An implied grant will be either through ‘necessity’ or ‘common intention’ however both methods are strictly limited by the court. An easement will be implied provided Bones can prove the land would be landlocked without the right of way under necessity, mere inconvenient is insufficient (Manjang v Drammah). For common intention, he has to prove that right is essential to fulfil parties’ mutual intention for the land to be used in the particular way (Stafford v Lee), however fact didn’t show the presence of common intention.
Since the right has been exercised for so many years, Bones might acquire an easement by prescription of via one of three modes: common law, lost modern grant and the Prescription Act 1832. This happens when he and his family carries out the right repeatedly, openly and without the landowner's permission for a period of at least twenty years.
Regardless of the modes, he must show that the use must be as of right (i.e. not enjoyed by force, secrecy or permission), it must be continuous (this is 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).
If he successfully acquires the easement by implied grant or prescription, the right will be served as a legal easement, which amount to an overriding interest under Sch 3 Para 3 LRA 2002, provided he satisfies that: the right is actually known to the purchaser or would have been obviously upon reasonably careful inspection of the land, or exercised within one year prior to the disposition.
Mrs Miggs
Mrs Miggs claim herself has a 10 year lease in the land. However it is advisable we should examine whether ‘lease’ has a proprietary right? As in Bruton v London & Quadrant Housing Trust the House of Lords have upheld the existence of contractual, non-proprietary leases. Hence it is important to distinguish a ‘term of years absolute’ (a lease) which carries a proprietary interest, from the other interests, most commonly, licence. Lease binds third parties, while licence doesn’t. Besides, the holder of a lease has security of tenure created by statute, but licence has not. The legal estate in term of years absolute must be created in a proper manner and must satisfy the definition in s 205(1)(xxvii)LPA 1925.
In order to prove it is a lease, Mrs Miggs must satisfy the essential characteristic of a lease: Street v Mountford [1985].
First, certainty of term. From the fact, ’10 years’ may satisfy this, as it is a fixed and certain maximum duration (Lace v Chantler), provided the agreement included a certain start date (Harvey v Pratt) as well.
Second, exclusive possession, it is the ability to exclude all others from the property, including the landlord. It is an essential element to a lease. However, this is a question of fact, as an exclusive possession may be based on a licence (Facchini v Bryson). It’s crucial to examine the surrounding circumstances. It should look into the substance of the right, a lease still exist even where a landowner using the ‘sham devices’ to prevent a lease to be granted (Street v Mountford). An occupier is either a ‘tenant’ or a ‘lodger’ , where the latter is someone who receive services from the landlord has no exclusive possession (Huwyler v Ruddy). However, merely a promise to provide such service is insufficient (Markou v Da Silvaesa).Since Mrs Miggs and Mrs Dunraven are relative, it may be doubtful there has no lease exist. As it may suggest that the occupation is based on family relationship merely create a licence, as there has no intention to create legal relation (David v LB Lewisham). However, a family relationship between the parties will not automatically preclude the creation of a lease, it will depend upon the circumstances (Num v Dalrymple).Where a landowner genuinely reserve to himself a right to make use of the premises, and if such use is made, no exclusive possession (Antoniades v Villiers).
Third, rent. In more recent cases it has been accepted that you can have a lease without the payment of rent (Asburn Anstalt v Arnold). The definition of a term of years absolute in s205(1)(xxvii) LPA 1925 makes it clear that a lease an exist ‘whether or not at a rent’.
A lease has actually been granted, upon satisfaction of certain formalities. It should be noted that there must be a capable grantor to grant a lease, if not, a licence will arise.
Formalities for the creation of a legal lease differ depending upon the duration of the lease. Since the there is a 10 years lease, which over 3 years, it must be granted by deed to create a legal lease, s52 LPA 1925. A valid deed must comply with s1(2) Law of Property (Miscellaneous Provision)Act 1989 it must be clear on its face, signed by grantor witness (attested) and delivered. Where the lease granted is over 7 years in duration, it must be registered s27(2)(b)(i) LRA 2002, results in registrar putting a notice on the charges register of the land over which the lease exists. Lease thus becomes binding.
