itle Land Law Assignment Semester Essay Example

itle: Land Law Assignment Semester Essay Part 1 – The Easement Easements can be hard to specify but in essence consist of rights attached to one piece of land which are exercisable over another piece( Mackenzie, p.495 ). In this instance, Mohammed and Rubina ( M A ; R ) will be trying to asseverate a right-of-way purportedly attached to their freshly purchased registered secret plan of land [ 1 ] which would run over Giles’ land. Easements must normally run into the four demands ofRhenium: Ellenborough Park[ 2 ] in order to be valid. These are: a dominant/servient tenement, diverseness of ownership, it must confabulate a benefit on the servient land, and be sufficiently certain( Gray, p.214 ) .In this instance, Giles’ land would be the servient and M A ; R’s the dominant. However, scrutiny in item is non necessary because a right-of-way is a long recognized signifier of easement,Borman V Griffith[ 3 ]( MacKenzie, p.499 ) .However,the of import inquiry confronting M A ; R is:was this easement granted to them? We will write a custom essay sample on itle: Land Law Assignment Semester specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on itle: Land Law Assignment Semester specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on itle: Land Law Assignment Semester specifically for you FOR ONLY $16.38 $13.9/page Hire Writer It is clear that Gilesdid non expressly allow them a right-of-way and does non now wish to make so now.So, as such, an express grant is out of the inquiry. Hence, M A ; R will be seeking to set up the grant of an easement based on animplied grant. There are three by and large accepted paths to obtaining an easement by implied grant( Gray, p.225 ) . Easement of necessity:we are told that M A ; R can merely entree their piece of land by using the route over Giles’ land. This indicates that their secret plan of land is seemingly landlocked. Hence it could be argued that it is an absolute necessity for the enjoyment of their land that they utilise the right-of-way. Hence, it was frequently though that the tribunals would connote into the conveyance entree to their land( Gray, p.225 ) .However, on closer scrutiny of the facts, there appears to be other possible paths over other land because Giles suggests this in the inquiry. It may necessitate the purchase of other neighbour’s land or the edifice of a route ; but so be it. The tribunals have demonstrated that they will non deliver buyers from what is merely a bad tradeNickerson V Barraclough[ 4 ] The 2nd class is that ofeasements of common purpose ( Gray, p.226 )which we can disregard these as it is clear there was evidently no common purpose whatsoever. The regulation in Wheeldon V Burrows: this would offer hope for M A ; R [ 5 ] . The footing of this philosophy are obiter remarks in the instance ofWheeldon V Burrows[ 6 ] to the consequence that the purchaser of a piece of land will get easements by deduction which are ( a ) uninterrupted and evident and, ( B ) in usage by the marketer for the benefit of the land at sale clip and ( degree Celsius ) moderately necessary for enjoyment of the land. All three of these conditions are potentially met by the private road as it is clearly evident and it was in usage by Giles for the benefit of the secret plan he sold – if nil else it helped sell it to M A ; R by giving them the feeling of entree. Equally, M A ; R can non bask the land if they can non entree it. However, how could Giles hold had an easement on the two secret plans of land when he owned both? Does it non transgress the regulations established inEllenboroughof diverseness of ownership of the dominant and servient lands? This is true, but it is overcome by depicting it as aquasi-easements ( Gray, p.226) . The easement so crystallises into full easement position when the land is subdivided and sold. This evidently goes further than the deduction of an easement based on the purchase – it is the creative activity of something that was non an easement. But what the tribunal is making is halting the seller minimizing from his grant. M A ; R saw the land assumed private road was of course included. This philosophy is, presumptively, designed to forestall sharp’ sellers feeding on guiltless buyers. Finally, our advice is that an easement would probably be granted by deductions underWheeldonand it would be a legal easement instead than an just one because it is implied into a title reassigning legal rubric and as such acquires legal position itself. A few cautions should be stated: inWheeler V Saunders[ 7 ] a feasible entree path was fatal to the claim ; if one could be acquired easy it may extenuate against M A ; R. The right of manner they may get by deduction may be one for the occasional agricultural usage of the secret plan non one for edifice and domestic usage. If Giles had no cognition of their edifice programs and neer used the private road for such intents so how could it be implied into the conveyance? Part 2 – The Restrictive Covenant Covenants are merely understandings contained in a title made between two estate holders where one promises to make, or chorus from making, some act in relation to a definable piece of the other’s estate. In the right idiom one piece of land becomes thedominantland and the other theservientbecause one isbenefitedby the covenanted right and other isburdenedby it( Duddington, p.142 ). It is indispensable to retrieve that compacts are in kernel contracts. Historically, these contracts were used as a signifier of be aftering control leting one party to shape the utilizations put to set down he sold (Gray, p.472) . However, jobs occurred when the covenanter/covenantee has changed. Under the philosophy of privity of contract it is clear that the tribunals would non likely enforce the original compact in jurisprudence [ 8 ] see( Duddington, p.155) A ;Rhone V Stephens.