Land Law: BCU LLB

This document provides study material for the Land Law course at BCU LLB. It includes solved assignments and essays on various topics related to Land Law.

Land Law
Land Law: BCU LLB
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Land Law
TABLE OF CONTENTS
Question 1 (A)............................................................................................................................3
Issue........................................................................................................................................3
Legal law................................................................................................................................3
Applicability in the present study..........................................................................................3
Conclusion..............................................................................................................................4
Question 1 (B)............................................................................................................................4
Issue........................................................................................................................................4
Legal law................................................................................................................................4
Applicability in the present study..........................................................................................6
Conclusion..............................................................................................................................6
Question 1 (C)............................................................................................................................6
Issue........................................................................................................................................6
Legal law................................................................................................................................7
Applicability in the present study..........................................................................................7
Conclusion..............................................................................................................................7
Question 2 (A)............................................................................................................................7
Issue........................................................................................................................................7
Legal Law...............................................................................................................................8
Applicability in the present study........................................................................................10
Conclusion............................................................................................................................11
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Land Law
Question 2 (C)..........................................................................................................................12
Issue......................................................................................................................................12
Legal law..............................................................................................................................12
Applicability in the present study........................................................................................14
Conclusion............................................................................................................................15
Question 3................................................................................................................................15
Learning from the above study............................................................................................15
Bibliography.............................................................................................................................17
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Land Law
QUESTION 1 (A)
Issue
The present study contains the issue related to the legal advice on the properties. In the given
problem Mr Khan purchased the two properties, one for the resident purpose and another one
for the investment purpose. After the purchase of properties, Mr Khan found some problem
related with the owner even after advice taken by the solicitor.
Legal law
As per the section 52 of the Land Registration Act 1925, all the document related with
transfer and creating a legal estate must be is written form, which is defined under the law of
property act. Further, as per the Para 1 of schedule 3 of land registration act 2002, legal lease
for a term less than 7 years override registered disposition. Therefore the person can continue
living in the house until the expiration of the lease term1.
Moreover, as per the legal case law of Street v Mountford (1985)2, it was held that lease must
grant exclusive possession of the property for a periodic or the fixed term period. The manner
of right which is granted to lessee plays a very important role in deciding the interest on the
property3. In this case, the agreement which was created between the street and Mountford,
even it is referred as a license, but the court stated that the agreement results in the lease even
if it was called as a license because of the terms and conditions of the defined in the
document.
1Penner, James. (The law of trusts.Oxford University Press), 2016.
2 UKHL 4,, AC 809, 2 WLR 877
3Street v Mountford [1985] AC 809
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Applicability in the present study
In the given study, it is stated that Raj Khan purchased the Holly House as a residence. After
the purchase, Mr Khan came to know that the seller in the last year had leased the house to
Bob. Bob offered Mr. Khan with the document; this document is the lease deed. In the lease
deed, the term of lease period is also defined which is four years, and it is also signed by the
Bob and the seller.
Conclusion
On the basis of the above analysis, it has been concluded that the requirement of section 52 is
fulfilled by Bob, as the deed is in written form and signed by the Bob and seller. The
document contains all the requirement of the valid lease; he has the exclusive possession on
that house; therefore he has the right to use the house until the expiration of the lease term
period4.
QUESTION 1 (B)
Issue
The present issue is related to the doctrine of the constructive trustee.
Legal law
As per the Para 2 of Schedule 3, in the following two situations an interest may become the
overriding interest –
 If the person claimed that the interest is in actual occupation and on the normal
inspection, it was found that occupation is reasonable and obvious.
4Finchett-Maddock, Lucy. Protest, property and the commons: performances of law and resistance. (Routledge,
2016.)
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 If the person claimed that the interest is in actual occupation and the person to whom
the disposition is made has the knowledge of the actual interest5.
However, in both above condition, the actual occupation by the person is must for the
overriding interest. Along with the overriding interest, a constructive trust is an equitable
remedy imposed by the court for protecting the right of the person6. In layman language, the
main objective of the constructive trust is to safeguard the unjust enrichment.
