Case law analysis - Advice Martin On Whether He Has Any Rights, Which Are Enforceable Against Midlays Bank? Is The Arrangement With Des Enforceable Against Samantha And Chris?

Firstly it must be considered whether or not there was an express trust that has been created between them. Under s.53 (1) of LPA 1925 an express trust is enforceable only if manifested and proved by some writing signed by the declarant and also under s. 52 of LPA 1925 is required that any conveyance in land must be made by deed, otherwise is unenforceable. Furthermore in the absence of writing a trust does not come into being merely gratuitous intention to transfer or create a beneficial interest according with the case of Austin v Keele (5). The failure of documentary formality brings about a merely voluntary declaration of trust unenforceable for want of writing, (Gissing v Gissing) (6). In this case Gail made a deed to Martin for sharing the 50% of the house, which means that an expressed trust was created. Also an express trust in order to be valid must satisfy the ‘three certainties’ as established in the case of Knight v knight (7). Firstly the certainty of words that is, the intention to create a trust and in that case there was an intention cause there was a deed that created, in contrast with the case of Comiskey v Bowring- Hanbury (8) in which was held that an intention in mind was void. Secondly must satisfy the certainty of the subject matter that is, the property and the interest must be sufficiently precise so as to be ascertainable, in this case Gail has clearly expressed Martin’s interest that would have the 50% of the property, the house. And the last one is the certainty of objects that is, the person who intended to have benefit from the trust must be ascertain. In the case of Brown v Gould (9) the trust was void because included the words ‘for all my old friends’. But in that case the person who is benefited by the trust is clearly indicated that it is Martin. So at this point must be said that an express trust was established and thus Martin has a beneficial interest under the property sharing the 50% of the house while Gail is the trustee who holds the legal ownership of the house.

Secondly the other legal issue that must be considered is whether or not Martin is bound by the second mortgage that Gail has taken while he was totally unaware of this and also was absent at this time.

It is well established that Martin has a beneficial interest upon the house, cause there was an express deed, and this means that he has a right under

s. 12 of Tolata 1996 to occupy the land. Since the Tolata is now in force any beneficial interest lies in land. Nevertheless the trustees may still sell the land so that any purchaser overreaches the beneficiary’s interests in the land provided that he pays the money in two trustees under s. 27 of the LPA 1925, and the purchaser is not then concerned with the trust. But in this case the overreaching principle is difficult to take place because Gail is the sole and trustee and the Bank cannot overreaches Martin’s interest that is, the statutory conditions of s.2 of LPA 1925 cannot be met. This difficulty of not imposing the overreaching principle brings now the Midlays Bank to be subject to Martin’s interest on either of two situations: the first one is either Martin has registered his interest as a minor interest or he can claim that he has an overriding interest under s.70 (1)(g) of PLA 1925.

As far as the minor interest there is no evidence of registration cause was never registered in any way that is, Martin has not protected his equitable ownership in this way. This means that the Midlays Bank cannot claim that Martin has a minor interest in the property. This leaves us with the overriding principle under s. 70(1)(g) of LPA 1925, as applied in the Williams and Glyn’s Bank Ltd v Boland (10) case. In this case was stated that ‘ it is the fact of occupation that matters’ and what is required is physical presence on the land and not some entitlement in the law. The words physical presence is translated into actual occupation according with the case of Malory Enterprises Ltd v Cheshire Homes (11). In which was stated that residence is not required but there must be some physical presence with some degree of permanence and continuity. Martin has established this physical presence with the degree of permanence and continuity cause firstly he moves in with her and secondly they got married. The marriage seems to be a permanent and continuous physical presence in the house. But now Martin has to establish that he was in the actual occupation of the house regardless he was away from the house for three months training course. According with the case of Chhokar v Chhokar (12), the Court of Appeal held that the wife, who was in hospital at the day of the completion of the sale of property, has an overriding interest as she was in occupation on that date and her equitable ownership bound the purchaser. Also was stated that going to the hospital for a few days could not be regarded as going out of occupation any more than if occupier has gone on a weekend visit to a friend or indeed gone out shopping for a few hours. This means that Martin was in actual occupation of the house, regardless his absent at the date when Gail has taken out the second mortgage.

Furthermore another issue that Martin must satisfy in order to establish the overriding interest is that he was in actual occupation at the relevant time that is, the crucial moment that the mortgage was created. According with the case of Abbey National Building Society v Cann (13) in which was stated that the claimant must show that he was in actual occupation at the date of transfer, and Martin was in actual occupation of the house, as it was established above, at the date of the mortgage. So Martin now can establish that he has an overriding interest against Midlays Bank under s.70 (1)(g) of LPA 1925 and so takes priority over them. The Midlays Bank cannot obtain vacant possession as normally and must apply to the court under s.14 of Tolata 1996 for an order of sale. If it is granted again they are unlikely to recover their money in full because Martin’s interest takes priority and he must be first paid out. The Midlays Bank can pursue Gail for the mortgage and made her bankrupt.