[ 9 ] Using this we can see that M A ; R are non a party to any compact with the original covenanteein the eyes of the jurisprudence. However, it is every bit clear that equity had no such concerns and has conferred a proprietary nature to the rights accruing under certain compacts and positions it as conscienceless that they would non be enforced see( Gray, p.284) A ;Tulk V Moxhay[ 10 ] . So, viewed through equity, it is possible to asseverate that a covenanter and covenantee both have proprietary rights in the servient land [ 11 ] . This is the job confronting M A ; R – Giles is efficaciously claiming a owner right over M A ; R’s land because of thisnegative compact– i.e. negative because it does non necessitate outgo merely that it is complied with( Gray, p.478 ) . The normal path to analyzing such jobs is to corroborate that the load and benefit of the compact has passed successfully to both benefited and burdened land. It is required that both benefit and load will hold passed otherwise any action will neglectSainsbury v Enfield LBC[ 12 ]. The Benefit: We know that Lord Cardigan is the original covenantee as he drew up the compact and it was his lands that benefited from this compact. Giles claims this benefit has passed to his land . However, it is non clear how he is claiming that the benefit has passed to him i.e. has been transmitted – the most likely path is that of annexation( Gray, p.487) . Annexation is the procedure by which the benefits and rights to implement are attached or engrafted onto a piece of land instead than any individual. This could hold occurred in a figure of ways in our instance – Giles might hold merely purchased the full estate from Cardigan or, more likely, Giles purchased a part of the Cardigan estate and as such he is claiming the benefit of the compact has been engrafted onto his land. This would depend on the express diction of the original compact – which we don’t have – but it is really likely that the diction of the compact would hold extended to the full Cardigan estate. And as such could be acquired by bomber estates as perZetland V Driver[ 13 ] andMorrelss V Oxford United FC[ 14 ].Although, the tribunals are every bit willing in certain instancesRe Ballard’s Conveyance[ 15 ]to govern that a compact can non use to big estate as it merely benefits a little part of it. In this instance, it would evidently turn on facts we don’t have – but it is likely that Cardigan was protecting his position of the sea and this may good widen to the whole estate. However, we are told a cardinal fact! This is that the compact was made in 1926 and this clearly points us towards the opinion inFederated Homes v Mill Lodge[ 16 ] which said thats78 ( 1 ) of the LPA 1925would use and that the compact runs with the and for the benefit of his replacements in rubric, individuals deducing rubric under him or them and other proprietors and residents . This would look to copper fix the benefit to Giles estate – there are nevertheless unfavorable judgments of this opinion (Mackezie, p.547) .The critical point is that even if the Cardigan dominant tenement has been later fragmented it does non forestall Giles from claiming the benefit accruing to the dominant land.So it is possible that the benefit has passed. The Burden:The path of the transmittal of the load of this compact is drawn fromTulk V Moxhayand its subsequent developments (Mackenzie, p.541 ) .The demands are ( one ) it must be a negative compact – it is ( two ) that the parties intended the load to run: we don’t have the facts to make up ones mind this but s.79 of the LPA 1925infers this in most instances. ( three ) that the covenantee owned the land at the day of the month of the compact: once more this is evidently so in his instance. ( four ) that the just rules will use in general: the important point here is that M A ; R weregiven notice of the compact by their canvasser. So, likeTulkthey have notice and equity will probably keep this critical. The advice given to M A ; R would be that, leting for facts we don’t have, it is possible that Giles could implement the compact against M A ; R. The redress for Giles would be either an injunction or amendss in stead of an injunction. However, cautions exist: the footing for the determination inTulkis equity i.e. that the act contemplated was conscienceless in equity. However, it might be every bit conscienceless and a breach of the clean hands axiom to let Giles to implement the compact if he knew what M A ; R had in head for the land and efficaciously put a trap. This is reinforced by the fact that if they have begun edifice Giles would hold received presentment of the planning permission and non objected. Part 3 – Adverse Possession In order for Mr. Smith to claim rubric to the disputed portion of M A ; R’s land through a successful claim of inauspicious ownership, he will necessitate to overcome a figure of hurdlings. Adverse ownership of freehold registered land is now governed by a blend of legislative act:Schedule 6 of the Land Registration Act 2002and case in point. Critically this new piece of statute law has well reformed the jurisprudence on inauspicious ownership – and fortuitously for M A ; R it has drawn the teeth( Wilkie, p.25 )of the philosophy of inauspicious ownership. TheLRA 2002foremost requires that there is at leastten old agesofinauspicious ownershipinstantly