A Critical Analysis of the Relationship between Public and Private Interests

This assignment content consists of various articles and books related to law and property rights. The articles cover topics such as privacy-enhanced attribute-based credential systems for online social networks, proprietary estoppel, vendor purchaser constructive trusts, overheating investigation in UK social housing flats built to the Passivhaus standard, museum collections, and trust law. The books discussed include 'Cheshire and Burn's Modern Law of Real Property', 'The Law of Trusts', and 'The Law-Making Process'.

LAND LAW

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Main Body.......................................................................................................................................3
Conclusion.....................................................................................................................................11
Bibliography..................................................................................................................................12
2

INTRODUCTION
Law basically refers to as the separate discipline which is regulated by the government.
Law consists of a system of rules and regulations which a particular country acknowledges and it
is enforced by the imposition of penalties. Law has been recognized in every aspects and in this
report, major focus has been done on the “Land Law”. This law can be defined as the rules and
regulations of the land which is governed by the government of country. Land may include the
land of any tenure, mines and minerals 1. Moreover, it encompasses a number of things, beyond
the earth itself that can be fixtures and easements. This report consist of the discussion about the
land law and the issues arise out of it. Moreover, description has been made on the constructive
trust, actual occupation and Proprietary Estoppel. Further, necessary legislations have been
included along with the real case examples.
MAIN BODY
In the given case, there are two brothers, George and Tony who planned to acquire a new
house together. George would be able to pay the deposit thus, he registered the house on his
name and entered into a mortgage agreement with Stone Building Society. The house had two
room, one shared room, one kitchen and one bathroom. Tony who was a painter and decorator by
profession, started repairing the house whenever he get the time and he paid expenses of all the
repairs and decoration out of his own pocket 2. Moreover, the expenses of power bills, water bills
and food were distributed equally among both the brothers and if Tony had any spare cash at the
end of month, he handed over it to the George for the payment to the Building Society. After
some time, Tony was employed by a local painting and decorating company as a result his
monthly income got increased. Accordingly, he started paying half of the monthly mortgage
along with the George.
Three years later, George acquired another mortgage on this first property and didn't
informed Tony about the fact. He acquired loan from Kwig Kash Loans because he wanted to
1
Burn, Edward Hector, and John Cartwright. Cheshire and Burn's Modern law of real
property. (Oxford University Press 2011).
2 Pearce Robert. (Defending An Englishman's Castle” Can I Sell My House But Continue
Living In It? The North-East Property Buyers Litigation [2015] The Denning Law
Journal. 27. 178-203.
3

invest money into his friend's business. Kwig Kash Loans were unaware about the stay of Tony
in the property. Unfortunately, the friend of George disappeared with all the money that George
and other investors have invested in it. Consequently, George was unable to pay the mortgage
installments to Kwig Kash and the loan company seeks the possession of the house. Now, this
report is required that advice to Tony has to be made.
Co-ownership tenancy in common: Co-ownership basically refers to as the two or more people
who simultaneously enjoy the rights and responsibilities of ownership over a piece of land which
may be either freehold property of leasehold property. There are mainly two types of co-
ownership that are joint tenancy and tenancy in common. In this case, co-ownership tenancy in
common has been identified3. Thus, co-ownership tenancy in common is basically termed as that
only possession is required and each tenant has a separate share of the property and that can be
disposed of during their lifetime or when they die. Moreover, constructive trust has been formed
as a result of co-ownership between two brothers as per the given case. Constructive trust is not
an actual trust but it is a legal fiction which is used as a remedy for the unjust enrichment.
Moreover, it can also be explained that this trust does not arise out of the expressed intent of a
settlor, however, it is created by a court whenever property's title is held by a person who is not
permitted to retain it. Constructive trust is also known as resulting trust because it is the creation
of an implied trust by operation of law in which property is transferred to a person who pays
nothing for it and then, it is implied to hold the property for the advantage of another person4.
There is a huge difference between express and resulting trust that constructive trust is
not always subject to the requirement of certainty of subject matter whereas, the express trust is
not. The Co-ownership tenancy in common can be explained by taking the support of the range
of cases such as Gissing v Gissing (1971), in which ownership of the house was shared by two
husband and wife. Moreover, in the given case, Tony and George held the co-ownership tenancy
in common because both have separate share of the property and they share equal amount for all
the expenses. Although, initially the installments of mortgage were paid by the George only, but
after some time, both started paying off the equal amount so both of them have equal rights of
3 Lee Rosa. Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a
Unifying Approach. [2015] King's Student L. Rev. 6.
4 Televantos Andreas and Lorenzo Maniscalco. Proprietary Estoppel And Vendor
Purchaser Constructive Trusts. [2015] The Cambridge Law Journal 74(01) 27-30.
4