Where legal formalities have not been met, an equitable lease may exist instead, provided formalities in equity have been met. The formalities of an equitable lease is agreement must amount to a valid contract in land in accordance with s2 LP(MP)A 1989 and that it is one capable of specific performance (Coatsworth v Johnson). Equity views as done that which ought to be done, equity views the specifically enforceable contract as creating an equitable lease (Walsh v Lonsdale). Besides, it should be entered as a notice on the charges register of the land over which it exists s32 LRA 2002 it binds; where no entry is made, it will not bind a purchaser for valuable consideration s29 LRA2002 unless it satisfies requirements under sch 3 para 2 and thus binds as an overriding interest. However, an equitable lease is not as good as the legal lease, an equitable lease depends upon court discretion; a legal lease doesn’t.
Under Sch 3 para 2, an interest will be binding upon a purchaser under this provision where Mrs Miggs can establish the interest she holds is a proprietary one, be it legal or equitable (and not excluded from this provision by the LRA 2002); and the interest existed as the time of disposition; and she was in actual occupation of the land to which the interest relates and either: (a) the occupation would be obvious upon reasonably careful inspection of the land; or (b)the purchaser had actual knowledge of the interest. This is provided she didn’t fail to disclose the interest if enquiry had been made.
If Mrs Miggs fail to meet appropriate formalities, periodic tenancy may be implied (Prudential Assurance v LRB), provided she takes possession and starts paying rent by reference to a period s55(c) LPA 1925. This will be a legal lease as it falls into the s54(2)LPA 1925 exception. It will be less than 3 years in duration, no special formality required to make it legal, provided it takes effect in possession and at a best rent without taking a fine.
Jonathan
All freehold covenants are enforceable between the original covenanting parties based upon principles of contract law. Where successors in title to the original covenanting parties wish to enforce covenants, they must establish the burden and benefit of the covenants passed to them. However at common law, the burden of a covenant will never pass to a successor of the servient land. This was confimed by HOL in Rhone v Stephens. Hawkins is the successors of the servient land, in order to enforce the covenant, Jonathan must prove the burden of covenant passed to successor of the servient land.
Equity will pass the burden of a covenant to a successor of the servient land but only where the four requirements developed from Tulk v Moxhay (1848) are met.
First, the covenant must be negative in nature, when it doesn’t require action or expenditure of money in order to be complied with (Haywood v Brunswick Permanent Benefit BS). Prohibition to run a business, is negative in nature.
Second, the covenant must accommodate the dominant land. There have 3 components must all be met:
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There must be identifiable land that can enjoy the benefit of the covenant, both at the time of creation and the date of enforcement of the covenant: LCC v Allen
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The covenant must touch and concern the dominant land. It must provide an actual benefit to the land itself rather than merely a personal benefit to the original covenantee. According to Re Gadd’s Land Transfer (1966), a covenant may do this where it: affect the value of the dominant land, though this need not be monetary; or affect the mode of occupation or enjoyment of the dominant land. Fact didn’t include the purpose of the covenant, it may doubtful that it may confer a personal benefit to Jonathan, which is to keep his business unaffected.
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There must be sufficient proximity between the dominant and servient lands. (Rogers v Hosegood ), but both land need not be adjacent to each other. Since the both land are allocated in Hispaniola, proximity is likely to be satisfied.
Third, the original parties must have intended for the burden to pass with the servient land and this may be in the express wording of the covenant; or be implied by virtue of s79 LPA 1925, subject to the contrary intention.
Fourth, the purchaser of the servient land must have had notice of the covenant. The covenant should be entered as a notice on the charges register of the servient land s32 LRA 2002. When entered, a purchaser has notice s29(2) LRA 2002. A restrictive covenant that has not been entered on the register will not amount to an interest that can override.
