The tip-up seats are annexed to the ground, and apparentely they cannot be easily removed without any damage to the property. The object of their annexation is to make the room useful as a mini-cinema. In fact, there would seem to be no question as to their intrinsic merit as chattels. The cinema seats were installed for the more convenient use of the property, not to their use as chattels. In Vaudeville Electric Cinema Ltd v Mauriset, seats secured to the floor of a cinema hall were fixtures. Normally, free-standing seats would be considered chattels. Here, however, they were affixed to make the hall more convenient as a cinema and were held to be fixtures.
On the grounds of the coursework question it is highly possible that the cinema sits are fixtures.
A large gas-fired cooking range was also removed by Mr. Stone, and that is another item which Fred and Wilma are trying to claim back to their new property. In Botham v TSB Bank kitchen appliances which were only electrically connected to the land were considered chattels. Therefore if the cooking-range is 'free standing' it is likely to be chattel. Nevertheless in the case of Gray and Gray it was said that the above test is being replaced by the test concerning the purpose of annexation. To apply this test we need to ask whether the object was intended to affect a permanent enjoyment of the land or was only a temporary addition to the land serving the role of a chattel. It seems that same as plasma screen, the cooking-range was installed for the permanent enjoyment of the realty. Hence Fred and Wilma have a strong case against Mr. Stone to recover the items taken by him on the basis that they were fixtures permanently affixed to the realty.
2)
Fred is a registered, sole proprietor of the Flinstone Cottage. Although Wilma contributed a part of the price. Accordingly to the Trusts of Land and Trustees Act 1996 (TOLATA) this kind of arrangement is a sole trusteeship coupled with co-ownership in equity. Hence, Wilma's interest in the property is only equitable.
TOLATA 1996 came into force on 1 January 1997, and was a result of a recognised need for amendment of the Law of Property Act 1925 (LPA). Before TOLATA, LPA was dealing with trusts, but some problems, included the fact that it was hard to establish a trust without it coming under the auspices of the Settled Act 1925.
Applications for the sale of trust land by a creditor which is not a claim in bankruptcy are managed in accordance with the criteria introduced by TOLATA s.15 (1). The application process includes the welfare of any minor who occupies the trust land as his home, interests of any secured creditor (in this case Souther Rock Building Society), and the intentions of the person who created the trust (here the marital home).
In the House of Lords case of Harrow LBC v Quazi,, Mr. Quazi had held a joint tenancy of a council house together with his wife. Afterwards his wife moved out and he remarried. He applied for the new tenancy which was not granted. The Council was entitled to refuse to grant the new tenancy and then tried to recover possession from Mr.Quazi. He relied on Article 8 of the European Convention on Human Rights arguing that he had a right to home. In this case the Council had an unqualified right to repossess the property. The HoL ruled that it is not possible to rely on the alternative on any rights acquired under the ECHR. This decision indicates that the court will not set aside the creditors if they have the contractual and proprietary right in possession.
Before TOLATA 1996 the principles from Land Registration Act 1925 were the most recent ones. The great example of this rules at use is Boland's case. In this case, a wife successfully claimed an overriding interest in a property which her husband had mortgaged to support a failing business. When the bank tried to take possession she proved that she made substantial contributions to the purchase, and was in actual occupation of the property, so accordingly to the section 70 of the Land Registration Act 1925 her overriding interest in the property was upheld.
LRA 1925 was completely replaced by the Land Registration Act 2002, and the provisions considering the issues of overriding interest can be found now in schedules one and three. Although the case law based on 1925 Act still is thought to be a good law.
In the case of First National Bank plc v Achampong it was said that 'the bank will be kept waiting indefinitely for any payment out of what is, for all practical purposes, its own share of the property'. It means that in any case the bank will not be deprived of its own share in the property, resulting out of mortgage debt owned to it by the property owner.
In the Bank of Barroda v Dhillon case, the bank sought the possession of matrimonial home. This was granted, even when the wife had an overriding interest under the LRA 1925 (now sch. 3, para. 2 LRA 2002) which bound the bank. The crucial factor in the decision of this case was that the children were grown up, and after the eviction wife would still have enough money for other accommodation. I think this case is a good explanation of the relationship between sec.15 of TOLATA and an overriding interest.
There are also the compassionate reasons which may have an influence on the decision in this case, but on their basis its rather possible to postpone the sale, than to prevent it completely. The hardship enforced sale is often seen as offset by the period of essentially rent and mortgage free accommodation the evictee had enjoyed.
Hence, it seems very unlikely that Wilma would be able to prevent Southern Rock Building Society from taking possession of the house. Nevertheless she might be able to get the postponement of the sale on the basis of the financial hardship and the lack of knowledge about the mortgage taken by Fred.