ownership on the house 5. With the reference of the case Pettit v Pettit (1970), in which wife
purchased house at the time of marriage and thus, it has registered the house on her name.
Moreover, after the separation, husband seeks the beneficial interest in the proceeds of sale
because he has done many repair and decorative works in the house. With this reference, the
current case can be supported because in such case, the presumption of advancement is also lied.
Although, Tony has not paid any amount or has spent any money on the house but as per the
English trusts law, Tony is entitled for the ownership of house. It is because of the presumption
of advancement which means that legal presumption which arises in several common law
jurisdiction in relation to the transfers of money or other property.
At the time, when George mortgage his property to the Kwig Kash Loan, he hide the fact
from Tony about the mortgage and also it hide form Kwig Kash Loan about the existence of
Tony in the house. When, he was unable to pay the installments amount, Kwig Kash sought the
acquisition of the house and Tony was unaware about this. Moreover, the company was also not
aware. At the time when the loan company will acquire the house than Tony has to to leave the
house too along with the George. But Tony was not at fault so he can get remedy against the
constructive trust by the English Law 6.
Actual Occupation: Whether a person is in actual occupation of registered land pursuant to the
Land Registration Act 2002 and so had an overriding interest which would defeat a claim of
lender for the possession. As per the English Law, any of the party can initially occupy the house
but at last all the owners who have tenancy in common have the actual occupation of the land.
With the reference of Link Lending Ltd v Bustard (2010), it can be argued that Mrs Hussein took
the benefit out of the Ms Bustard's mental handicap and transferred the house on her name. Mrs
Hussein took loan from bank by keeping the property on mortgage and defaulted the
installments. Bank claimed the possession but Bustard argued that she is actual occupation under
LRA 2002 because Ms Susan was unaware about the fact. Judgment was taken in her support
that she moved to hospital with an intention to return back home and thus, she is having the
5 Palomar Esther and et al. Implementing a privacy-enhanced attribute-based credential
system for online social networks with co-ownership management. (IET Information
Security, 2015).
6 Ulph Janet. Dealing with UK Museum Collections: Law, Ethics and the Public/Private
Divide. [2015] International Journal of Cultural Property. 22.2-3 177-204.

actual occupation of that house. This is turn indicates that, bank could not acquire the house
because the person who is having actual occupation are residing at home. The given case can be
supported by this real case that is George was paying the amount of installments and Tony was
only doing the decoration work 7. Under English Law, the repair work is not considered as the
expenses made for the possession of house. But Tony was residing thus, it can be said that Tony
is in the actual possession of the house because it is a co-ownership of tenancy. When the George
put the property on lease for taking loan for the investment purpose, he did not clarify the fact to
the Tony that he had put the property on Mortgage. Moreover, Kwig Kash Loan was also
unaware about the existence of the Tony in that house. On the same time, George's friend ran
away by taking all the investing money. Due to which, George failed to pay the installments to
the loan company and as a result, firm sought the possession of the house. But in that house Tony
was also living and he was in the actual occupation of that flat. Thus, both the parties were
unaware about the fact and they both were innocent. George who was a defendant has to leave
the house and his actual occupation did not lies. While, Tony can claim for the house because he
is having actual occupation in the home. Moreover, under the section 70(1)(g) of the Land
Registration Act 1925, he was in actual occupation even though George name was registered for
the property because Tony is having an overriding interest in the property.
This case can also be supported by the Williams & Glyn's Bank v Boland [1980]. in this
case, husband and wife were residing in the house and the property were registered under
husband's name 8. The husband took loan form the bank and failed to repay that loan due to
which bank sought the possession of the house on which the loan was passed. But the wife Mrs
Boland claimed for the actual occupation of the home but bank denied to provide her the right of
actual occupation. Further, the High Court did not took the decision in her favour and she lost the
case. After that, the Court of Appeal gave the clear and correct decision which explained that she
was having the actual occupation under the act of Land Registration Act, 1925 which explains
7 Sameni, Seyed Masoud Tabatabaei, et al. Overheating investigation in UK social
housing flats built to the Passivhaus standard. [2015] Building and Environment. 92.
222-235.
8 Hofri-Winogradow AS. The stripping of the trust: A study in legal evolution.
(University of Toronto Law Journal, 2015)