Moreover as per the section 12 of Trust of Land and Appointment of Trustees Act 1996, a
beneficiary who is entitled the possession beneficially interest in the land has right to occupy
the land.
Any person may claim on the equitable interest on the property of another person, if the
person has made the contribution to the purchase price of the property, even if in the legal
title his/her name not stated. In the proportion of the contribution in the purchase price, the
equitable interest is established7.
As per the case law of the Chhokar v Chhokar8, temporary absence from the house is still
regarded as the actual occupation. In the given case, the court held that temporary absence by
Mrs.Chhokar did not make any difference in the actual occupation because her personal
belongings, furniture and so many things were still present in the house9.
5Stone, Richard, and James Devenney. The modern law of contract. (Routledge, 2017)
6Xu, Ting, and Jean Allain. "Introduction: Property and Human Rights in a global context." Property and
Human Rights in a Global Context. 2015.
7Bright, Susan. "Dispossession for arrears: The weight of home in English law." The Idea of Home in Law.
(Routledge, 2016).pp 25-52.
8 [1984] FLR 313
9Chhokar v Chhokar [1984] FLR 313
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Applicability in the present study
In the present study, it has been given that Mr Khan acquired another property, Rose Cottage
for the investment purpose. After the purchase of property, it is found that several things
belonging to another person named as Polly was present in the house. The seller of the
property stated that Polly had left six month previously and due to this he sold the property.
However, Polly told Mr Khan about not any knowledge regarding the sale of property and
already contributed 50% of the purchase price of the cottage therefore actually co-owned the
property.
Conclusion
On the basis of the above analysis, it has been concluded that Polly is the beneficial owner of
the property as she contributed 50% of purchase price. Further by the application of the case
law of Chhokar v Chhokar, it has been concluded that temporary absence from the house did
not make any impact on the actual occupation10. Therefore by applying all the provision,
Polly has an interest in the red Cottage, and it binds the Raj.
QUESTION 1 (C)
Issue
The right of the co-owners on the property is stated in the present study.
Legal law
The act provided various rights to the owner in the form of express and implied right. If the
sale deed clearly describes the rights, then it is referred to as the express right. On the other
hand in case of the implied right, section 62 described the easement for the common
ownership. The easement can be applied if it is necessary and the common intention of the
parties’.
10FLR 313
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Applicability in the present study
In the given study, Rose Cottage is co-owned by the Khan and Polly. Khan, for attracting the
property for future tenants wants to establish the Pizza Oven. As per the provisions of the act,
establishment of the pizza oven is possible only if it is the common intention of the parties.
Conclusion
On the basis of the above analysis, it has been concluded that Raj has to check the deed,
whether any express rights are given in that document. Other than this, if the Polly agreed for
the establishment of the Pizza oven, then raj can restore the pizza oven. Raj is bound by the
terms and conditions of the lease.
QUESTION 2 (A)
Issue
The main issue of the present case is to ascertain the legality of the property named Eastside.
The property is owned by four siblings Ada, Boris, Cora and Dan which has been transferred
by Cora’s grandfather to them. Dan has sold her shares to Giles at the market value. Further,
in January 2016 she was knocked over and slay by tram and a will was made by him under
which, it was written that after her all her property and shares would be given as charity,
BCU Law Alumni. Another joint tenant Boris drafted a deed in which he specified that his
share in the property should be transferred to his girlfriend, Heidi. Thus, the issue is to
ascertain the present legal status of the owner of the property Eastside. Another issue is to
determine whether Cora can prevent the sale of the property as a famous footballer wants to
purchase the Eastside and the legal and equitable ownership of Eastside from when it was
transferred to Stanley to his family members.
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Land Law
Legal Law
Pre-requisite of JT
In order to create pre-requisite for JT, there are four unities which are mandatory, and they
are a possession, interest title and time11. The four unities are discussed below:
 Unity of Possession: With accordance with this unity there is no physical partition and
restriction regarding utilisation of land.12The same implies that every JT can enjoy the
profits earned from the property such as rent.
 Unity of Interest: It states that all JT’s should have an equal interest in property that is
the same extent, nature as well as period13.