Summing up, Jonathan may not enforce the covenant against Hawkins, because the covenant may not deem to accommodate the dominant land. However, if Jonathan didn’t enter a notice in the register, Hawkins is deemed not to have the notice, and he can’t claim an overriding interest for the covenant.
Livesy
The fact didn’t mention whether Livesy has a legal title over the land. In the case where he has a legal title, he is likely a tenant in common in equity as contribution merely to the deposit is considered as an unequal contribution, equity has always presumed that unequal contributors hold the property as tenants in common, having a share in the property proportional to his contribution to the purchase price. (Lake v Gibson; Bull v Bull)
In the case where a legal title was not vested on him, a resulting trust will be imposed, give him a share in equity on the basis of a tenancy in common in proportion to the contribution provided(Dyer v Dyer).
To get a bigger share he can raise he has a constructive trust. He must prove that Mrs Dunraven and him share a common intention (expressly or impliedly), that he should have some interest in the land, which intention is relied on by the him to his detriment.
There have 4 routes to show a common intention: First, where parties expressly reached an agreement, arrangement or understanding that the beneficial ownership of the property was to be shared (Lloyds Bank plc v Rosset). Second, Inferred common intention from payments, where direct contribution to the purchase price (Lloyds Bank plc v Rosset), indirect financial contributions, will not suffice to establish the requisite common intention (Burns v Burns). Rosset’s approach is deemed to be restrictive. More flexible approaches are provided in the subsequent cases. In Stack v Dowden, third route was provided that a common intention could be inferred from the parties’ entire course of conduct, common intention as to ownership based on parties’ entire relationship with each other, wide-ranging factors will be taken into account, other than financial contribution. Fourth, in Jones v Kernott, in the absence of evidence as to how the shares were intended to alter, the court has the right to impute a common intention to achieve a fair and just result.
Alternatively, as a fall back provision; he can raise proprietary estoppel if he failed on constructive trust. He must show that he has acted to his detriment upon the belief, encouraged by Mrs Dunraven, that he has (or will have) some right in that land. Unlike constructive trust, proprietary estoppel there does not have to be a common intention and the remedy is based on court discretion.
After establishing either one, Livesy may claim his right under Sch 3 para 2, the right will be deemed as an overriding interest. Sch 3 para 2, an interest will be binding upon a Hawkins where Livesy can establish that: First, he has a valid and enforceable property right immediately before the transfer to the purchaser. Livesy’s beneficial interest is likely deemed to be a valid and enforceable property, and it arose before the disposition is made. Second, he has to be in actual occupation of the land which the right exist, or purchaser has the actual knowledge of the claimant’s interest.
However, it is doubtful what whether Livesy able to prove it successfully, since question didn’t cover in detailed. To prove actual occupation, it needs to be physical presence in the land (Williams&Glyn’s Bank v Boland), discoverable on a reasonable careful inspection of the land at the time of disposition (Thomas v Clydesdale Bank). If he was away from the land in any particular time, there will be actual occupation where occupation was manifested and accompany with the continuity intention to occupy (Hoggett v Hoggett). However, in Lloyds Bank plc v Rosset, it may be enough just to find a regular presence of builders at the property, employed and supervised by the person claiming to be in actual occupation. Then, the actual occupation must exist at the time of the transfer of the land rather than the date of registration of the transfer. (Abbey National BS v Cann). Besides, If enquiry was made of the his interest and he failed to disclose his interest, interest will not override, if it is reasonable to have disclosed. If he can satisfy the requirement under Sch 3 para 2, he is likely to have an overriding interest.
Livesy’s right is capable of being overreached (s2 LPA 1925). However, there is unlikely an overreaching take place, as possibly Hawkins paid the purchase money to only one trustee, Mrs Duraven. Hence, it might fail to meet the requirement of overreaching, s27(2)LPA 1925; City of London Building Society v Flegg).
Bibliography
Books
Rabinder Singh, Land Law Study Manual LL.B.
