   in recent  years

the posito a t common law   was formerly   that the licensee   only remedy was toi sue the licensor  for damages   for breach  of contract

wood v leadnbitter

thimpson v park

the intervention of equity   has mean that reviocation of a licence in vreach of contract will generally be restrined by the grant  of an injunctii

winter garden   theatre london v  millennium productions ltd

as it is a discretonary remedy    an injunction wil not be granted to proect  licensee who ahs been guily of laches     – undue delay –    or who has been himself in breach   of the terms of the licnese

on the other hand it may be garnetd even though the contarc ius one of which equity   qwould not normall  order spieic performance

london borioygh iof hiubslow v twickenham   garden develooments   ltd

equity    may even order specific performance    of a contractual licence   that has no te been netred upon

varrall bv great yarmouth   borough council

it appeared for a time that the use of equitable remEDIES   to uphold contractual      licence has given the latter more of a proprietary flavour       i e contractual licences    were becoming   more difficult    to distinguish    from lease sin terms of the rights which they confer upon   the holder

the case of ahsburn   astalta   has made the differences   clear and confirmed       that contractual  licences  are   not proprietary   interests

________________________________

ENFORCEABILITY    AGAINST THIRD PARTIES

usually a contract  – and hence   a contractual licence – affects  only the parties   who have  entered  into the agreement. thus a contractual licence should not be capable of   binding third parties   ; a purchaser   of the land   is not a party    to the licence   and so should be able  to evict   the licensee   in spite of the apparent  unfairness   of this situation

the orthodox view    illustrated   by king  v david allen   and sons billposting ltd   and clore   v theatrical  properties ltd   is that a contractual licence  cannot be a proprietary  right and therefore   cannot bind a third party even if there is notice – ie. he knows of existence  and the rights or the license

against  this views which  is supported   by the weight  of academic authority   stand lord dennings’s   judgments   in errington   v errington   and woods

bionons v   evans

in bionions v evans    lord denning built on  his arguments   in favour   of enforceability of the  licence   against third parties   by relying upon the existence  of a constructive   trust triggered  by the knowledge   of the plaintiffs   of the rights of    licensee since ”it would be utterly inequitable   for the pinatuffs to turn the defendant out contrary   to the stipulation   subject to which they took the premises”

a constructive trust  is a trust created to prevent   fraud   or unconscionable   behaviour   and which has sometimes   been used by courts   to achieve justice   in a situation   where strict legal    rights would not do so

DHN food distributors   he stated more generally   that a contractual   licence gives rise    to a constructive trust   a  view which  receives  some support on re sharpe

court of appeal   in  ashburn anstalt   v arnold   1989   has more recently  criticisetd    the iew   that contrcualt licences are generally binding   on third   parites while    recgnsig    that in some circumstances    a constructive trusts   may be imposed   to compel a purchaser   to give effect   to a contractual licence

ashburn anstalt

”before   errington   the law appears   to have been clear    and well understood.  it rested on an important   and intelligible   distinction   between contractual   obligations   which gave rise   to estate or interest    in the land and proprietary rights  which by definition     did. the    far-reaching  statement   of principle  in errington   was not supported   by authority   not necessary    for the decision      of the case and per incuriam   in the sense that it was made   without reference     to authorities     which if they   would not have compelled   would surely have persuaded   the court to adopt    a different ration. of course    the law must be free   to develop. but     as a response     to problems    which had arisen    the errington rule   (without more) was     neither practically         necessary not theoretically     convincing.   by contrast   the finding on   appropriate facts  of a constructive   trust may well be regarded as a beneficial   adaptation     of old rules to new situations.”

 

in general a contractual licence will not be capable of binding a third party

previously   it was laos thought that the holder of any type of licence could not sue in trespass or in nuisance

but this has been challenegd in dutton  v Manchester airport  1999

hunter v canary wahrf ltd 1997

note that  in duttion a 2 to 1 majority decision – the dissenting member of court of appeal was a property lawyer

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Enforceability of covenants

Standard

the landlord and tenant covenants   act 1995      came into force i janaury  1996

this latered the law   in this field] \

most of its provisions  apply only to post 1995 leases   and therefore the previous law is important   for lease before tta

———————–

LEASES CREATED BEFORE 1 JANUARY 1996

under doctrine   of privity    of contract   the origianl parties  remian liable   on the covenants of lease for the duration of the term

as stated by lord templeman  in city of london corporation   v fell

”the common law did not release   the original   tenant  from liability  for breaches   of covenant committed  after an assignment  … the fortunate   english landlord  has two remedies after an assignment   namely his remedy   against an assignee  and his remedy against the original tenant.”

this can b onerous for original tenant.

centrovincial estates    v bulk storage   – original tenant   was liable for two   quarterly instalments of increased rent  unpaud by the later assignee  of the lease – the  original rent was GBP 17 000  per annum   and the revised rent was GBP 40 000  per annum

due to unfairness to iorignal tenants who had no defaulted     the courts  have tried to limit operation of this principle

fell in house  of lords        gave a limited concession to the original tenants by holding that they were not liable for the   rent left  unpaid   by   a later assignee   of the leas, wehre the term if the lease had been extended   beyond its original ten year term   by a klater assignee

in   friends’ provident    the court of appeal   found that an  poriginal   tebnant was not bound by   later variations   of the lease between landlord   and assignee     unless the variation had   been foreseen  in the terms   of the original lease

in relation to pre 1996 lease the LTCA   now restricts    the right of the landlord    to recover   rent from the original tenant     with warning of his potential liability for an assignee  ‘s breach – a  problem notice –   within six months  of the rent   becoming due

this limits   his potential  liability   to six months   worth of rent   in effect   but note    that the provision  does not apply  to damages  owed   for breaches  of non rent   covenants

but this entitles   the original tenant made liable for the assignees breach to recover leasehold  interers in the land once he has paid   the full amount  powed so in effect he can get very valuable compensation