 Unity of Title: Under this unity, it is specified that every joint tenant should derive
their title from the same conveyancing document14.
 Unity of time: The occurrence of interest of all JT’s should be at identical in time.
Right of Survivorship
The right of survivorship can be applied in case one JT (Joint tenancy) dies15. However, the
right of survivorship is precedence over any effort to transfer on death, i.e. transfer through a
will.
Severance of Joint Tenancy
With accordance to the subsection 2 of section 36 of Law of Property Act 1925, no severance
of legal estate, so as to establish joint tenancy in common in land, should be allowable
whether by functioning of law or else, but this does not have effect on rights of joint tenant to
11Robert Abbey and Richards Mark. Property Law 2018-2019. (Oxford University Press, 2018).
12 Jackson Paul and Wilde C. David. The reform of property law.(Routledge, 2018).
13 Mark Pawlowski. "Joint owners, severance and the family home." (Family Law 46 2016)Pp 1238-1241.
14 Rebecca Kelly and Hatfield Emma. Land Law: A Problem-based Approach.(Routledge, 2017).
15 Aaron Church. "Joint tenancy, tenant-in-common or separate and distinct." (Equity 32.11 2018)Pp 9.
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liberate his interest to other joint tenants or the right to sever a joint tenancy in a reasonable
interest whether or not the legal estate is vested in joint tenants16. Under a joint tenancy, joint
tenants (JT) has no sole share in equitable share in the land that he could sell, give away or
leave by will. Moreover, JT could sever their equitable joint tenancy and turn it into a tenancy
in common (TIC). Furthermore, severance by only giving a notice in writing to other joint
tenants regarding his intention is unilateral and does not need the approval or agreement of
other joint tenants17. In addition to this, it is also specified that in case one of the JT gets dies
than his interest in joint tenancy automatically transfer to leftover tenants. The same implies
that there is no requirement of formal conveyance or written document in order to reflect the
new status18. Thus, in this situation in case, the interest of JT is divided to the remaining joint
tenants.
Case Law of Kinch v Bullard
In the case of Kinch v Bullard [1998] 4 All ER 650 there was a joint tenancy of matrimonial
home between a married couple Mr and Mrs Johnson. Further, due to some problems, the
procedure of divorce begins. A letter was sent by Mrs Johnson to her husband specifying her
intention to sever and so break the joint tenancy. He was fatally ill and realising the same the
letter was destroyed by Mrs Johnson. After some weeks Mr Johnson died. The perpetrator
desires to determine by the court that whether or not the notice had successfully disconnected
their joint tenancy19. It was embraced by the court that the tenancy had been detached
successfully through the conveyance of letter as well as the notice that tenant desire to break
their interest as granted for by section 36 (2) of LPA 192520. As in the present case, although
16 Barbara Bogusz and Sexton Roger. Complete Land Law: Text, Cases, and Materials. (Oxford University
Press, USA, 2015).
17 Michael Bridge. Personal property law.(OUP Oxford, 2015).
18 Ben McFarlane, Hopkins Nicholas, and Nield Sarah. Land law: text, cases, and materials. (Oxford University
Press, USA, 2015).
19 Wu Hang Tang,. "Equity and trusts." (SAL Ann. Rev. 2015)Pp 450.
20Kinch v Bullard [1998] 4 All ER 650
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the wife does not desire to serve the tenancy at the time of delivery, this cannot make the
notice ineffective. Hence, the letter of severance was stated effective from the when the
notice fell through the letterbox, and it doesn’t matter whether the wife has destroyed the
notice or not once the letter is appropriately served21.