Victoria Sayles, Concentrate Land Law.
Martin Dixon, Mordern Land Law, 8th edition.
Judith Bray, Unlocking Land Law, 3rd edition.
Online resources
UOL, Course Material , Chapter 3:Registration of Title,
UOL, Course Material, Chapter 6: Landlord and tenant: the law of leases,
UOL, Course Material, Chapter 8 : Easements and profits à prendre,
Proprietary Estoppel:
Cases
Abbey National BS v Cann [1991] AC 56.
Antoniades v Villiers [1988] UKHL 8..
Asburn Anstalt v Arnold [1989] CH 1. L & T.
Bailey v Stephens (1862) 12 CB (NS) 91.
Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157.
Bruton v London & Quadrant Housing Trust [1999] UKHL 26.
Bull v Bull [1955] 1 QB 234.
Burns v Burns [1984] Ch 317
City of London Building Society v Flegg [1988] 1 AC 54.
Coatsworth v Johnson [1886] 54 LT 520.
Copeland v Greenhalf [1952] Ch 488
David v LB Lewisham [1977] 1 WLR 1807.
Dyer v Dyer [1788] EWHC Exch J8.
Facchini v Bryson [1952] 1 TLR 1386.
Green v Ashco Horticultural Ltd [1966] 1 WLR 889.
Harvey v Pratt [1965] 2 All ER 786.
Haywood v Brunswick Permanent Benefit BS (1881) 8 QBD403.
Hill v Tupper (1863) 2 H & C 121.
Hoggett v Hoggett 39 P & CR 121.
Huwyler v Ruddy (1996) 28 H.L.R. 550
Jones v Kernott [2011] UKSC 53
Lace v Chantler [1944] KB 368.
Lake v Gibson (1729) 1 Eq Case Abr 290.
LCC v Allen [1914] 3 K.B. 642.
Lloyds Bank plc v Rosset [1990] UKHL 14
Manjang v Drammeh (1991) 61 P & CR 194.
Markou v Da Silvaesa [1986] 1 EGLR 80.
Mills v Silver [1991] 1 All E.R. 449.
Moody v Steggles (1879) 12 Ch D 261.
Mounsey v Ismay (1865) 3 H & C 486.
Mulliner v Midland Railway Co L.R. 11 Ch. 632.
Num v Dalrymple [1990] 1 All ER 525.
Phipps v Pears [1965] 1 QB 76
Platt v Crouch [2003] EWCA Civ 1110.
Prudential Assurance v LRB [1992] 2AC 386.
Pugh v Savage [1970] 2 QB 373.
Re Ellenborough Park [1956] Ch 131.
Re Gadd’s Land Transfer (1966) Ch. 56.
Regis Property Co Ltd v Redman [1956] 2 QB 612.
Rhone v Stephens [1994] 2 All ER 65.
Roe v Siddons (1888) 22 Q.B.D. 224.
Rogers v Hosegood [1900] 2Ch 388.
Stack v Dowden [2007] UKHL 17.
Stafford v Lee [1992] EWCA Civ 17.
State Bank of India v Sood [1997] Ch 276.
Street v Mountford [1985] UKHL 4.
Thomas v Clydesdale Bank [2010] EWHC 2755.
Tulk v Moxhay (1848) 41 ER 1143
Walsh v Lonsdale (1882) 21 Ch D 9.
Williams&Glyn’s Bank v Boland [1981] AC 487.
Legislations
Land Registration Act 1925.
Land Registration Act 2002.
Land Registration Act 2002, s27(2)(b)(i).
Land Registration Act 2002, s29(2)
Land Registration Act 2002, s29.
Land Registration Act 2002, s32.
Land Registration Act 2002, s32.
Land Registration Act 2002, Sch 3 Para 3.
Land Registration Act 2002,Sch 3 para 2.
Law of Property (Miscellaneous Provision)Act 1989, s1(2).
Law of Property (Miscellaneous Provision)Act 1989, s2.
