Magoosh GRE

Case Study: Land Law

| March 18, 2015

This farmhouse, disponed as a strict settlement under Pete’s will to Rob, Sam and Tom, is a trust for land governed by both the 1925 Law of Property Act and the Trusts of Land and Appointment of Trustees Act 1996 . When land is owned by two or more people as co-owners they take the property as legal joint owners under a trust of land . In our circumstances the three cousins are legal joint owners under trust of land of the farm house, outbuildings and 10 acres of land. Consequently, they have absolute ownership of the property which is indivisible except by severance and each joint tenant “holds everything and yet holds nothing” . For there to be a joint tenancy in equity the “four unities” must be present: Unity of possession, unity of interest, unity of time and unity of title . The farmhouse is accordingly under a joint tenancy in equity and will be treated as such for this essay.

Can Sam and Tom prevent Vicki from moving into the farmhouse? It is possible for Rob, Sam or Tom to claim a separate share through severance which, being possible in equity but not in law, can be done in numerous ways under section 36(2) Law of Property Act (1925) . Most relevant to our question is “operating on one’s own share” as Rob has alienated his interested in the property by selling to a stranger. The consequence of this act is that he still holds the legal title but Vicki now has an equitable interest in the land and thus acquires protection under the 1996 Act s.12. Sam and Tom are unaffected as between themselves but Vicki can now be regarded as a tenant in common with respect to both of them and entitled to occupancy rights under the 1996 Act .

Vicki is entitled occupy the farm house subject to: the farmhouse’s purpose was to provide occupation , the farmhouse itself is not unavailable or unsuitable for occupation and the right of Sam and Tom to restrict occupation under s.13. Assuming the farmhouse is available for occupation and is satisfactory then the key question here is whether Sam and Tom are able to restrict Vicki’s occupancy rights under s.13. For this section to operate, however, there must be unanimity among the trustees which would still include Rob. Further requirements are that, under s.13(4) they must act reasonably in exercising this power. The criteria for reasonableness under s.13(4) (a) – (c) are: to firstly respect the intentions of the creator of the trust, secondly to have regard to the purpose for which the land is held and finally the circumstances and wishes of each of the beneficiaries entitled to occupy the land under section 12.

appelleThe sole reason which Sam and Tom have given for Vicki’s exclusion, to maintain their bachelor lifestyle, is unreasonable and would fail this section. In any event they must act unanimously and that means that Rob would have to be contacted. Given that he is currently in Antarctica and unreachable, this seems highly unlikely.
William’s claim to title over the Cowshed is based on adverse possession. Because this is registered land the Land registration Act 2002 now governs this area for any adverse possession claims since October 2003 and operates in our circumstances. Any adverse claims before then are still governed by limitations of action under s.15 (1) Limitations Act 1980. The requirements for registered land under schedule 6 paragraph 11 Land Registration Act 2002 are the same as those necessary for establishing adverse possession in unregistered land. These requirements were highlighted in the case of Buckinghamshire County Council v Moran which are; discontinuance or abandonment by paper title owner, adverse possession with intention to possess – animus possidendi.
The starting point for William’s claim is to show that Peter has abandoned or stopped using the Cowshed. This is not apparent from the facts and it is crucial to note that even minor acts to the land could interrupt the possession. In Techbild Ltd v Chamberlain it was held that discontinuance cannot be assumed from the fact that the owner was not currently using the land thus William needs to demonstrate that Peter has stopped using the shed completely. Possession must be “open, not secret; peaceful, not by force; adverse, not by consent of the true owners” . The Cowshed was open to numerous pensioners who came to his discussions: the possession was open, peaceable and adverse. William also needs to show that he used the outbuilding as the owner with the appropriate degree of physical control but this is not clear from the facts as demonstrated in Powell v McFarlane and Pye (JA) (Oxford) v Grahame . He did use the outbuilding several times a week but there do not appear to be any fences erected to establish physical possession and indeed it is unclear if the Cowshed is capable of being enclosed. We know from the facts that William was Peter’s friend and should it be proven, as would seem likely, that consent was obtained to use the Cowshed then there will be no adverse possession and Sam and Tom need not worry about him registering title . Sam and Tom need to prove that their grandfather Pete gave permission to William.

Possession on its own is not sufficient: William would also need to show an intention to possess . Actions such as building a fence to exclude others are considered to be evidence of such an intention as in Buckinghamshire County Council v Moran or changing the locks as in Lambeth LBC v Blackburn . It is chimportant to note that factual possession must be unambiguous: one side intending to possess the land and the other side evidence of present enjoyment of land with no intention to possess . In these circumstances it is difficult to elicit an intention to possess the Cowshed from William’s actions alone although his very action of attempting to register title may suffice for him to have the necessary intention.