Applicability in the present study
After assessing the facts of the case, it can be accessed that the four unities of Joint tenancy
exist. Thus, the relationship can be specified as Joint tenancy but as soon as the share is
transferred by the joint tenant to another person it is transformed into a tenancy in common
and status of Joint Tenancy does not exist. Further, as Boris transferred the share available to
him to his girlfriend Heidi, i.e. through the form of will. Thus, in this case, the right of
survivorship will be preceded, and the same can be referred with the decision of the case of
Gould v Kemp (1834). It was concluded in the case that a joint tenant is required to create a
deed in order to transfer the share to a specified person when they are alive22. The judgement
can be applied in the present case that as the will was prepared when Boris was alive, thus the
share appropriated with him will be transferred to Heidi. The same can be applied with the
situation of Ada as she also transferred the share after formation of the appropriate deed. In
the present case judgement of Kinch v Bullard can be applied in the case to transfer of
property of Heidi as Boris transferred the same to his girlfriend even though the same was not
received by other joint tenants. Moreover, the letter was sent by Boris but as there was no one
in the office he puts it in the drawer. As specified in the case law it not matters whether the
letter is destroyed or hided once it is served, the same will be considered as effective. Thus,
severance of joint tenancy exists here.
21 Sarah King. Beginning Land Law.(Routledge, 2015).
22Gould v Kemp (1834)
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Conclusion
After having a brief on the above-discussed provisions and case laws relating to the case, it
can be concluded that there is the existence of severance. An equitable title is an authentic
and valuable interest that can take place as JT or JIC, relying on the words utilised to
establish co-ownership in conveyancing document, to accommodate the purpose of parties for
surrounding situations. As the share is transmitted by Boris and Dan with following the legal
procedure that is through doing an appropriate deed, the legally co-tenants are Cora, Ada,
Heidi and BCU law Alumni. Moreover, it is to be considered that no one can force the owner
to sell their property. In case Ada is forced by the footballer than the case can be filed
regarding it. The same implies that Cora can prevent its property from selling since the
footballer cannot force her and Ada to sell their Eastside. For preventing the same Ada can
file a petition against the sale of the property in which she held to share, and the option which
will be available to her will be purchasing the whole property rather than making it available
to be sold to some other person. Moreover in case Ada is having financial issue in purchasing
the whole property than she cannot prevent the sale as it was concluded in judgement of case
law Borg v Morris 2012 BCSC 554 that competing hardship in acquiring home in financial
terms is no good reason for preventing sale of property and thus order was made to sale of the
property.
QUESTION 2 (C)
Issue
In the given study issue regarding the covenant is described such as whether the covenant is
applicable only on the original owner of the property even after the property has parted or it
continues applicable on the selling of the property to another person.
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Land Law
Legal law
Covenant refers as the law or rules which governs the provisions of what can or cannot be
done on the land which is impacted by the covenant23. Generally, the covenant is imposed by
the seller of the property when the seller resides near the property which is sold by him/her
for retaining some control over the property.
The covenant may be a positive covenant or the negative covenant. Negative covenant is
known as a restrictive covenant. Positive covenant refers to the duty to do something such as
making the contribution for the maintenance24. On the other hand, the negative covenant leads
to restriction of something on the property such as use the property only for the commercial
purpose and so on. Enforceability of the covenant depends on the type of the covenant
whether it is positive or restrictive25.
Covenant is generally stipulated in the transfer of property documents from a seller of the
property to the purchaser of the property26. Specifically, it is applied by the builder of the land
at the time of construction of the property or by the seller who is selling a part of the property
and retains some part of the property. Further, it may be prepared at the separate deed of
covenant, which is safeguarded by the putting on the register of title.
Covenant is mainly the contract between the owner of the burdened land and the owner of the
land who gets the benefit. Owner of the burdened land is referred to as the covenanter, and
the owner of the land which gets the benefits is known as covenantee27. The covenant is
applicable only between the original covenanter and the covenantee because as per the privity
23Williams, Richard H., and Barry Wood. Urban land and property markets in the United Kingdom.Vol. 23.
(Routledge, 2018).
24Kelly, Rebecca, and Emma Hatfield. Land Law: A Problem-based Approach.(Routledge, 2017).
25Patel, Arti. "Restrictive covenants on land: Common examples of restrictive covenants and the challenges of
dealing with them on freehold land." Journal of Building Survey, Appraisal & Valuation 5.1 (2016) pp 70-80.
26Duncan, William D., et al. "Property Law Review-Issues Paper 6: Property Law Act 1974 PLA Part 1-4, Part 6
(Deeds) and Part 20 (Notices)." (2016).
