Land Law Lectures - Lecture notes 1-10 PDF

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Thursday, October 5, 2017 Registration Registration and Market Logics B’s interest Acquisition in the Market o Appears on the register o Strands of economic potential o C’s informed market calculation Acquisition outside the market o Social more than an asset  Arises at Common law o Property in lan...

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Thursday, October 5, 2017 Registration Registration and Market Logics  

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B’s interest Acquisition in the Market o Appears on the register o Strands of economic potential o C’s informed market calculation Acquisition outside the market o Social more than an asset  Arises at Common law o Property in land is a produce of behavioural reality or socially constituted fact. o Example: Prescriptive easement o Equity- constructive trust  Has to do with fairness  Social and moral consideration B’s interest- defences o Do you have a defence over them having priority? o Overriding interests

Registration 2: Creating and transferring rights in the market The conveyancing dance 

Conveyance o Clumsy due to obstructive practices of lawyers and the such o Layering new reforms o New sets of rules are layered over what’s already present

The buyers experience: 1. Before 2. Exchange Exchange Agree on the That’s when you commit and you can’t price and that pull out. someone will buy. Money: you don’t pay anything

3. Completion When you move in

you

pay

4. Registrati on Land Registry

Money: you pay a deposit. 5%-15% Paid by the buyer to the seller

Money: balance

the Nothing happens

Rules: Entering a contract  Standard conditions of sale (5th edn 2011) Risk (Condition 5.1.1) Passes to the buyer upon exchange. You take out an insurance policy Formality:  S2 LP (MP) A 1989  For the sale or creation of any interest in land.  Writing + signature Exchange

Traditional Transfer of legal title passes.  Transfer of title  Formality: s52(1)  You don’t LPA 1925- done by get legal deed. It became title until part of your title it is deeds. The process registere To show the deed d. to future buyers was called completion. Modern registration  Nothing happens

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Evidence S2(3)

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S52(1) LPA 1925 The deed is now instructions to land registry.

There is a registration gap between completion and registration. The rules in equity: 1. Exchange Remedy: Specific performance Maxim: Done that which should be done Proprietary claim in equity Property:  Proprietary claim in equity.  Scott v Southern Pacific – puts a question mark over how far we can say that the buyer acquires an equitable right on exchange of contract.  Proprietary claim in practice X – Substantive- minor interest Procedural- official search priority period Electronic conveyancing   

Closing the registration gap Chief purpose of the 2002 Act Privatisation

Friday, October 6, 2017 Registration 3: Pye v UK and Adverse Possession Pye v UK and Adverse Possession Basics: 

Squatting- takes possession without consent of the owner and keeps hold of it for 12 years. Your right to keep it becomes unchallengeable.

Pye v Graham    

Land was used by Graham for grazing cattle. HC- Neuberger for the Grahams CA- for the Pye’s HL- for Grahams

Adverse possession

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o You need factual possession plus an intention to possess (without permission) o Stripping away a number of glosses Glosses: o Ouster o Leigh v Jack inconsistency  For adverse possession required not only factual possession and intention, it also has to be inconsistent with the intention of the owners. o Intention to own  On the part of the Pye’s o Willingness to pay  On the part of the Graham’s Property in ECHR o Making property a human right o No one shall be deprived of his possessions o Domestic law that also controls the use of property

Decisions:       

Chamber- found for the Pye’s Grand chamber for the UK Mr Graham got to keep the land Control of use, not deprivation. o Compensation not required Balance within the margin of appreciation HL-Reasserting strong adverse possession despite dislike ECtHR- compatible with ECHR despite dissents

Graham won! - squatters get to keep the land Traditional adverse possession   

Counter-intuition Subversion Property: margin & centre

Intuition- Prescriptive acquisition of easements Stage 1 

0-20 years as of rights

Stage 2 

From 20 years easement established

Dominant- Graham Servient- Pye First 20 years, no easement. After 20 years there is an easement. That is called Prescription Adverse possession  

 