• Is The Arrangement With Des Enforceable Against Samantha And Chris?

Gail is dismayed that one of her neighbours Des has built an extension that interferes with the amount of light that comes into her kitchen. Then they agreed but nothing was written down that Gail would not take any action and she is allowed to place her satellite dish on Des’s chimney. Then Des sold his house to Samantha and Chris, who knew about the dish arrangement but now they demand from Gail to remove the satellite dish.

From the moment that nothing was written down about this arrangement, it must be considered whether or not a license can become a legal right, an easement.

An easement is a right over the land belonging to another person. If a right is to be capable of being an easement is must satisfy the four conditions of the Re Ellenborough (14) case. Firstly must be a dominant land that is, the land that this right benefits it and a servient land that is, the land that it’s burnt by this right. In this case the dominant land is Gail’s land while the servient land is Des’s land. Secondly the dominant and the servient tenements must have different owners because the same person cannot have a right over his own land. In this case different owners own the tenements. Thirdly the right must accommodate the dominant tenement. This means that the right must confer a benefit to the dominant tenement. The benefit must be to the dominant tenement itself and not personal to the landowner according with the case of Hill v Tupper (15). This means that the right must increase the value of the dominant tenement. In this case the right benefits the dominant tenement that is, Gail’s land because Gail will have for example more satellite channels and a better signal. And fourthly the right must be subject matter of a grant. This means that there must be a capable grantor and grantee and in this case the grantor is Des while the grantee is Gail. Also the right must be capable of being described with certainty. In the case of Voice v Bell (16) an easement of a right of way was not granted cause it was not clear whether or not this right benefited land. While in this case the right was certain about the satellite dish. If the right satisfy all these requirements then the right has been recognised as an easement. In this case all these requirements can be satisfied and thus an easement was created between them.

Even if a purported right is capable of being an easement, it still has to be created. There are four ways that an easement can be created: by express grant or reservation, by implied grant or reservation, by prescription or under s.62 of LPA 1925.

In this case actually Des has given to Gail a personal permission or license to put the satellite dish on his chimney. Under s.62 of LPA 1925 a licence can become a legal right, an easement. S.62 implies to all conveyances unless a contrary intention is expressed) ‘all privileges, easements, rights and advantages whatsoever appertaining to the land at the time of the conveyance’, then a mere personal privilege can become an easement. This means that from the time that Des sold his house and a conveyance took place, the personal permission of Des became an easement under s.62 of LPA 1925. Like in the case of Wright v Macadam (17) in which was held that the new lease was a conveyance within s.62 of LPA 1925 and she had acquired a legal easement.

Also must be diversity of occupation before the conveyance takes effect like in the case of Sovmots Investments Ltd v SSE (18). In this case there was diversity of occupation by Gail and Des before the conveyance takes effect. And at the end there must be a legal fee simple or grant or assignment of a legal lease in order an easement to be valid according with the case of Borman v Griffith (19). In this case there was a legal fee simple that it was sold to Samantha and Chris and thus there was a conveyance.

As a conclusion it must be said that the arrangement that Gail had done with Des is enforceable under s.62 of LPA 1925 and thus binds Samantha and Chris.

(Words: 2026)

• References

1. P.218, Para. 1st, Land Law by Kevin Gray & Susan Francis Gray, 2ND Edition.
2. [1977] 2 NSWLR 685, CA.
3. [1971] AC 886, HL.
4. P.235, Para. 3rd, Land Law by Kevin Gray & Susan Francis Gray, 2ND Edition.
5. [1987] 10 NSWLR 283, PC.
6. [1971] AC 886, HL.
7. [1840] 3 KB 138.
8. [1905] I Ch.
9. [1972] Ch 53.
10. [1981] AC 487.
11. [2002] EGCS 155.
12. [1984] FLR 313.
13. [1991] 1AC 56.
14. [1956] 1 Ch 131.
15. [1863] 2 H & C 121.
16. [1993] 68 P & CR 441.
17. [1949] 2 KB 744.
18. [1979] AC 144.
19. [1930] 1 Ch 493.

• Bibliography

• Kevin Gray & Susan Francis Gray (2001) Land Law, 2ND Edition by Butterworths.
• Judith-Anne Mackenzie & Mary Phillips (2002) Textbook On Land Law, 9th Edition by Oxford University Press.
• Kevin Gray & Susan Francis Gray (2001) Elements of Land Law, 3rd Edition by Butterworths.
• Meryl Thomas (2003/2004) Blackstone’s Statutes on Property Law, 11th Edition by Oxford University Press.
• Elizabeth A. Martin (2002) Dictionary of Law, 5th Edition by Oxford University Press.