27Bevan, Chris. "The doctrine of benefit and burden: reforming the law of covenants and the numerusclausus
“problem”." The Cambridge Law Journal 77.1 (2018)pp 72-96.
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of the contract, a contract cannot make the imposition of any right and duty to the third party
who is not part of the contract. This legal principle is applicable even after one or both the
party separated from the land. However for the enforceability of the covenant even after the
original parties separated with the land involved, norms under the common law or the equity
law are defined under the act, which is prescribed as below –
 Implementation of the covenant as per the common law – the benefit arising out by
the covenant must be for any owner. It should not be for the personal benefit of the
present owner. Further, the owner who gets the benefit must actually own the land at
the time when the covenant prepared. The intention of the parties also plays an
important role for the enforceability of the covenant, as some covenant is only for the
personal purpose. The intention is determined by the wordings of the document.
Along with the above conditions, the future owner must be the legal owner of the
land28. Moreover, as per the legal case law, Austerberry v Oldham corporation (1885),
the future owner of the burdened land will not be bound by the convent if the convent
is not enforceable as per the common law, but the original owner will remain
obligated even after he has separated with the land29.
 Implementation of the covenant as per equity – for enforceability of covenant under
equity, it must be negative. The burdened and the benefitted land must be close
together, which really impact the benefited land by the breach30. Further, the intention
of the original parties for the burden run with the land, as the changes in the
surrounding circumstances leads to ceasing the benefit of the covenant. As per the
section 79(1) of the law of property act 1925, unless any contrary provision given in
28Walsh, Emily. Obsolete restrictive covenants: a socio-legal analysis of the problem and solutions. (Diss.
University of Portsmouth, 2016).
29 Austerberry v Corporation of Oldham (1885) 29 Ch.D. 750
30Blandy, Sarah, Susan Bright, and Sarah Nield."The dynamics of enduring property relationships in land." The
Modern Law Review 81.1 (2018)pp 85-113.
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the covenant, it is assumed that the burden was intended to run. Moreover, before the
purchase of the property, the buyer must have notice of the covenant31.
Apart from all the above analysis, both the benefit and the burden must apply either as per the
equity law or as per the common law. If the benefit runs under the common law and the
burden run under the equity law, then the covenant will not be enforceable.
Applicability in the present study
In the given study, Shappi purchased the land from Toff in 2015. The property comprises
with many of land, in 2010 some of the parts of property sold to Dennis by Toff. At the time
of sale of the property to Dennis, covenant contains restrictive as well as positive terms and
conditions. Further, Dennis sold land to Ian and after that Ian breaches the covenant terms.
Since the land of the Shappi situated near the land of the Ian, and in the absence of any
express wordings, it has been assumed that burden was intended to run.
Conclusion
One of the provisions of the covenant is that the property must use for the residential purpose
only. As per the privity of the contract principle, the third party is not responsible for any
obligation made by the contracted parties. However in case of the covenant, by application of
the enforceability of the covenant as per the common law, it has been concluded that
covenant made between the Dennis and Toff, will be applicable on the Ian. Therefore Shappi
can stop Ian for repairing and selling the car from the land. Another condition regarding the
covenant is for maintenance of the wall. Since all the conditions stated above for the
enforceability of the covenant under the common law satisfied, therefore it is possible to
force Ian to repair the wall. The last condition stated in the covenant is for payment of
contribution towards the maintenance of the shared track which provides access to both his
and snake creek farm. The owner of the property has the responsibility towards the
31Ramaekers, Eveline. "What is Property Law?." Oxford Journal of Legal Studies 37.3 (2017): pp588-617.
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contribution for the shared facilities. Therefore Ian has to contribute to the repairs of the
shared drive.