William has to show 10 years of adverse possession to apply to the land registry for title after proper notification has been sent to the proprietors . Assuming that William overcomes all the hurdles above in adverse possession and intention, to prevent William from registering his title Sam and Tom must now object to his right to be registered as proprietor of the Cowshed and indeed they have 65 business days to do so and without any date in the facts they should immediately respond. Without a timeous objection William will be registered as the owner of the Cowshed. An objection will usually end the matter unless the registrar believes, on the grounds in schedule 6 paragraph 5 of the Land Registration Act 2002, that the objection should be overruled. Tom and Sam should additionally take steps to evict or stop William from using the cowshed for group discussions and social occasions. Failure to do so within 2 years will entitle William to reapply again and this time they will not get the opportunity to object to the application .
With regards to Zach the advice to give Sam and Tom hinges upon whether Zach can be considered a tenant or a licensee. The crucial distinction between a lease and a licence was made in Street v Mountford by Lord Templeman. A lease exists where the occupier has been given exclusive possession of the property for a definite term in exchange for rent. On the other hand, a licence is an occupancy right which falls short of a lease in one of the requirements. It is also important to consider the exception in Facchini v Bryson where a lease was held not to exist even though there was exclusive possession due to the fact that the lease was based on act of charity. Are the requirements of a lease present here?

There has to be a certain term which is evident here as in Lace v Chantler : the duration of the lease is 7 years. There is no mention of the beginning of the lease but it can be assumed it started upon Zach taking possession of Pigpen. Zach also has to show he had exclusive possession: the ability to exclude others. The written agreement, however, states that Peter had the right to enter Pigpen at anytime and allow other people to stay which undermines the argument of exclusive possession but is not conclusive: Whether he exercised that right or not is also important in establishing whether a lease or a licence was intended. In Antoniades v Villiers a clause which held the licensor was unwilling to grant exclusive possession and was able to bring other licencees to share the property was held to be illusory because ac_003

the right was never exercised and the clause also did not specify the number of people who could be brought to share the property. On the facts of our case it is not clear whether Pete exercised this right.

Finally, rent can also be relevant but not essential as established in Ashburn Anstalt v Arnold : it is possible for a tenancy to be created even when no rent is evident and for our purposes, so long as the two main requirements of a certain term and exclusive possession are fulfilled then it is irrelevant. If Zach does not have exclusive possession, however, Sam and Tom could argue he is a licensee and could therefore evict him.

If the arrangement between Zach and Peter is proven to be a lease then it has the ability to bind the successors, Sam and Tom, as an overriding interest . If, however, it is to be regarded as a licence it may not be binding upon the successors in title . There is conflicting case law regarding whether a licence can be revoked unilaterally by the licensor but Thompson observes that whether a contractual licence can be revoked will be decided by the proper construction of the contract . If it is a kind of licence which cannot be revoked then Sam and Tom could potentially be exposed to an action of specific performance.

The situation with the lease is more complex. This can be established by looking at the nature of the relationship between Zach and Peter rather than what they agreed in writing. Zach has a written document signed by Peter granting him a lease for 7 years which has to be granted by deed if it is to be legally enforceable against third parties. It must satisfy section 1 (2) Law of Property (Miscellaneous Provisions) Act (1989) which states that a valid deed must be clear on its face that it is a deed, signed by the grantor, witnessed and delivered. Zach could argue that it is a registered deed which would make his lease legal and binding on Sam and Tom. If it is binding on them then the way in which it can be terminated will depend upon the type of lease that Zach has. For example if the lease was a fixed term lease there would have to be a break clause which permits the termination of the lease or if it was a periodic tenancy there may be provision for a notice to quit. The notice period necessary will depend on the period of the tenancy for example monthly will require 1 month notice.

If the document was not a valid deed then the lease will not be legal and therefore not binding upon them. This argument can based on the necessary requirements under S.1(2) Law of Property (Miscellaneous Provisions) Act (1989) it looks like the document satisfies only two of the requirements (signed by grantor and delivered). As equity views as done that which ought to be done (Walsh v Lonsdale ) then provided that this written document complies with the provisions of section 2 Law of Property (Miscellaneous Provisions) Act (1989) and is capable of specific performance then it could be consideredalw

that Zach has an equitable lease. However on the facts it says the document was signed by Peter but since there no mention of Zach signing it this suggests that it is not a valid contract as it is not signed by both parties.


Chappelle, Diane (2004) Land Law Pearson Longman: Worldwide
Thompson, Mark P (2001) Modern Land Law Oxford: UK

Williams v Hensman (1861) 1 J.&H. 546 at 557-8
Mulcahy v Curramore Property Limited [1974] WLR 464
Batt v Adams (2001) 82 P&CR 406
Thomas v Sorrell (1673) Vaugh. 330
Smith v Lawson (1997) 74 P&CR 34
AG securities v Vaughan [1990] 1 AC 417
Goddard v Lewis (1909) 101 L.T. 528

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