Law of Property Act 1925, s 205(1)(xxvii).
Law of Property Act 1925, s 205(1)(xxvii).
Law of Property Act 1925, s.1(2)(a)
Law of Property Act 1925, s2.
Law of Property Act 1925, s27(2).
Law of Property Act 1925, s54(2).
Law of Property Act 1925, s55(c).
Law of Property Act 1925, s79.
Law of Property Act 1925,s52.
Prescription Act 1832.
Secondary Sources
Law Commission, Land Registration for the Twenty-First Century, (Law Com No 254, 1998).
Land Registration Act 1925; hereinafter referred to as LRA 1925.
Law Commission, Land Registration for the Twenty-First Century, (Law Com No 254, 1998).
Land Registration Act 2002, hereinafter referred to as LRA 2002.
Rabinder Singh, Land Law Study Manual LL.B, 23.
Victoria Sayles, Concentrate Land Law, 31.
UOL, Course Material , Chapter 3:Registration of Title, .
State Bank of India v Sood [1997] Ch 276.
UOL, Course Material , Chapter 3:Registration of Title, .
Victoria Sayles, Concentrate Land Law,189.
Law of Property Act 1925, s.1(2)(a); hereinafter referred to as LPA 1925.
Re Ellenborough Park [1956] Ch 131.
Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157.
which enjoys the benefit.
which is burdened by the exercise of the easement.
Hill v Tupper (1863) 2 H & C 121.
Moody v Steggles (1879) 12 Ch D 261.
Platt v Crouch [2003] EWCA Civ 1110.
Martin Dixon, Mordern Land Law, 8th edition, 279 -280.
Martin Dixon, Mordern Land Law, 8th edition, 280.
Mounsey v Ismay (1865) 3 H & C 486.
Victoria Sayles, Concentrate Land Law, 189.
Bailey v Stephens (1862) 12 CB (NS) 91.
Pugh v Savage [1970] 2 QB 373.
Victoria Sayles, Concentrate Land Law, 190.
Roe v Siddons (1888) 22 Q.B.D. 224.
Victoria Sayles, Concentrate Land Law, 190.
Mulliner v Midland Railway Co L.R. 11 Ch. 632.
Rabinder Singh, Land Law Study Manual LL.B, 109.
Victoria Sayles, Concentrate Land Law, 191.
Regis Property Co Ltd v Redman [1956] 2 QB 612.
Victoria Sayles, Concentrate Land Law, 191.
Phipps v Pears [1965] 1 QB 76.
Copeland v Greenhalf [1952] Ch 488.
Green v Ashco Horticultural Ltd [1966] 1 WLR 889.
Rabinder Singh, Land Law Study Manual LL.B, 110.
Victoria Sayles, Concentrate Land Law, 194.
Manjang v Drammeh (1991) 61 P & CR 194.
Victoria Sayles, Concentrate Land Law, 194.
Stafford v Lee [1992] EWCA Civ 17.
UOL, Course Material, Chapter 8 : Easements and profits à prendre,
Victoria Sayles, Concentrate Land Law, 199.
Mills v Silver [1991] 1 All E.R. 449.
UOL, Course Material, Chapter 8 : Easements and profits à prendre,
Land Registration Act 2002, Sch 3 Para 3.
Victoria Sayles, Concentrate Land Law, 202.
Bruton v London & Quadrant Housing Trust [1999] UKHL 26.
Hereinafter referred to as HOL.
UOL, Course Material, Chapter 6: Landlord and tenant: the law of leases,
Victoria Sayles, Concentrate Land Law,75.
Law of Property Act 1925, s 205(1)(xxvii).
Rabinder Singh, Land Law Study Manual LL.B, 175.
Street v Mountford [1985] UKHL 4.
Lace v Chantler [1944] KB 368.
Harvey v Pratt [1965] 2 All ER 786.
Facchini v Bryson [1952] 1 TLR 1386.
