Answering a Problem Question in Property LAW PDF

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Answering a Problem Question in PROPERTY LAW The usual Issue, Rule, Application and Conclusion are still the foundation for IRAC but we need to make it more sophisticated now. Resources for answering problem questions:  Seminar prep  Required reading list: Extracts from textbooks, articles published in academic journals, law report of leading cases etc.  Guidance questions on the seminar sheet: how to think about this legal issue, how to focus your reading, pointers to relevant legislation.  Your own notes: before, during and after the seminar  In the exam  Information provided two weeks or so before the exam- one or two words about the topic addressed in each problem question.  Your Property Law Statute Book  The list of cases and statutes  Your revision notes  15 mins reading time. Example: Phrase given two weeks before the exam: ‘overriding rights” From 2016-2017, May exam paper: David was interested in buying Wisteria Cottage from Eric, the registered freeholder. David went to view the cottage and found Francesca living there. When David asked Francesca what she was doing there, Francesca replied, ‘that’s none of your business’. David then asked Eric about the situation. Eric told him that Francesca was his cousin who was staying there temporarily and would be moving out soon, before Wisteria Cottage was sold. On inspection of the Land Register, David found no entry relating to Francesca. He therefore went ahead with the purchase, and freehold title to Wisteria Cottage was transferred to him. However, when David arrived with the removals lorry to move in with his furniture, he found that Francesca was still in occupation of the cottage. Advise David

Answer Identify the relevant legal issues raised by the facts of the case: The freehold title to Wisteria Cottage was registered in Eric’s name, but Francesca was living there. What is Francesca’s position in property law? Now the freehold title has been transferred to David, is he bound by Francesca’s property rights in Wisteria Cottage even though these were not registered (are they overriding rights?) (Hint- when answering property law problem questions, map out who is who and who has the various property rights)  What are the relevant legal rules? The ‘rule’ is the relevant law, meaning case law, statute or both. lIst of cases and statutes: o Unregistered interests that override registerd interests: o LRA 2002, Schedule 3: overriding interests o Chhokar v Chhokar [1984] o Malory Enterprises Ltd v Cheshire Homes [2002] o Chaudhary v Yavus [2011] o Link Lending v Bustard [2010] o Thomas v Clydesdale Bank Plc [2010] MAKE A PLAN BEFORE YOU START TO WRITE!  Use the 15 minutes reading time (and more if necessary, to plan out your answers)  Many Property Law problems, like this one, raise more than one interlinked issue; meaning that following IRAC is not so simple.  It is usually easier to structure your answer as a series of steps, reaching a mini-conclusion to each step- although of course, each of the IRAC elements must be addressed at each step.  Start with the introduction The importance of introductions:

A good introduction to the answer to a problem question tells the examiner from the outset that you have accurately identified the issues. There is no need to repeat the detailed facts given in the question. You might start your answer to this problem with: ‘This problem concerns the issue of competing rights in real property and the difficulties raised by the land registration system in this jurisdiction which does not require all rights to be registered.’ Structure and Focus:  Some problem questions provide a ready-made structure for your answer e.g the question might set out the clauses in a will, so you can address the issues raised by each clause in turn. But the Wisteria Cottage question, like many others, leaves it up to you to structure your answer.  Remember to focus on the question, and the issue it raises. Don’t include irrelevant material  Finish by doing what you are asked; in this question you are asked to ADVISE David. What is Francesca’s position in property law? She’s living in Wisteria Cottage, but isn’t the owner:  Could she be Eric’s tenant, or his licensee?  Does she have an equitable interest that gives her the right to live there? Consult your Property Law Statute book:  Which non-registered interests in land are protected by Schedule 2, LRA 2002? [Ignore Schedule 1, as we are told that Wisteria Cottage is already registered]  Don’t copy out any statutory provisions word for word, but make sure of the exact wording and its meaning. Applying the law to the facts, Q1: What is Francesca’s position in property law?  Don’t jump straight to considering ‘actual occupation’ but analyse the issues logically and in turn.  First possibility: could Fran be Eric’s tenant, or his licensee?  The hallmark if tenancy= leasehold, a legal estate in land s.1 LPA 1925 is exclusive possession: Street v Mountford

