Property Law - Problem Question

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Isabelle Richard

Property Law

Problem Question


Hamlet is the owner of the registered fee simple estate in Elsinore.  Last year he  granted    (i)  A yearly tenancy of one part of the land orally to Ophelia;    (ii)  A ten year lease of another part in writing (signed by both parties) to  Gertrude;    (iii)  A right of way over a third part by deed to Polonius until Polonius sells  his adjoining property.    Hamlet this year sold his fee simple estate to Laertes, who became registered as  proprietor.  Prior to becoming registered, Laertes inspected the entire land carefully.      However, Laertes had no notice of Ophelia, who was not occupying her part of  Elsinore at all.  Nor did he know about Gertrude’s lease, because, although her  goods and other effects were there, she herself was abroad on a two year ‘holiday of  a lifetime’ world cruise.  When Laertes saw Gertrude’s goods, he asked Hamlet  whose they were, and Hamlet replied that they belonged to Gertrude, and that he was  looking after them for her while she was away.  As for the right of way, its line ran  along a tarmac road which also led to a garage where Hamlet kept his car, and any  marks on the road were equivocal as to their cause.    Advise Laertes as to his position against Ophelia, Gertrude and Polonius.  How,  if at all, would your advice differ if the land were unregistered?


When a third party purchases a legal estate in land a fundamental question arises from the very nature of English property law; because of the potential multiple and diverse rights attached to the estate what does and does not bind this third party? The answer will depend on the nature of the right – legal or equitable, as well as on the nature of the land – registered or unregistered. In registered land the basic rule is that the owner of the prior estate has priority over the buyer of any subsequent estate in the land (s28 Land Registration Act 2002), but until electronic conveyancing changes the face of land law major exceptions still apply (s29 LRA 2002). A registrable interest non-registered, therefore nor excepted from the effect of registration, and not within the ambit of Sch 3 of the Act will be swept away by a registrable disposition of a registered estate for value. In unregistered land the basic rule is that a legal interest binds the whole world while and mere equitable interest binds everyone except a bone fida purchaser without notice but here again matters are not always so simple.

L bought the fee simple estate of the land from H, the original registered owner of it, and while he was unaware of the potential interests O, G and P might have on it. He might still be required to abide by some of them.

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H has granted, orally, a yearly tenancy to O. A yearly tenancy, i.e. a periodic tenancy, has been recognised as a term of years despite the theoretical difficulty to reconcile it with the common law requirement of prefixed maximum duration meaning that it has the potential to be created and have effect at law (Law of Property Act 1925 s1(1)-(2)).

The general rule as stated in the Law of Property Act 1925 s53(1) insists on signed writing for the creation or disposition of interest in land, s52(1) further deeming void ‘all conveyances of land or of any interest therein ...

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