Rabinder Singh, Land Law Study Manual LL.B, 179.
Huwyler v Ruddy (1996) 28 H.L.R. 550.
Judith Bray, Unlocking Land Law, 3rd edition, 349.
Markou v Da Silvaesa [1986] 1 EGLR 80.
Martin Dixon, Mordern Land Law, 8th edition, 215.
Martin Dixon, Mordern Land Law, 8th edition, 214.
David v LB Lewisham [1977] 1 WLR 1807.
Victoria Sayles, Concentrate Land Law,79.
Num v Dalrymple [1990] 1 All ER 525.
Antoniades v Villiers [1988] UKHL 8..
Martin Dixon, Mordern Land Law, 8th edition, 218.
Asburn Anstalt v Arnold [1989] CH 1. L & T.
Law of Property Act 1925, s 205(1)(xxvii).
Martin Dixon, Mordern Land Law, 8th edition, 221.
Victoria Sayles, Concentrate Land Law,81.
Law of Property Act 1925,s52.
Law of Property (Miscellaneous Provision)Act 1989, s1(2); hereinafter referred to as LP(MP)A 1989.
Land Registration Act 2002, s27(2)(b)(i).
Law of Property (Miscellaneous Provision)Act 1989, s2.
Coatsworth v Johnson [1886] 54 LT 520.
Walsh v Lonsdale (1882) 21 Ch D 9.
Land Registration Act 2002, s32.
Land Registration Act 2002, s29.
Land Registration Act 2002,Sch 3 para 2.
Victoria Sayles, Concentrate Land Law,87.
Prudential Assurance v LRB [1992] 2AC 386.
Law of Property Act 1925, s55(c).
Law of Property Act 1925, s54(2).
Victoria Sayles, Concentrate Land Law,84.
Rhone v Stephens [1994] 2 All ER 65.
Rabinder Singh, Land Law Study Manual LL.B, 142.
Tulk v Moxhay (1848) 41 ER 1143.
Haywood v Brunswick Permanent Benefit BS (1881) 8 QBD403.
Victoria Sayles, Concentrate Land Law,215.
Victoria Sayles, Concentrate Land Law,216.
LCC v Allen [1914] 3 K.B. 642.
Re Gadd’s Land Transfer (1966) Ch. 56.
Rogers v Hosegood [1900] 2Ch 388.
for example, ‘the covenantor covenants on behalf of himself and his successors in title’.
Law of Property Act 1925, s79.
Victoria Sayles, Concentrate Land Law,217.
Land Registration Act 2002, s32.
Land Registration Act 2002, s29(2)
Victoria Sayles, Concentrate Land Law,217-218.
Lake v Gibson (1729) 1 Eq Case Abr 290.
Bull v Bull [1955] 1 QB 234.
Rabinder Singh, Land Law Study Manual LL.B, 74.
Dyer v Dyer [1788] EWHC Exch J8.
Victoria Sayles, Concentrate Land Law,139.
Lloyds Bank plc v Rosset [1990] UKHL 14 .
Burns v Burns [1984] Ch 317.
Victoria Sayles, Concentrate Land Law, 139-141.
Stack v Dowden [2007] UKHL 17.
Martin Dixon, Mordern Land Law, 8th edition, 172.
Jones v Kernott [2011] UKSC 53.
Martin Dixon, Mordern Land Law, 8th edition, 174.
Martin Dixon, Mordern Land Law, 8th edition, 62.
Williams&Glyn’s Bank v Boland [1981] AC 487.
Thomas v Clydesdale Bank [2010] EWHC 2755.
Hoggett v Hoggett 39 P & CR 121.
Abbey National BS v Cann [1991] AC 56.
Martin Dixon, Mordern Land Law, 8th edition, 54-55.
Law of Property Act 1925, s2.
Law of Property Act 1925, s27(2).
City of London Building Society v Flegg [1988] 1 AC 54.
Martin Dixon, Mordern Land Law, 8th edition, 82.