that she had and overriding interest in the property 9. Court explained that wife is certainly in the
actual occupation, even though her husband owned and occupied the property.
Proprietary Estoppel: Proprietary estoppel can be defined as legal doctrine in English law. In
accordance with this doctrine, in certain situations individuals are prevented from relying on
their certain rights and authorities. By considering this aspect in land law, it can be stated that
equitable proprietary interest can be created informally through the resulting or constructive
trust. It is because, this kind of trust is considered significant in the context of cohabitation.
Doctrine of proprietary estoppel provides right or authority to the individual despite of the
absence of appropriate formalities and express intention. For this aspect case of Willmott v
Barber (1980) can be considered10. This case is cited for the holding of rights regarding the
applicability of doctrine of estoppel in the case scenario.
Contribution of proprietary estoppel is self-evident as it forms informal interest on land in
situation where an individual had acted detrimentally by relying on the oral assurance that they
have such interest. However, oral grants are not sufficient but reliance of such statements will
validate the facts which is ineffective as per Property Act. In accordance with the case of Gillet v
Holt (2001), Gillett is entitled for the share of property even if there is oral assurance that “all
this will be yours” stated by Mr. Hold. In this case decision fundamental principle was applied
which states that equity is concerned to prevent unconscionable conduct pervade all the facts of
this doctrine11.
Claim of proprietary estoppel cannot be considered as remedy. It is because, remedy is
awarded in situation where claimant can demonstrate their entitlement through the way of
estoppel. This doctrine is in position to act as a shield in order to protect a person for the
assertion of rights and authorities 12. For the successful claim of proprietary estoppel mainly there
9 Lafuente Sánchez R. Testamentary trusts in English Law: an introductory approach.
(Cuadernos de derecho transnacional 2015)
10 Chowdhury, Saifur Rahman. "Whether or Not the Law Relating to Modern Trustees’
Power and Duties have Achieved a Balance between Managing the Trust Assets and
Protecting the Interest of the Beneficiaries: A Critical Analysis.[2015] Mediterranean
Journal of Social Sciences. 386.
11 Whitehouse, Lisa. The First Legal Mortgagor: a Consumer Without Adequate
Protection? [2015] Journal of Consumer Policy. 38.2 161-180.
12 Zander Michael. The law-making process. (Bloomsbury Publishing 2015)

are two stages i.e. establishment of equity and satisfaction of equity through the appropriate
remedy.
Equity can be established by claimant by demonstrating cause of action. This aspect
shows presence of promissory estoppel. Modern English cases shows that three factors are
required for the purpose of establishing proprietary estoppel i.e. assurance, reliance and change
of position or detriment. In accordance with the case of Ramsden v Dyson (1866), claimant had
mistakenly believed that he will have right on the property of defendant and had acted by relying
on that fact 13. Defendant was aware of this mistaken but he had not clarified his mistake due to
which claim of equity was held successful by court of law. In the case of J Willis & Son v Willis
[1986] 1 EGLR 62, court of law had stated that equity is said to present if it is supported by
justified facts. In accordance with the case of Thorner v Major (2009), claim of claimant for
relief was not considered by court of law because there was absence of unequivocal assurance.
After the establishment of equity, claimant is prima facie entitled for the remedial relief.
However, establishment of equity will not be considered for the predetermination of remedial
response as court will decide the specific remedy on the basis of the circumstances. Case facts of
Southwell v Blackburn (2014) shows that appellant is required to pay damages in accordance
with the equitable interest in a property. Court of relief is entitled to determine the damages
which may vary as per the original interest of parties.
By considering the present case situation, it can be noticed that Tony had believed on the
fact that he has interest in the property. Further, by relying on this fact he had reimbursed the
expenses in good faith. On the basis of this factor it can be stated that provisions of proprietary
estoppel will be applied in this case for the relief of Tony. For this aspect case of Yaxley v Gotts
[2000] can be considered 14. It is an English legal case according to which section 2 of the Law
of Property (Miscellaneous Provisions) Act 1989 is applied which states that contracts be in
writing prevents an oral contract from taking effect where otherwise an interest would arise by
proprietary estoppel. In accordance with the case of Crabb v Arun District Council (1975),
agreements concerned with the acquisition of land do not require consideration for the upholding
13 Morrison Sean. Public Trust or Equal Footing: A Historical Look at Public Use Rights
in American Waters. [2015]. Hastings W.-Nw. J. Envt'l L. & Pol'y. PL 69.
14 Thomas, Geraint, and Alastair Hudson. The law of trusts. (Oxford University Press
2010)

