The Land Registration Act

Introduction

The Land Registration Act certainly goes some distance towards providing a functional regime for the regulation of transaction with land.

From The April 1st 1998, all conveyances of freehold or long leasehold estate are subjected to registration at HM Land Registry. Therefore, as the question indicate Roberta has purchased the property out right, thus, may not be subjected to first mortgage of the title of the land, However, this will “trigger” a compulsory first registration of the title at Land Registry furthermore, any subsequently newly created registered title will be added to Land Register.

The consequences of Roberta failing to register the title when required will revert back to her grandma who is the transferor {see s7 Land Registration Act 2002.} The question highlights that Roberta has purchased land which is unregistered. This simply means; viz, that title to the land is not located in the Land Register established by the Land Registration Act, but rather it is located in the old fashioned title deeds. In short, land title which is not registered.{Dixon, 2002}.

Prior to Roberta purchasing the unregistered land there were various third party proprietary interest in existence on that land. In particular, the issue of finder title, possibility of an Easement, can the fixture and fittings be removed from the cottage, constructive trust, the disposition of property upon death, possible lease and restrictive covenant, lastly the transfer of ownership of personal loan.

Therefore, the primary aim of the essay will be to establish whether such interest will be binding or enforceable upon Roberta furthermore what the third parties would need to do to make the their interest enforceable against the new owner (Roberta).

The land in question is unregistered; therefore, the enforcement of these interests will be governed by different rules. The application of the appropriate rules will rely heavily upon whether the interests are legal or equitable in nature.

For example, where the interest is a legal interest generally, this will bind anyone who comes to the land or on the other hand if the interest is an equitable interest this will not necessarily automatically bind anyone who comes to the land.

In the cases of equitable interest the enforcement will rely largely on the type of interest. For example, if the interests are registrable as a land charges in that case it will be governed via the rules found in Land Charge act 1972.

If the interests are capable of being overreached, then in that case it will be governed by the condition for overreaching which is located in Section 2 and Section 27 Law of Property Act 1925.

If the interests are not registrable as a land charges or capable of being overreached or where capable, but overreaching has not be successful the enforcement will be dependent on the doctrine of notice.

Main Body,

Finder Tile (Sunday)

The Latin maxim, which was coined by Accursius in the thirteenth century Cuius est solum, eius est usque ad coelum et ad inferos {the owner of the land owns everything up to the sky and down to the centre of the earth} may apply here to the oddments left by Roberta’s Granma. Even if the oddments were lost or hidden, in certain circumstances as the landowner Roberta will be entitled to things which are found in or on her land even if they were lost or hidden.

The law in this particular area provides vivid demonstration of the infinitely gradable character of the common law concept of property.

Property in resources is never absolute, but only relative (Kevin Gray, 2000).

In the case of rings {here after chattels}, there is an identifiable owner to the chattels which were found on the land surface {See Bridge V. Hawkesworth (1852)21 LJ QB 75}.

Roberta will take priority over any actual finder {Her Mother}, but only if, prior to the chattel being found, Roberta had made it plain her intension to control the land and anything else that was found on it {Waverly v. Fletcher[1995] QB 334}.

This particular element of animus is a fundamental component of the prior possessory title needed to defeat the finder it.

It is not essential for Roberta to demonstrate an intension to exercise control over the particular chattels in question which is subject to that claim. Although, it would be suffice that control would be asserted generally over the property and the things in it.

The intension may be found to manifested either expressly or impliedly {Parker v. British Airways Board[1982] QB 10004

We are not given the full fact of the case. Therefore it is difficult to determine whether or not Roberta’s Mother has hidden the chattel there, believes the chattels to be lost {Rv. Ellerm [1997] 1NZLR 200} or has simply abandoned them {Hibbert v. McKiernan [1948] 2 KB}. Nevertheless, although may be difficult to establish if Roberta can demonstrate a pre-existing intension to assert effective territorial control Roberta may acquire “special Property” in any chattel found on her land.

The doctrine of abandonment has been mired in controversy for many centuries. The ownership of a chattel may be divested by abandonment provided that the original owner Roberta mother intended to renounce their title furthermore, the chattels received or reduced into lawful possession of another.

Until or unless this occurs, title to the chattels remains abandoned. The abandonment of the chattels in question is therefore successful only if or when it generates at least a possessory title in someone else. The instant case the chattels will compromise n a res nullius.

Prima facie, the fee simple owner is, entitled to chattel found on the land, treasure, however, is an exception to this rule. Under the Treasure Act 1996, treasure vest, subject to rights or priors interest, in the crown.

