Following the decision in Stack v Dowden1, the law concerning co-ownership and the parties presumptive corresponding shares of the property in both sole and joint ownership cases has undergone a substantial transfiguration
‘At its simplest the principle in Stack v Dowden is that a “common intention” trust, for the cohabitants’ home to belong to them jointly in equity as well as on the proprietorship register, is the default option in joint names cases. The trust can be classified as a constructive trust, but it is not at odds with the parties’ legal ownership. Beneficial ownership mirrors legal ownership. What it is at odds with is the presumption of a resulting trust.’ Following the decision in Stack v Dowden[1], the law concerning co-ownership and the parties’ presumptive corresponding shares of the property in both sole and joint ownership cases has undergone a substantial transfiguration, with the substructure of the presumption of beneficial interest diverting from, and overruling, the previous decisions of Pettit v Pettit[2] and Gissing v Gissing[3]. The new presumptive standpoint would indeed appear to simplify the law surrounding disputes of beneficial interest, but to attempt to conceptualise the ‘simplicity’ of the subsequent principles is to greatly disparage the complexities, nuances and issues which also emanate from the resultant legal position. The determination of beneficial interest in a property is primarily ascertained through express or implied trusts. Where there is an express declaration of trust, the shares contained therein are conclusive[4] unless
Covenants in land law.
A covenant in land law is a promise created by deed1 between two parties, one providing the promise not to engage in an activity (negative) or to do a positive action on their own land for the benefit of the other parties neighbouring land e.g. preservation of non-business character in residential areas. Covenants between freeholders contain two aspects; a benefit to the person receiving the obligation and a corresponding burden to the provider. The rules relating to transmission of the benefit of the covenant are independent from the transmission of a burden. It is possible for the benefit to run to 'successors in title' of the original covenantee but for the burden to have been destroyed or to bind original covenantor only (see later), and vice versa. The benefit of a covenant will pass provided that the covenant 'touches and concerns'2 the land of the original covenantee at the time it was made. This means property law is concerned with the transmission of proprietary rights, not personal advantages. This ensures the title is not cluttered up by obligations that are merely temporary, ambiguous and personal in nature, the conveyance of land is unfettered. Diagram to illustrate parties involved. A = COVANANTEE - Alan has benefit of covenant (Freehold owner) (receives the promise) B = COVENANTOR - Justin has burden of covenant and the person whom gives the benefit.
Property law: Land Law.
PROPERTY LAW: LAND LAW Property law: Land Law Assignment 2 PART 1 a. The 2 forms of estate that can exist at law are Freehold and Leasehold. The clause 'term of years absolute' makes reference to the latter, in particular the nature of the lease and is made explicit in LPA 1925 s.1. The 'term of years' refers to the length of the lease. This can be of any duration of time, from periods of less than a year, to a year certain, a fraction of a year, more than a year and from year to year. The phrase 'absolute' indicates that the lease may be executed now to grant a term beginning upto 21 years in the future. In other words, the lease can be drawn up and agreed and executed well before it begins to take effect. b. All the properties are freehold and have been let on fixed term tenancies. i) a self-contained flat let on a weekly tenancy In this instance, the contract between the landlord and tenant is a short-term agreement of under 3 years and would therefore normally be in the form of a 'tenancy agreement'. This form of agreement is a document that is not in the form of a deed as defined in s.54 (2) of the LPA 1925. If the termination of tenancy is required, then, at the very least, the tenant has certain protection under common law and under statute. In the former case, a Notice to Quit must be served that is in length equivalent to at least the complete period
This essay will focus on three areas. First, a brief consideration of equity will be presented. Next, an explanation of the nature and legal structure of a trust and a brief explanation of the historical development of trust and why the modern terminology
Property Law Equity is a body of law that remedies which develop historically through the courts of chancery. Prior to the judicature act 1873 and 1875 during which there was two parallel systems of law operating in England each upholding and applying its own distinction rights. The common law courts applied the common law and the courts of chancery applied equity. In order to more specifically examine and reference to the historical development of trust. This essay will focus on three areas. First, a brief consideration of equity will be presented. Next, an explanation of the nature and legal structure of a trust and a brief explanation of the historical development of trust and why the modern terminology prefer trust rather than use , will be given. Finally, an illustration of the use of trusts in modern property law will be focused on. In 1234 a common law court was designed, this court was called the court of common pleas1. During this period before a case can be heard in the court the plaintiff had to seek a royal administrative command [writs] which was issued by the king authorising commencement of the proceedings in the court of chancery2. New commands had to be developed to meet the plaintiff's case, the provisions had prevented the issuing of new command without the permission of the kings council which had the effect of closing the range of command available. The
Co-ownership on Family Home
Land law can be rigid sometimes and show an unkind hand to those deserving but are lacking in legal formality. This scenario is particularly an issue in marital breakdown cases, especially where only one spouse possesses the legal title1. Where trust deems unfounded; ingested with bitterness and emotional turmoil, having to fulfil many strict requirements can leave deserving parties sometimes losing much more than a relationship. Nevertheless, the law tries to protect the weaker party in equity but this is no easy task. Even more difficult for partners that are not legally married2 as seen in Burns v Burns3 or those defined under the Civil Partnership Act 2004, whom are not protected by any statutory provisions. Where only one party has the legal title, the other party has to establish his/her equitable interest in the land which is usually not already recorded on the land register or deed. If established, the interest is overriding by virtue of the Land Purchase Acts and the Land Registration Acts. This is usually done via the vehicles of equitable trusts, along with proprietary estoppel. Hence, if the non-legal owner establishes his/her equitable interest, the property is co-owned in equity and this is binding upon the legal owner in relation to the division of rights to and in the family home4 in lieu of relationship breakdown5. Problems will not arise if there is an
The rules governing the creation of implied easements are in need of reform. Discuss
The rules governing the creation of implied easements are in need of reform. Discuss (2000 words) Many are familiar with the two principal estates that are capable of existing in land; the fee simple absolute in possession (or freehold), and the term of years absolute (or leasehold). A less well-known but no less significant legal right in land is the easement. The law governing the creation of easements, both expressly and impliedly, has developed in a somewhat haphazard way, and there is an argument that the current state of that law is not fit for purpose in today's society. This essay will consider the law specifically relating to the creation of implied easements, in order to assess whether it is indeed in need of reform. We must begin, briefly, with the basics. An easement is a right of user over the land of another. This right can be either positive or negative, and must be attached to a specific piece of land, which is described as the "dominant tenement". The right must also be capable of being exercised over a second piece of land, the "servient tenement". The holder of the right is enabled to use the servient tenement land in a particular way, as particularised in the specific right. A right of way, frequented by a neighbour, over the farmland of another, would be an obvious example. In the eyes of the law, the holder of the right has a proprietary right over the
'The 'mirror' principle, the 'curtain' principle and the 'insurance' principle form the tripod on which the whole English and Welsh system of land registration rests'.Explain, in detail, these three principles.