a bargain. In situation where provision of promissory estoppel is effective that consideration is
not necessary at all 15. On the basis of case facts, requirements of consideration will not be
effective for the determination of upholding of right.
Key and necessary Legislation: There are various acts and laws which supports the Land Law in
England and Wales. These legislation are supported by various acts which so that innocent party
can be provided with the remedy. In order to safeguard the interest of tenants, government of UK
or primarily the Parliament of UK have passed several acts such as Trusts of Land and
Appointment of Trustees Act 1996 which is basically known as the TOLATA 1996. This Act
came into force on January 1 1996 and it was a result of a recognized need for reform in the part
of the Law of Property Act 1925 which is mainly dealing with the trusts 16. Secondly, Law of
Property (Miscellaneous Provisions Act 1989) is the act which make new provisions with respect
to deeds and its execution and contracts for sale or other disposition of interest in land, and to
abolish the rule of law. In this act a deed is signed by an individual in the presence of one
witness who will do the attestation part. It also states that contracts for sale or other disposition
of an interest in land should be made in a written format. All these must be incorporated in an
agreed terms in one document.
There are several rights of mortgagor and mortgagee and in this case mortgagor is Kwig
Kash Loan which has the right for the purchase of a house and they mortgages the property as a
security against the loan which have been granted 17. There are several rights of this company
that it should receive the mortgage deed and possession, the institute should take the transfer of
property. Moreover, the the loan firm can file the suit against the mortgagee at the time violation
of law or conditions. The firm have the right to redeem the property. It also has the right to
inspect in which banks or financial institutes can inspect about all the documents and make as
many copies as they want. However, against these rights mortgagor has to bear all the cost which
arises out of this mortgage process.
15 Burn, Edward Hector, and John Cartwright. Cheshire and Burn's Modern law of real
property. (Oxford University Press 2011).
16 Pearce Robert. (Defending An Englishman's Castle” Can I Sell My House But Continue
Living In It? The North-East Property Buyers Litigation [2015] The Denning Law
Journal. 27. 178-203.
17 Televantos Andreas and Lorenzo Maniscalco. Proprietary Estoppel And Vendor
Purchaser Constructive Trusts. [2015] The Cambridge Law Journal 74(01) 27-30.

In a similar manner mortgagee also has some rights and in this case, George have several
right to sue the Kwig Kash Loan in case of any violation of law by them. If there is any harm
caused by the company to the property than the party can do the default in payment of loan.
Moreover, if the firm failed to deliver the possession, he can sue the company. However, in case
of loss of property, George have the power of sale without the intervention of court 18.
Advice to Tony: By considering all the facts which are falling under the Land Law have been
discussed above the following advice can be made to the Tony who were residing with this
brother George in the house. This house were registered on the name of George and he
mortgaged the property to the Loan company and took the loan for the investment purpose. He
hid this fact form the Tony and also hid about the residents of Tony in that house. Even though
the name was not registered on Tony's name and also he was not paying the amount for the
mortgaged installments but he was having the co-ownership in that house. That is why he was
the part of that house. Moreover, when the George was unable to pay out the installments for the
loan the Loan, company sought the possession of that house but Tony was already living in that
home. Thus there are range of advice which can be made to tony so that he can defend his right
of ownership against the loan company and retain his residence. Some of the suggestions are as
follows:
 Tony should firstly made the company understand about the fact that they both have been
cheated by his brother George and then he could claim for his right.
 Moreover, if the bank throws him out forcefully than only he could sue the bank and can
claim for the ownership of the house.
 Further, under the co-ownership tenancy of common he can claim that even though the
house was not registered under his name and he was not paying any amount for the
installments but with the support of cases Pettit v Pettit (1970), Caunce v Caunce (1968),
etc. he is liable for the house ownership.
 It has been explained above that co-ownership in case of tenancy in common all the
members residing in the house have separate share of land and thus they are the owners
18 Palomar Esther and et al. implementing a privacy-enhanced attribute-based credential
system for online social networks with co-ownership management. (IET Information
Security, 2015).