predating the application to go the registered proprietors.97, Sch.6, Para 1 ( 1 ). We are told Mr. Smith has potentially been in business for approximately ten old ages so it would be of import to make up ones mind which side of the 10 old ages he falls. However, foremost we should make up ones mind if me meets the demand of adverse possession . From the recent seminal instance ofPye V Graham[ 17 ],it is apparent that the phrase inauspicious ownership has a specific intension beyond its normal usage. It requires a brotherhood of both inauspiciousfactual ownershipand anpurpose to possess( Gray, p.151 ) . Factual ownership:It was said in the recent of import instance ofPye V Graham[ 18 ] that this first requires a ownership of the land that is adverse to the paper owner- and non under any signifier of permission from the proprietor. Furthermore, factual ownership requires that the alleged owner has an appropriate grade of physical control and has to be covering with the land as an occupying proprietor might hold been expected to cover with it and that no 1 else has done so.Powell v McFarlane[ 19 ] . Using this to Smith, we can see that he has been croping sheep on land but are told anything concrete about the degree of ownership he has. InPye V Graham, a similar instance affecting graze, the owner padlocked the gate giving him sole entree to the land and utilised it in combination with his ain land on an next secret plan. The important point is non the physical control per Se, but that he occupied and used the land like an proprietor would hold. InTecbild V Chamberlain[ 20 ] the ad ho c maintaining of ponies on a land and the playing of kids was non sufficient to amount to factual ownership. It would be fatal to Mr. Smith is that if other husbandmans besides used the land or if the paper proprietor besides utilised the land as this would turn out Smith had non the needed grade of control. Combined with factual ownership is a demand ofknowing ownership– this has been described inPowell v McFarlaneas the purpose, in one’s ain name and on one’s ain behalf, to except the universe at big, including the proprietor with the paper rubric. This is non an purpose to have but merely to ownership to the exclusion of others( Gray, p.155 ) .We lack any grounds of this either manner. However, we will presume he has the necessary purpose and continue [ 21 ] . Having already established above that Smith is perchance in inauspicious ownership we must now refocus on the clip period of 10 old ages and give our advice consequently: Ten old ages has elapsed:UnderSch.12.para.18 ( 1 )LRA 2002if ten old ages has elapsed so Smith can use for enrollment to be made in this name –it does non count that the registered proprietor has changed per Se, the clock will non halt(Duddington, p.88 ). The land register must so advise all of those on the registrar with an involvement and if they object within 65 concern yearss so usually the claim is suspended( Burn, p.252 ). M A ; R so have two old ages to recover ownership and evict Smith. M A ; R have evidently non received this so you might believe the ten old ages has non elapsed. But it is possible that the 10 old ages has elapsed and the presentment had been sent to Giles or to the incorrect reference. Either manner, Smith has an unregistered involvement in the land which he may desire to exercise. The job so becomes one underSchedule.3.Para.2i.e. those claiming over-riding involvements, which do non necessitate to be registered. In order for Smith to protect any involvement he has under inauspicious ownership it would necessary, at the clip of sale, that he must be in actual occupation( Mackenzie, p.133 ) .Actual business is an elusive term and there is much instance jurisprudence, but sheep roving on to set down to crop would unlikely be ascertainable on a reasonably careful inspection by M A ; R. InStockholm Finance v Garden Retentions[ 22 ] irregular business was held to be fatal,although inKling V Keston[ 23 ] some signifier of declarative presence was held sufficient. It would turn on facts we don’t have – but suffice it to state that if a immense flock of sheep were for good croping on the land at the clip of purchase M A ; R should hold asked whose sheep are those? . Ten old ages non elapsed: If the 10 old ages has non elapsed so M A ; R must confirm ownership and take proceedings to take Smith from the land. The missive to Smith will non halt the clock running on the 10 old ages and if he was in existent business neither will the alteration of ownership. However, the ball is steadfastly in Smith’s tribunal and as the freshly registered proprietors they will be notified. No affair what occurs M A ; R should be protected because of the demand of notice and their ability to object and so take Smith. Theexistent dangerfor M A ; R is that if the ten-years has already run out, or may be about to, and Smith may use for immediate enrollment under the exclusions to the notice period inSch.7.Para5 ( 4 ) ( 5 ) LRA 2002and claim that this is a instance of boundary line difference and as the boundary line was non fixed and that he reasonably believed that the land belonged to him for the ten old ages [ 24 ] . Without farther facts this is hard to judge on, but it would be a concern as it boundary land and if sheep wander it may non be demarcated. Bibliography / Reference Burn,2004,Land Law Cases and Materials, Oxford University Press. Duddington, 2007,Land Law Express, Pearson Publishing. Gray, 2006,Land Law – Core Text Series 4ThursdayEdition, OUP. Mackenzie,Textbook on Land Law 10ThursdayEdition, OUP. Wilkie, 2005,Land Law Q A ; A Blackstone’s, OUP. 1