3) Question number three considers the issues of adverse possession of the property. The property from the coursework question (Flinstone Cottage) is a registered property. Therefore it is a subject to the sections 96, 97, 98, and schedule 6 of the Land Registration Act 2002 (LRA). First registration of the land took place in 20022, but anyway schedule 6 1(4) provides that the estate does not need to be registered for the entire period of the adverse possession to apply the provisions of LRA. Accordingly to the schedule 6, paragraph 1(1) ten years period of adverse possession is required to make the application for becoming the registered proprietor of the land. Immediately successive periods of adverse possession by different individuals can be aggregated to meet the ten year requirement. The first occupation of the land started in 1992 (by Cpt. Flint), and has been continuous by him and Fred till 2005. Hence if the Cpt. Flint’s occupation of the land qualifies as adverse possession Fred might apply to become the registered proprietor of Flinstone Cottage. Nevertheless accordingly to section 98 Mr. Rubbly can easily defeat the adverse possession claim by objection within 65 days of being served with the notice of application. The successful adverse possession can take place only if Mr. Rubble would have failed to object or if, despite the objection Fred remained in possession for the next two years. There are two essential requirements for the successful claim for adverse possession. First of all Cpt. Flint and Fred must prove that both of them had the factual possession of the property. Factual possession is defined as 'complete and exclusive control' over the land. In the case of Fred a nd Cpt. Flint both of them seem to be in the factual possession of the land for the relevant period of time. One of the strongest evidences of adverse possession in British law is the enclosure of the area of the land. The piece of land possessed by Cpt. Flint and Fred was not fenced off and it might weaken Fred's claim to factual possession. Secondly there has to be intention to possess the land for the duration of the purported period of adverse possession. If there is any written or signed acknowledgement from the paper owner during period of adverse possession it would be fatal to the claim, and therefore adverse possession will not be possible. There was no such written evidence in the coursework question. Fred was not aware of the ownership of the land belonging to Mr. Rubble Although the actions of Cpt. Flint were done with the acceptance of the title to the land belonging to Mr. Rubble Hence the requirement of factual possession by Cpt. Flint will not be satisfied, and the adverse possession period of ten years will not be fulfilled. Accordingly to Powell v McFarlane's case, to prove the intention to possess, Freed must show 'the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with paper title'. This intention is deducted from conduct, therefore Fred And Cpt. Flint have to show that they were acting in a manner which is objectively consistent with a claim to exclusive possession on their own behalf. It has to prove that the paper owner, if present on the land, would appreciate that the claim not merely a persistent trespasser, but is actually seeking to dispossess him. The coursework question does not say anything about whether Mr. Rubble was present on the land during the time when Cpt. Flint was using it, but it is clear to assume that he knew of the use of land and did not think either Cpt. Flint or Fred were seeking to dispossess him. Accordingly to this facts the evidence against objective intention to dispossess him might exist. Therefore it is highly possible that Fred may be able to dispossess Mr. Rubble by establishing of the factual possession. However failure to enclose the land might weaken his claim. Apart from that subject to the additional evidence about Mr. Rubble’s knowledge of events, Fred may also be able to establish the requisite intention to possess. Nevertheless even if Fred is having a strong claim in adverse possession, it can be easily defeated by the simple objection by Mr. Rubble, because land is registered under his name and he will be informed about the claim. Hence, it is unlikely to be successful
Words: 2395
Bibliography:
Textbooks:
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Judith-Anne MacKenzie, Mary Phillips, 'Textbook on Land Law' (Oxford University Press; 13th edition, 2010)
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Dr Martin Dixon, 'Modern Land Law',(T & F Books UK Sixth Edition,2009)
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Kevin Gray, Susan Francis Gray, 'Elements of Land Law', (Oxford University Press 5th edition,2008)
Articles:
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Simon Gardner, 'An Introduction to Land Law', L.Q.R. 2008, 124(Apr), 343-346
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J. Howell, 'The Human Rights Act 1998: land, private citizens, and the common law'
L.Q.R. 2007, 123(Oct), 618-635
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Douglas J. Cousine 'Adverse possession of land in Scots and English law',I.C.L.Q. 1996, 45(3), 667-675
Cases:
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Berkley v Poulet (1976) 242EG 39
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Holland v Hodgson (1872) LR 7 CP 328
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Elistone Ltd v Morris [1997] 1 WLR 687 (HL)
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D'Eyncourt v Gregory (1866) LR 3 Eq 382
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Vaudeville Electric Cinema v Mauriset [1923] 2 Ch 94
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Botham v TSB Bank PLC (1996)
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Kevin Gray and Susan Francis Gray, Land Law 4th edition OUP 2006
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Williams & Glyn's Bank Ltd v Boland [1981] AC 487
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Harrow LBC V Qazi (2004) 1 AC 983
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First National Bank plc v Achampong (2004) EWCA Civ 487
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Bank of Barroda v Dhillon [1998] FLR 524 (HC)
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Seddon v Smith (1877) 36 LT 168
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Dulieu v. White and Sons, [1901] 2 KB 669
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Lambeth LBC v Archangel (2002) I P & CR 230, CA
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Powell v McFarlane (1977) 38 P & CR 452
Statutory Provisions:
- Law of Property Act 1925
- Trusts of Land and Trustees Act 1996
- Settled Act 1925
- European Convention on Human Rights
- Land Registration Act 1925
- Land Registration Act 2002
. Real property is property, that includes land and buildings, and anything affixed to the land. For a business, real property would include warehouses, factories, offices, and other buildings owned by the business. Real property only includes those structures that are affixed to the land, not those which can be removed, such as equipment.
Berkley v Poulet (1976) 242EG 39
Holland v Hodgson (1872) LR 7 CP 328
Elistone Ltd v Morris [1997] 1 WLR 687 (HL)
D'Eyncourt v Gregory (1866) LR 3 Eq 382
Vaudeville Electric Cinema v Mauriset [1923] 2 Ch 94
Botham v TSB Bank PLC (1996)
Kevin Gray and Susan Francis Gray, Land Law 4th edition OUP 2006
Harrow LBC V Qazi (2004) 1 AC 983
Williams & Glyn's Bank Ltd v Boland [1981] AC 487
First National Bank plc v Achampong (2004) EWCA Civ 487
Bank of Barroda v Dhillon [1998] FLR 524 (HC)
Schedule 6, paragraph 11 of the Land Registration Act 2002
Seddon v Smith (1877) 36 LT 168
Lambeth LBC v Archangel (2002) I P & CR 230, CA
Powell v McFarlane (1977) 38 P & CR 452
Powell v McFarlane (1977) 38 P & CR 452