QUESTION 3
Learning from the above study
On the basis of the above study, I have learned about various legal principles related to
property law, which is very useful for the enhancement of my future career. I learned that all
the documents related to the transfer of property must be in written form, which leads to the
safeguarding the interest of the first registered person. Along with this, I also learned about
the norms related to the lease, disposition of the property and overriding interest on the
property. The land registration act also contains the provision of the doctrine of constructive
trust, on the basis of this clause, I understand that no one can get the benefit on the cost of
another person. This is very important for the protection of any person from the unjust
enrichment. Apart from the above, if any person has contributed in the purchase price of the
property, then even if legal title is not stated on his own name, then also he/she considered as
the co-owner of the property to the extent of the share of contribution. The easement on the
property is applied only if both the co-owner agreed, or by the implied and expressed grant.
I also gained knowledge about the essential element for the creation of the joint tenancy,
rights of the joint tenants, termination of the joint tenancy. Along with this, the covenant is
very important to document which is prepared at the time of sale of the property. Generally,
this document is applicable only on the original owner of the property. However the law
prescribed some terms and conditions in which covenant will be applicable for the future
owner of the property also.
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Land Law
BIBLIOGRAPHY
Abbey R. and Mark R. Property Law 2018-2019. (Oxford University Press, 2018).
Austerberry v Corporation of Oldham (1885) 29 Ch.D. 750
Bevan, C. "The doctrine of benefit and burden: reforming the law of covenants and the
numerusclausus “problem”." The Cambridge Law Journal 77.1 (2018)pp 72-96.
Blandy, S, Bright,S. andNield, S. "The dynamics of enduring property relationships in
land." The Modern Law Review 81.1 (2018)pp 85-113.
Bogusz B. and Roger S. Complete Land Law: Text, Cases, and Materials. (Oxford University
Press, USA, 2015).
Bridge M. Personal property law.(OUP Oxford, 2015).
Bright, Susan. "Dispossession for arrears: The weight of home in English law." The Idea of
Home in Law.(Routledge, 2016).pp 25-52.
Chhokar v Chhokar [1984] FLR 313
Church A. "Joint tenancy, tenant-in-common or separate and distinct." (Equity 32.11 2018)Pp
9.
Duncan, W. D., et al. "Property Law Review-Issues Paper 6: Property Law Act 1974 PLA
Part 1-4, Part 6 (Deeds) and Part 20 (Notices)." (2016).
Gould v Kemp (1834)
Jackson P. and David C., W. The reform of property law.(Routledge, 2018).
James, P. The law of trusts.(Oxford University Press, 2016).
Kelly R. and Emma H. Land Law: A Problem-based Approach. (Routledge, 2017).
Kelly, R., and Hatfield, E. Land Law: A Problem-based Approach. (Routledge, 2017).
Kinch v Bullard [1998] 4 All ER 650
King S. Beginning Land Law.(Routledge, 2015).
Lucy, F. Protest, property and the commons: performances of law and resistance.
(Routledge, 2016.)
McFarlane B., Nicholas H., and Sarah N. Land law: text, cases, and materials. (Oxford
University Press, USA, 2015).
Patel, A. "Restrictive covenants on land: Common examples of restrictive covenants and the
challenges of dealing with them on freehold land." Journal of Building Survey, Appraisal &
Valuation 5.1 (2016) pp 70-80.
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Land Law
Pawlowski M. "Joint owners, severance and the family home." (Family Law 46 2016)Pp
1238-1241.
Ramaekers, E. "What is Property Law?." Oxford Journal of Legal Studies 37.3 (2017):
pp588-617.
Richard, S. and Devenney. J,. The modern law of contract.(Routledge, 2017).
Simon, C., and Lees, E. "Interests, powers and mere equities in modern land law." Oxford
Journal of Legal Studies37.2 (2017): pp435-460.
Street v Mountford [1985] AC 809
Tang H. W. "Equity and trusts." (SAL Ann. Rev. 2015)Pp 450.
Ting, X. and Allain, J. "Introduction: Property and Human Rights in a global
context." Property and Human Rights in a Global Context. 2015.
Walsh, E.. Obsolete restrictive covenants: a socio-legal analysis of the problem and
solutions. Diss. University of Portsmouth, 2016.
Williams, R. H., and Wood, B. Urban land and property markets in the United Kingdom.
Vol. 23.(Routledge, 2018).
18