(a) 'The 'mirror' principle, the 'curtain' principle and the 'insurance' principle form the tripod on which the whole English and Welsh system of land registration rests'. Explain, in detail, these three principles and discuss the validity of the statement quoted. and (b) What is an overriding interest and why is the concept important in relation to the transfer of title of land in England and Wales? (a) The object of registration of title is to make the transfer of land simpler, quicker, cheaper and safer. Previously in unregistered conveyancing, the vendor was required to produce documentary evidence of the past transactions over a period of 15 years to prove that he was the owner of the estate that he was selling. Registered conveyancing seeks to eliminate such lengthy inspections of deeds by putting in its place a register that can be inspected and prospective buyers can find a description of the land, the name of the registered proprietor and any third party registrable rights. The purchaser should at this stage have a complete up to date picture of the title of the property and if accompanied by a search of the local land charges register and a physical inspection of the land should afford adequate protection to any potential buyer. This system, however, is not perfect and certain rights are not registrable and may not be discovered even with the other checks
Landlord and Tenant Law
Unit: Landlord and Tenant Law 'The difference between 'repairs' and 'improvements' is of great importance in the context of landlord and tenant law, but the case law on the subject often makes it difficult to clearly distinguish between the two.' Explain and discuss, with particular reference to relevant case law. Within the context of landlord and tenant law, a major issue relating to the renting and letting of property is that of repairs, maintenance and improvements. A tenancy agreement with a repairing covenant can deal with these matters so that the tenant and the landlord are aware of their responsibilities. In relation to tenancy agreements of residential property, the parties' freedom to act is substantially determined by statute, in particular by the Landlord and Tenant Act 1985. In respect of tenancy agreements for commercial properties however, the parties are largely free to agree their own repairing obligations. Thus it is crucial that the terms of the tenancy agreement are carefully worded in order to avoid ambiguity. However, the distinction between a 'repair' and an 'improvement' has become blurred and where disputes have occurred, both tenants and landlords have sought redress in the Courts. Mackenzie & Phillips (2008 p199) state that, "Every lease, even the most informal, contains provisions which define the obligations of the landlord and tenant
This problem question deals with the law of adverse possession of land.
This problem question deals with the law of adverse possession of land. In order to advise Jason as to his position, the principles that govern this area of law must first be identified. Once identified, these rules can be applied to the specific situation at hand. The idea behind adverse possession is that of title by long possession. It is an accepted commentary that 'certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed'.1 Under the rules of property law a person who takes possession of land immediately assumes property rights over all but those persons who, like the landowner can assert a better title.2 The law of adverse possession makes it possible for this person to become the legal owner of the land through mere lapse of time by extinguishing the title of the paper owner if he does not take action to recover his land within a given time period. The policy behind this rule is that 'those who go to sleep upon their claims should not be assisted by the courts in recovering their property'.3 Before there can be a successful claim of adverse possession certain statutory and common law requirements must be fulfilled. The statutory rules are found in the Limitation Act 1980. The legislation says that no action can be brought by a landowner to recover his land after the expiration of twelve years from the
Within the relationship of landlord and tenant, the obligation of the tenant to pay the rent due under the lease is absolute(TM)
Unit: Landlord and Tenant Law 'Within the relationship of landlord and tenant, the obligation of the tenant to pay the rent due under the lease is absolute' Explain what is meant by this statement, with particular reference to relevant case law, and consider how far it may be regarded as a completely and comprehensively accurate statement of the law. The law regarding landlord and tenant is wide-ranging and can be complex. In all contracts between a landlord and a tenant, the spirit of the lease or tenancy agreement is that the landlord shall give to the tenant 'quiet enjoyment' of his insured premises, in return for which the tenant agrees to pay rent. In most cases, the lease will usually state, "how much rent is to be paid, when it is due and whether it is to be paid in advance or in arrears." Clarke and Greer (2008, p144) Rent is a periodic payment for the use of the land and not for the premises built upon it. Furthermore, Wilkie, Luxton, Morgan & Cole (2006, p118-9) note that rent may be payable in kind or more usually in service, where the property is leased in return for the tenant's services. Sparkes (2008 p552) states that, "although usually payable in money, payment could take any other form - rabbits, bottles of wine, red roses or gold." Directgov (2008), the official government website, state that leases or tenancy agreements can be residential or