of the home till their death. Thus, Tony and George were having the ownership of
tenancy in common and due to which Tony cannot leave the house because he is still the
owner of the house and the house was leased without his knowledge.
 Similarly, there is one more term in the Land Law that is "Actual Occupation”. This term
has been described above and it states that under the act of Land Registration act 2002,
person has an overriding interest which would defeat a claim of lender for possession.
Thus it can prevent the Loan company to take the possession of the house in the presence
of Tony. Thus, Tony has an advantage that he could not let the company enter his house
because he has an actual occupation in that home.
 Moreover, the prosperity estoppel also supports the Tony against the loan company. The
firm cannot take him out form the house as he is having the doctrine of proprietary
estoppel.
 There are various laws and regulations which have been listed under the Land Law are in
the favor of innocent party and thus, Tony can claim or sue against the George and loan
company.
CONCLUSION
After preparing this report, it can be concluded that law has been applied in every aspect.
Similarly, law has been bound in the case of Land also that is Land Law. Moreover, in the given
case, the house has been acquired by two brothers and out of them one brother was cheated by
the one and due to which their house was possessed by the loan company. But under several
defense in the Land Law, the innocent party can be provided remedy. Under the constructive
trust, actual occupation, proprietary estoppel and several legislation, he can defend themselves
and file the suit against the loan company that is Kwig Kash Loan.

BIBLIOGRAPHY
Burn EH, Cartwright J. Cheshire and Burn's Modern law of real property. (Oxford University
Press 2011).
Chowdhury SR. "Whether or Not the Law Relating to Modern Trustees’ Power and Duties have
Achieved a Balance between Managing the Trust Assets and Protecting the Interest of
the Beneficiaries: A Critical Analysis.[2015] Mediterranean Journal of Social Sciences.
386.
Hofri-Winogradow, Adam S. The stripping of the trust: A study in legal evolution. (University of
Toronto Law Journal, 2015)
Lafuente Sánchez, Raúl. Testamentary trusts in English Law: an introductory approach.
(Cuadernos de derecho transnacional 2015)
Lee R. Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a Unifying
Approach. [2015] King's Student L. Rev. 6.
Lee R.Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a Unifying
Approach. [2015] King's Student L. Rev. 6.
Morrison S. Public Trust or Equal Footing: A Historical Look at Public Use Rights in American
Waters. Hastings W.-Nw. J. Envt'l L. & Pol'y. 2015;21:69.
Palomar E, González-Manzano L, Alcaide A, Galán Á. Implementing a privacy-enhanced
attribute-based credential system for online social networks with co-ownership
management. (IET Information Security, 2015).
Pearce R. (DEFENDING AN ENGLISHMAN'S CASTLE” CAN I SELL MY HOUSE BUT
CONTINUE LIVING IN IT? THE NORTH-EAST PROPERTY BUYERS
LITIGATION [2015] The Denning Law Journal. 27. 178-203.
Sameni SM, Gaterell M, Montazami A, Ahmed A. Overheating investigation in UK social
housing flats built to the Passivhaus standard. [2015] Building and Environment. 92.
222-235.
Televantos A, Maniscalco L.PROPRIETARY ESTOPPEL AND VENDOR PURCHASER
CONSTRUCTIVE TRUSTS. [2015] The Cambridge Law Journal 74(01) 27-30.
Thomas G and Hudson A. The law of trusts. (Oxford University Press 2010)

Ulph J. Dealing with UK Museum Collections: Law, Ethics and the Public/Private Divide.
[2015] International Journal of Cultural Property. 22.2-3 177-204.
Whitehouse L. The First Legal Mortgagor: a Consumer Without Adequate Protection? [2015]
Journal of Consumer Policy. 38.2 161-180.
Zander M. The law-making process. (Bloomsbury Publishing 2015)
13