The act defines treasure to include any objects which is at least 300 years old when found which:

(a) is not a coin but has metallic content of which at least 10 per cent by weight is precious metal;

(b) when found, is one of at least two coins in the same find which are at least 300 years old with the same percentage of precious metal as above; or

(c) when found, is one of at least ten coins in the same find which are at least 300 years old.

In addition, a further class of treasure which includes objects which are at least 200 years old and of outstanding historical, archaeological or cultural importance designated by the Secretary of State.

If the coins which would have been treasure trove if found before the commencement of the Act, will also fall within the definition.

Thus, Subject to this, the Crowns claim depend on the coins comprising treasure furthermore where the treasure falls into any of the above definition will therefore qualifies as treasure

On the presumption the coin were found recently, they may belong to the crown as treasure under the Act, subject to prior interest rights under s 4(1)Treasure Act 1996. Any Prior rights or interest include any of those rights include any or which derive from which were held when the treasure was left and found.

The successor of title to the owner of the property at the time it was left or deposited in the grounds would have prior interest; if the coins have been on the earth for less than 200 years then there will be less likely for such claim.

If the coins falls outside the designation for example if the coins are metallic then will not be treasure. If the coins are solid Gold or falls within s 3(3) Treasure Act 1996 therefore qualifies as treasure.

Where Roberta finds the coins that her Granma has given to her if she believes or has reasonable grounds to believe that these coins are treasure then she must notify the coroner for the district in which they object was found this can be 14 day from the date it was found of 14 days are from.

S.8 Treasure Act 1996 failure to comply with these requirements is consider to be a criminal offence, thus punishable by a fine or imprisonment or both.

If it is established that the treasure was vested in the crown then coins will be transferred to a museum furthermore the secretary of state will determined whether or not to issue reward to museum or Roberta. However, the amount of the reward will not exceed the market value of the treasure.

The short court arrangement between Agnes and Dora constitutes as an easement which is a proprietary interests in land, viz, the benefit and burden may pass to subsequent owners of the two pieces of land which is involved.

This easement is a right which makes the use of Roberta’s land more convenient or benefits or which accommodates it in some way. As it is a right that is imposed over someone else’s land, it follows that it imposes a burden upon that land.

There are four characteristics of an easement were defined by the Court of Appeal in Re Ellenborough Park ([1956] Ch. 131|). Firstly, there must be a dominant and a servient tenement (the dominant tenement carries the benefit of the easement and the servient tenement carries the burden); secondly, the easement must accommodate, or benefit, the dominant tenement; thirdly, the dominant and servient tenement must not be both owned and occupied by the same person; finally, the right must be capable of forming the subject matter of a grant – the owner of the servient tenement must not be deprived of too many of their rights.

In relation to the formalities, section 1(2) of the Law of Property Act 1925 states that an easement is a right ‘that is capable of subsisting or of being conveyed or created at law’, this simply means, that it is capable of being a legal interest, but can only be legal if ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’. Furthermore, section 52 of the Law of Property Act 1925 provides that a conveyance of land or of an interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed.

Therefore, for the easement to be a legal easements it must be granted by deed. However, the question indicates that the easement is for “life” but an easement cannot be created for an indeterminate period other than in perpetuity, thus can only take effect in equity. Even if the document found at the property constitutes as a Deed the registration of the easement is merely an equitable easement. Registration will take place in the Property Register of the title to the dominant tenement and the Charges Register of the title to the servient tenement.

Easements may also be expressly reserved; where Roberta Grandma sells land, they may wish to reserve or keep back certain rights in their favour. Again, this involves a clear and express agreement between the Roberta and her Grandma as to the rights that are to be enjoyed over the servient tenement.

In an ideal world, all easements would be expressly granted or reserved; by examination of the deed of conveyance or entries on the register of title. However, there are certain circumstances in which the law will imply an easement.

All others are equitable easements and must generally be registered to be enforceable against a purchaser. Under section 62 of the Law of Property Act 1925 , when land is conveyed, all easements appertaining to it automatically pass with it without the necessity for express words in the conveyance

Fixture And Fitting- If He Can Take It Out Of His House (Tuesday)

If that the items were not expressly mentioned in the convincing documents, whether Jeremy can legally recover the kitchen cabinets will depend on whether they are classed as a fixture or a chattel.

Section 62 of the Law of Property Act 1925 confirms this distinction in English law.

Fixtures are physical objects which assent to the realty. Any physical object classed as a fixture as a matter of law merges with the land furthermore title to it will automatically vests in the owner of the freehold. The object itself cannot be severed from the land by anyone other than the freehold owner.

Prima facie, Roberta is entitled to all fixtures on the land at the date of exchange of contracts. Therefore, if Roberta can show that the items are fixture then she should be able to recover the Kitchen as title would vest in them.