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LEASES CREATED BEFORE 1 JANUARY    1996 – ASSIGNEES OF LEASE

It is important  to determine   the circumstances   in which persons  other than the original parties  to a lease can sue   or be sued  on convenants   in that lease

in the case of the assignment  of a lease  the rule is that both the benefits    and the burdens   pass if two   conditions are fulfilled

in first place the covenants myst ”touch and concern   the land ” or   ”have reference  to the subject matter   of the lease”

most textbooks contain lists of covenants    that have been held to otuch and concern land or not

hua chiao commerical bank ltd   v   chiaphua  industries ltd  1987

here privy council held that the landlord’s   obligation   to return the tenant’s depost at the extirpation of the lease did not touch   and concern the land

kumar v   dunning  1989 where   CA   that a convenant   by a surety   guaranteeing   the payment   of rent did touch   and concern the land

in swift   investmnets   v combined   englis stores 1989   the house of lords   approved    kumar v   denning   and held that the test to applied was

——————– the covenant benefitted only   the reversioner  for the time being

———————- it affected   the nature, quality, mode  of user or value of the reversioner’s land and

———————- it was not expressed   to be personal

second general requirement is that there must be    privity of   estate between the lessor     and the assignee     of the lease ii e there must be a legal lease

there must be legal assignment      of the whole term

if these conditions are not satisfied the common law rule in spencer’s    case lays down that the benefits and burdens    of covenants    that touch and concern    the land will pass

++++++++++++++++++++++++++++++++++++

LEASES CREATED     BEFORE 1 JANUARY    1996 – ASSIGNEES OF THE REVERSION

by virtue   of LPA 1925    the benefits and burdens   of covenants   having reference   to the subject matter  of the lease   will pass on the assignment   of the reversion  whether the lease i by deed   or not

rickett v green

the assignee  becomes   the only person entitled to sue   even in respect of breaches   of covenant   that occur   before the assignment

re king london county   A and D   ltd   v wilfred   sportsman    ltd

+++++++++++++++++++++++++++

LEASES   CREATED   BEFORE 1 JANUARY   1996 –  SUBLESSEES

 

there is neither privity of contract nor privity  of estate   between a lessor and a sublessee so covenants  in the lease  will not be directly  enforceable  against the sublessee  m si covenants in the lease will not be directly  enforceable   aginst the sublessee  under the rule in spencer’s case

but restricive  covenants may   be enforceavle   under the doctrine   in tulk v    moxhay

if the head lease contains a forfeiture cluase  the lessor can re enter and determine that the lease for breach of covenants  even – iot seems –  for breach  of a covenant   that does not touch   and concern the land

then the sub lease  will come to an end unless the sublessee   can obtain relief

the principles    in this para   also apply   where an equitable lease   has been assigned   or where there has been and equitable    assignemnt of a lease

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POST 1995 LEASES

 

throughout the 1995 act   no distinction   is made between   legal   and equitable   leases and legal   or equitable  assignments

the benefit   and burdern of all covenants    will pass on an assignment  of a lease or reversion   except those expressed   to be personal it no longer matters   whether the covenant   touches and concerns land

 

first penthouse   v channel hotesl and properties

 

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ORIGINAL PARTIES

 

in relation to post 1995 leases   the act release a tenant from the covenant   after he has assinged

the ct provies  a procedure   for the lreases of a labdlord from his covenants after he has assigned     subject to his giving notice  of the assignment to the tenant and the tenant not objecting

the act thus does a long way toeards aboloashing   privity of contract     in this content

the general shme is that when a tenant assings his lease he is re;lased from the covenants subject    to the possibility of the landlord  exracting   an ”authorised  guarnatee   agreement”   . in cases   where a landlord s conseny s needed to an assognement    a landlrod woll try to make him sign an authotised gurantee   agreement    by which he axts as a guarantee     for the perrson t whom he assigns

 

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ASSIGNEES OF THE LEASE AND ASSIGNEES OF THE REVERSION

 

there are v few      conventas which do not run under the 1995 act

the requirement   of ”touching and concerning”   is abolished   so all landlord   convenants   and the tenant covenants  automatically  pass with an assignment  of either   the reversion    of the lease respectively

but in te important case   of BHP petroulem v chsterfifled properties  2002

it was held that    all term agreed     between the original landlord  and tenant pSS automatically   unless a convenant      is qualified   so as to make it persona   with liability   between the original parties

 

on the facts  the covenant   was purely personal   and so was not covered by the 1995 act

so a liability remains   liable for the duration   of the lease in respect       of a personal obligation   on him to repair  the premises

the    procedure   for releasing  landlord from his obligations  cannot apply  to a personal    covenant

but an assignee has no right for liability   in re;lation to pre assignment breaches

 

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SUBLESSEES

the rules about the enforceability   of covenants   against sublessees are unaffected     by the LTCA

 

london diocesan    fund v avonridge  property company ltd   2005  house of lords  there was a term in a sublease   stating    that T would not  be liable   under the sublease’s   covenants  after it after T has disposed   of the property

ST    argyed that this was vid under the LTCA     since it attmeod t avoid the reuirements if the act

house of lords rejected this    argymewnt ev though there was the appearance of a scam

they held the temr eas vlaid

avonridge    caluse allows the orignal landlord to escpe liability  under a lease without having to serve a notice on the tenenat

it both destroys      an essential element   of the act and indidcta  tat house of lords still rgead leases as contraxutla creations