Title commences when they go into possession. o Graham- nothing is happening after 12 years. They already have title. The change happens to the title of the original owner o The Pye’s o They have title for the first 12 years of adverse possession then LA 1980 gets rid of their title after 12 years  The label is called limitation. o Relativity of title  The original owner has the better title for the first 12 years. After 12 years, the Graham have better title because the Pye’s title no longer exists Adverse possessor- claim based on tracing back possession through time o Original, sometimes + derivative Original owner- claim based on tracing back possession through time o Normally derivative, through title deeds

Possession as the origin of property- Rose Opposing concept of property Registration 

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LRA 1925 – Adverse possession accommodated o Same result at stage 2  Registered proprietor loses  Despite no enthusiasm o Different mechanisms  S17 limitation act 1980  S75 Land registration act 1925 o Mirror principle of registered land  Who does it say on the land register is the proprietor? Land Registration Act 2002- Adverse possession annihilated o Different results at stage 2  Notification and veto- 6 months/2 years  Sch 6 para 5 conditions  Equity by estoppel  Some other reason entitled to be registered  Boundary and reasonable belief o Priority triangle

o o o

o

 Sch 3 para 2 [only] Anti-squatting Conveyancing difference  Idea that unregistered conveyancing is different from registered conveyancing Conception of property  Basis of title to unregistered land is possession.  When registered the basis is the registration Challenge at the centre  Rose  Communication of intention.  Annihilation?  LRA Sch 6 para 9(1) o Extinguishing the title arising from adverse possession o But acknowledges that even in modern registered land, when squatter goes into possession, they acquire title

Thursday, October 12, 2017 Context lecture: Squatting *Look at accompanying notes and explanations on the pdf version of this lecture Squatting 

Entering into possession of land which you do not have legal title

Pre-2002   

Traditional adverse possession Squatters rights and the criminal law Highlight that understandings of squatting was different

Traditional adverse possession Relativity of title:  

Adverse possessor begins to accrue title IMMEDITELY as soon as they enter into possession. After 12 years, the adverse possessor has better title.

Key concept: A land law right can be based on Tort/Criminal Law wrong  

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Constitutive effect of empirical fact Intrusion with a self-righting quality o Wrong that rights itself  Trespass that becomes a title Land law privileges a certain kind of land owner o attentive, present, maintains land, in touch Keep the market moving, keep facilitating (Birks)

Surrounding law (still in force) 

where squatting displaces residential occupier o Can ask squatter to leave and call police  Criminal Law Act 1977 s7

2002-2012 Reminder: LRA and adverse Possession      

After 10 years, can apply to be registered proprietor Current RP and registered charge holders notified If they oppose you, you’re refused If no one opposes, you become RP Becomes a lot harder to gain adverse possession. Moral preference underlying it.

Criticism and Commentary: LRA 2002  

Major changes isn’t just practically but also about shifting moral responsibility. Pye- Neuberger – general unease around law of adverse possession

2012 

Squatting on residential property is criminalised o Legal Aid, Sentencing and Punishment of Offenders Act 2012 s144

Most legal professionals regarded the move as unnecessary and puzzling. Case: Best v The Secretary of State for Justice [2015]

Friday, October 13, 2017 Registration 4: Ives, Chaudhary and Sch 3 Introduction: Ives, Chaudhary

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Pye

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o Adverse possession o A’s interest o Social fact o Common law Ives, Chaudhary o Estoppel + Mutuality o Looking at B’s interest rather than A. o Fairness o Equity

Basics 

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Estoppel - Rights generated when there is detrimental reliance on an assurance o Assurance  Some kind of promise o Reliance  You act on reliance to that promise o Detriment  To your detriment Mutuality o “S/he who takes the burden of an agreement must take the benefit” o Based on an agreement.  Fairness in relation to a bargain

Very much like a unilateral contract. Ives Facts: 

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Mr Westgate o deal: foundations / overlooking / right of way o oral + letters o did not get an easement or put the right of way on the register Mr and Mrs Wright o inferred they knew o the garage o the resurfacing Ives Investments o bought subject to the right of way o seeking injunction

Estoppel:  

Westgate o assurance + reliance + detriment Wrights o acquiescence + reliance + detriment  “equity arising out of acquiescence”

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Ives Investments? o Lord Denning “… available not only against the Wrights but also their successors in title.” o LRA 2002 – s116 “It is hereby declared for the avoidance of doubt that … (a) an equity by estoppel … has effect from the time the equity arises as an interest capable of binding successors in title.”