Chattels are physical objects which retain their independent character as personality regardless of the close association with realty. Thus they do not attach to the land and do not pass with a conveyance of the land except if it is stipulated in the conveyance. Therefore, if the kitchen cabinets are judged to be chattels, title to the Kitchen cabinets would have been Jeremy’s throughout. He would have been perfectly entitled to remove the items and Roberta would not be able to recover them.

The fixture and chattel distinction has two distinct but connected tests which attempt to assess the intention of the original owner of the object at the time it was bought into close association with the realty.

The first test concerns the physical degree of annexation to the land. The more irreversibly and permanently the Kitchen is affixed to the land the more probable it is considered a fixture.

A form of gravity test for a chattel has developed out of this, viz, an object that merely rests on the land due to their own weight will be classed a chattel, and furthermore one more permanently fixed will be classed as a fixture.

In the case of Holland v Hodgson (1872) spinning looms bolted to the floor were classed as fixtures, in contrast to Hulme v Bingham (1943) heavy machinery otherwise unattached was considered a chattel.

The question indicates that there is a range of the kitchen which is “Built-in” depending on how it is attached say to the floor or walls. It would seem that based on the application of this test, that range of the kitchen would be considered fixtures.

But in turn would base on how they rested on the land. In Botham v TSB Bank PLC (1996) kitchen appliances that were only connected electrically to the land which remained in position by their own weight were considered to be chattels by applying this test. Therefore, where the question indicated the range of the kitchen to be “free standing”(regardless how it is connected) would more than likely to be considered to be chattels, The more permanent manner the a range of the kitchen which is “Built-in” would likely be fixtures. (Botham v TSB Bank PLC (1996) 73 P & CR D1, CA).

Gray and Gray argue that the trend in recent case law suggests the above test is being overtaken by an alternative test concerning the objectively ( Elitestone Ltd v Morris (1997) 1 WLR 687, HL) understood purpose of the annexation.

The key question is whether the installation of the kitchen was intended to effect the permanent improvement to the realty or was merely a temporary addition to the realty intended to enhance the enjoyment of the chattel.

It would seem that the installation of Kitchen was temporary addition to facilitate the enjoyment of Rose Cottage whilst the Grandma was in occupation. Rather than a permanent improvement to the realty, Thus Fred and Wilma appear to have a strong chance of establishing that half of the items as fixtures, title to which then passed to them with the conveyance of Rose Cottage, and thus they would be entitled to recover that element from Jeremy. However, in reality it would be impractical to have a half a kitchen to the functionality of a kitchen. The options available under the circumstance would be to either ask Jeremy for a like for like swap for part of the kitchen which is “free standing” or even whole of kitchen on the other hand she could keep the kitchen as a whole and compensate Jeremy for the “free standing” elements of the kitchen.

Constructive Trust,

The original transaction between Roberta Grandma and David appears to purely oral. There is a logical differences between Roberta Grandma saying “ I promise to grant you this land” and “I grant you this land”. Thus begs the question of two possible interest in land either there will be two limitation Broad principles namely, that a contract or informal grant of right whether or not it will create a right in Rose Cottage or a constructive trust both will be discussed in the alternative.

There question does not give us any dates as to when David occupied the property. If David entered into this contract prior to 27th September 1989 for contract of formal grant which, will be deemed to be a contract. Therefore, an equitable interest which will be enforceable against the new owner {Roberta} The contact or the formal agreement must be in writing or evidence in writing or oral but with part performance

A fairly modern example of this illustration can be found in Mason v Clarke (1954) 1 QB 460 (1937) 57 CLR 555. Therefore if the nothing further had happened, David will be may be able to claim an equitable interest. However the fundematal factor in Mason was the traps. Therefore if it is based amount of time, expertise and effort which that David had put into the restoration project this may constitute on part performance an therefore he would have a claim.

However if contract was created after the 26th of September 1989 all contract and transfer of interest will be governed by Law of Property (Miscellaneous Provisions) Act 1989. The contrat or informal grant must be in writing signed by both parties. Any contracts or other land transcation which are oral in nature and unsigned will be void. Furthermore any subsequent events will not validate the contract.

If the latter scenario is true then David would not acquire an equitable profit. If there was an oral agreement between them it would be void. For there to be an enforceable equitable interest the agreement between David and Roberta Grandma will need to be in writing and signed by both parties.

Moreover David activities may give rise to a constructive trust interest

The disposition of property upon death, Possible lease and restrictive covenant, transfer of ownership of personal loan.

Bibliography

Kevin Gray and Susan Francis Gray, Land Law 4th edition OUP 2006

Dixon Martin, Title Principles of land law Principles of law series, 4th edition Routledge, (2002)

Website:

http://www.companylawclub.co.uk/topics/faq039.htm ( accessed 27 jan 2010)