 A licence is a personal right, merely permission to occupy  Relevant facts: Fran is living at Wisteria Cottage. Eric tells David she is his cousin, staying there temporarily.  As in many problem questions, we are not given enough facts… so point this out in your answer.  Missing facts: how long has Fran lived there, does Eric live at Wisteria Cottage with her, is there any kind of oral or written agreement between her and Eric? First possibility cont…  Only a leasehold estate in land (but not a licence) is protected by Schedule 3, para.1 LRA 2002.  Look at the exact wording- ‘granted for a term not exceeding seven years’  Bonus points for including:  No requirement for a written agreement if the lease is granted for less than 3 years s.54(2) LPA 1925  Only leases of more than seven years need to be registered: s.27(2)(b)(i) LRA 2002 Conclusion to first possibility: Cannot be definite without further information on whether there was any kind of agreement between Eric and Fran, whether made in orally or writing and for how long. Second possibility: does Fran have an equitable interest that gives her the right to live at Wisteria Cottage?  This could be an interest as the beneficiary under an express trust- this type of trust in land must be evidence in writing by the creator of the trust; s.53 LPA 1925, but cannot be registered (does not come within the requirements of the LRA 2002)  Relevant facts: Fran is living at Wisteria Cottage. She is only staying there temporarily.  Missing facts: no mention of a Trust Deed. Schedule 3, s.2 protects an unregistered ‘interest belonging…to a person in actual occupation’  It seems that Fran may have ‘an interest’ (ie.an equitable interest, which is a property interest) in Wisteria Cottage so the next issue to consider is whether she is in ‘actual occupation’

Wisteria Cottage does not seem to be derelict, and it is a residence (e.g not a metal staircase) so Malory and Chaudhary are probably irrelevant: just mention these cases in passing, if at all. The degree of permanence of Fran’s occupation and her intentions are more relevant: cite Chhokar and Link Lending.

SECOND QUESTION- IS DAVID (the new freehold owner) BOUND BY FRAN’S PROPERTY RIGHTS? Consult statue book:  Schedule 3, para 1, LRA 2002 (unregistered leasehold estates) provides no protection for purchasers  But Schedule 3, para 2 (unregistered property interest of someone in actual occupation) does provide some protection for purchasers, which now needs to be considered in relation to Wisteria Cottage.

Schedule 3, para 2(b) LRA 2002: ‘an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so’ is not an overriding interest. Relevant facts: David went to view the cottage and found Fran living there. When David asked Fran what she was doing there, she replied ‘that’s none of your business’ Missing facts: the circumstances in which this Q and A took place. Maybe Eric was there, and Fran is frightened of him? Be creative in exploring all possibilities Irrelevant facts: Eric told David that Fran was his cousin who was staying there temporarily and would be moving out soon. HAVE TO LOOK AT WHAT THE PERSON IN ACTUAL OCCUPATION SAID (FRAN) NOT WHAT ERIC SAID. Finally, conclusions:

 The process of working through the analytical steps is more important than the final conclusion  Remember that you were asked to ‘Advise David’ and write the conclusions with this in mind  There are a lot of ‘missing facts’ in this problem question, so any conclusions must acknowledge this e.g’ ‘It does not seem likely that Fran has a leasehold interest in Wisteria Cottage, but if she can prove this, she has an overriding interest which will be binding on David as the new freehold owner para.1 Sched 3 LRA 2002’ Even if Fran were able to prove she had an equitable interest in Wisteria Cottage, her interest would not be overriding as she failed to disclose it when David asked her directly para 2(b) Sched 3 LRA 2002. However, if she could show that the circumstances made it unreasonable to expect Fran to disclose her interest, it is possible that Fran’s interest would be overriding.’...