Is C bound by the Rights of B, granted to B before C acquired the title? Mutuality 

Ives Investments?? o “He who takes the benefit must accept the burden”  Look at C’s conduct. What is C doing?  Are they taking the benefit of a prior agreement? Yes then they must take the burden. o Different from priority triangle  Does not focus on B’s rights but on C’s conduct.

Chaudhary Facts: 

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Staircase o V’s land o C’s money Sale o VY o Y stops access

First instance: 

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For C (injunction) o V  e/easement by estoppel Y o Sch 3 para 2 o constructive trust

Court of Appeal: 

For Y o

V

o

Y



not appealed

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Sch 3 para 2: use not occupation c/trust: no new obligation

 Use of LC271 / LRA 2002 Relevance to c/trust

Schedule 3 and overriding interests 

Title by registration and market logics

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o s27- main source of legal property rights o creation in the market Overriding interests – bind you but don’t appear on the register o Tension o reduction / retention  para 2.25 LC271  interests should be overriding where it is unreasonable to expect them to be protected in the register.

Sch 3 para 1 “A leasehold estate in land granted for a term not exceeding seven years, except for […future / social housing]” 

Changes: Reduction from 21- 7 years

Covers:  

Most housing lets Some commercial

Sch 3 para 2 “An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for …  

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; an interest o which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and o of which the person to whom the disposition is made does not have actual knowledge at that time ”

Changes:   

Rent Reasonable disclosure notice

“An interest belonging at the time of the disposition to a person in actual occupation, Covers   

Non-specific - any interest Use is not occupation Significance owner occupation (below)

Sch 3 para 3 “legal easement or profit a prendre   

not with the actual knowledge would not have been obvious on a reasonably careful inspection or has been exercised in the period of one year”

Changes:   

Removal equitable Remove express – s27 Notice or recent use

Covers    

Prescriptive Implied NOT express NOT estoppel

General changes: 1. Reduction mirror / title by registration a. Medium length leases b. Undiscoverable occupants c. Express easements 2. Principle - B’s position “… interests should be overriding only where it is unreasonable to expect them to be protected in the register” a. Concessions from market logics i. social fact – prescription (but a/p) ii. fairness – estoppel (and trusts below) b. Application of market logic i. short leases 3. Principle - C’s position

Owner-occupation 1: FoP recap Basics Simple example: Lorna and Nick Holding a trust for Paddy (their son)  

Lorna and Nick- are the trustees, have the legal title and are the registered proprietors. They provide the management and conveyancing. Paddy will be the beneficiary of trust. He has a beneficial interest (equitable interest)

Types of trust:   

Trust of land express / constructive Statutory

Arising: 

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Express declaration o s53(1)(b) LPA 1925 o LR TR1 (&JO 10) Non-expressly (we will focus more on these in this module) o children & mental capacity o Co-ownership – ‘statutory trusts’: more than 1 person involved

Arising: 

Co-ownership: how- More than1 person? o legal title  People get interest only in express transactions only: conveyance, rp o beneficial interest o should arise through [express declaration] o but can also arise through constructive trust

Co-ownership  

Usual o Lorna and Nick holding on trust for themselves. Also- Nick on trust for Lorna and Nick.

Forms:  

joint tenancy o There is a right of survivorship tenancy in common o co- owners holding undivided shares (it is heritable) o It is undivided and separate shares not in land but in money.

Law and equity: 

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at common law o joint tenancy only o market facilitation in equity o either

The difference: In death. Assume Nick has a will that says everything goes to Ian. Co-ownership

Likely situations: 1. Two trustees, beneficial joint tenancy a. What happens is Ian gets nothing and Lorna gets nothing. The survivor keeps everything and the will is ineffective. 2. Two trustees, beneficial tenancy in common a. In equity they hold for themselves. At Common law Lorna is now sole trustee but there isa separate undivided share that can be left to Ian. Lorna holds for herself and Ian. 3. Single trustee, beneficial tenancy in common a. The will leaves Ian holding on trust for himself and Lorna. Severance Moving from Joint tenancy to tenancy in common  

not partition s36(2) LPA 1925 o + Williams v Hensman

When you die it is too late. inter vivos only – in life can convert from joint tenancy to tenancy in common. in equity only- not common law. Relations ToLATA 1996 – governs land. The way it structures relationship between trustees and beneficiaries.  

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Trustees o s6(1) ‘all the powers of an absolute owner’ BUT Beneficiaries o s11 consultation o s12 normally have a right of occupation  s13- the trustees have powers to exclusion and restriction  s13(7) the trustees do not have a right to exclude a beneficiary who is currently in occupation Court s14 applications & courts have a discretion Bagum v Hafiz (2015) s15 the courts are given guidance and there are factors the courts should take into account. o Factors such as welfare of any minors.

Sale 

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Over-reaching o Title held by A1 and A2 (2 trustees). Lorna and Nick hold title to land. There is a beneficiary (B) who has a right over the land. The land is sold to C. what is the priority relationship between B and C?  C shall have priority.  The beneficiary’s interest is overreached. It does not disappear. It becomes converted from land into money. Overreaching in 1925 o Seen as a mechanism of market facilitation  Reflected in the principles of land registration. o curtain principle  a beneficial interest shows up in the form of restriction but not notice o tenure o co-owners as landlords

BUT owner occupation …

Thursday, October 19, 2017 Owner occupation 2 – Constructive trusts Recap 

Express declaration of trust o If you are buying property with anyone, then make an express declaration of trust. o s53(1)(b) LPA 1925 o LR TR1 (&JO 10) o Possibilities:  Lorna and Nick are joint tenants in common law and having a trust as joint tenants in equity  Lorna and Nick holding trust in common

What happens to ownership of land when there is No express declaration? 2 possibilities:   

Depends on who takes the legal title. If there is sole legal title, If there is an absence of express declaration.

What happens when a couple buys a house together and it is registered in their joint name? Constructive trust 

Common intention of the parties o This area of law is judge-made

Is it really about common intention?  

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express declaration - s53(1)(b) express bargain (constructive trust) o Even though there is no express declaration. o Situation when parties come to an agreement about who will take share in property in equity- but no formal steps taken under s53(1)(b) implied bargain o where the courts are focusing on the parties intention, looking at their conduct, and try to work out the common intention from what they have done. o 2 issues:  objective intention and excuses  there is an expressed common intention.  People making excuses will be held to their excuses.  Imputation  You can infer that they have a common intention  You can input an intention that they did not have. o What would have been there intention IF THEY thought of that?

Moving further from what the parties intended and into the courts idea of what should have happened in the case. Constructive trusts of land Distinguish from:  

institutional o Westdeutschebank protect existing subsidiary o Binions, Ashburn-Anstalt, Chaudhary v Yavuz

Resulting trusts and Estoppel Sole legal title (First thing you do is count the legal title holders.) If there is a single title holder,  

Starting point o N solely entitled beneficially Onus on o L to establish any beneficial interest

Idea of equity following the law. Sole legal title - history   

HL inconclusive o Pettitt, Gissing Rise of the remedial constructive trust o Eves v Eves, Cook v Head etc Retrenchment o Burns v Burns o Lloyds Bank v Rosset

Sole legal title: Lloyds Bank v Rosset Common intention: 1. Evidence of discussion + detrimental reliance a. The evidence of discussion can be seen as an express bargain. – or – 2. Inference from conduct: (in the absence of evidence of express bargain) a. the only basis for that is a ‘direct financial contribution’ i. Implied bargain constructive trust You either talked about it or you make a direct contribution. Sole title: post-Rosse...