QUESTION 1
Joint tenancy is characterized by the right of survivorship, which operates of the death of a joint tenant. This type of tenancy is commonly used by parters and spouses buying a house together. The intention of both is that in a situation where one of the spouses outlives the other the survivor will become the sole owner. For the co-owners to be entitled to purchase the property as joint tenants the four unities of possession, interest, tittle and time must be present and this is the case in this scenario.
a)
January 2010
When the property intended for a residential summer camps for children business was purchased, an implied trust of land was created with a legal estate being held by Anne, Belinda, Carol and Diana as joint tenants on trust for themselves and for Ellen as joint tenants of the beneficial interest.The legal estate can only be purchased by co-owners as joint tenants at a maximum number of four trustees.
The remaining persons become joint tenants of a beneficial interest. The transfer title was vested in the four names listed.
All the persons decided to hold their beneficial interests as joint tenants.
June 2010
Belinda agreed to buy Diana’s share in the house. The common intention to sever was portrayed in Hunter v. Babbage [1994] EGCS 8. The course of dealings between Belinda and Diana show that the tenancy from not on should be treated as tenancy in common. This notice severs joint tenancy in equity as the joint tenancy of the legal estate cannot be severed.
As of June 2010 there are four joint tenants of the legal estate, namely Anne Belinda,Carol,Diana equitable interest as joint tenants in equity: Anne, Belinda and Carol make up ¾ and Diane as tenant in common in ¼.
Diane’s death will allow the gift of the property in her will effective as tenant in common at the time of her death. Joint tenancy is characterized by the right of survivorship, which operates of the death of a joint tenant.
The result of Diane’s death is that the legal estate became vested in Anne, Belinda and Carol for the themselves as joint tenants of the legal estate
For Ellen in portion of ¼ as a tenant in common of equitable interest and for Anne Belinda and Carol as ¾ of joint tenancy in equity.
February 2011
Carol severs the joint tenancy in equity by alienation .Carol’s mortgage of her share amounts to severance by alienation.
The co-owner Carol mortgaged her equitable interest to a third party (Rob), this transaction has an effect of severing the equitable joint tenancy.
The legal estate at this point is held by Anne, Belinda and Carol on trust for themselves. Anne and Belinda hold 1/2 of equitable interest as joint tenants, Ellen as well as Rob hold ¼ of the equitable tenancy in common.
March 2012
The notice of intention to sever a joint tenancy was done in a correct manner by Belinda, it was sent to the last known address via “signed for” delivery as prescribed by LPA 1925, S.196(3) and (4) ; Recorded Delivery Service Act 1962, s.1 and Sch. 1 para.1).
Once the notice is served in a correct manner it will be effective and will sever the joint equitable tenancy. The letter was delivered to Anne and was signed by her boyfriend, its of no importance that Anne did not receive it herself. This was established in a similar case of Re 88 Berkeley Road NW9 [1971] Ch 648 where a letter was delivered and signed by the person who had sent it wishing wishing to serve notice of severance to the other joint tenant.
The letters sent to all these women do amount to good service and the joint tenancy in equity should be severed accordingly.
April 2012
On Belinda’s death her equitable interest in tenancy in common is passed by survivorship to Anne who now owns ¼ of equitable interest in tenancy in common, and the remaining being held by Ellen ¼ and Carol ¼.
June 2016
Upon Anne’s death her estate is transferred to Carol who now hold ½ equitable interest in tenancy in common, Ellen holds ¼ and Carol ¼. The legal estate is now held for Carol on trust of land for herself and for Ellen and herself in equity. Ellen remains a joint tenant of a beneficial interest.
Fred, a prospective purchaser must protect himself from trustees. The important aspect is for Fred to buy a property not being subject to a third party rights. For Fred to purchase the property he must follow the correct procedure. The beneficiaries under the trust bound the land in question. The protection offered to purchasers from trustees of land is in the procedure known as overreaching.For Fred to be able to take free of the beneficiaries’ equitable interests arising under the trust of land he will need to impose on Carol to appoint another trustee. Fred then will need to pay the purchase price equally between the trustees.
b)
The Trust of Land and Appointment of Trustees Act 1996 contains various provisions setting out the powers of trustees and the rights of beneficiaries whilst the trust is in existence.
A beneficiary under the trust may apply for any necessary restrictions. If the dispute between Ellen and Carol cannot be resolved amicably, Ellen can apply for an injunction to stop the sale to Fred going ahead. In such situation Ellen and Carol shall apply to court for an order resolving a dispute regarding the sale.
Under s.14 of the Law of Property Act 1925 an application can be made, if the two parties are in dispute in order to break the deadlock. Ellen being a beneficiary could apply to the court under s.30 of the LPA 1925 for an order for sale. The court will make the most appropriate decision in this situation.
QUESTION 2
For a right to be capable of being an easement it must posses characteristics established in a case of Re Ellenborough Park [1956] Ch 131.
These are:
The dominant tenement and a servient tenement must be present and defined.
The right in question must accommodate the dominant tenement.
The owner of the servient tenement but not be the same person who owns and occupies the dominant tenement.
The right must lie in grant, there must be a capable grantor and grantee and the right must have the capacity to form the subject matter of a grant.
a)
Thomas who sold his workshop to Tony squired an oral permission back in 2009 from Satvir.
However, in 2009 Salvir granted a lease to Thomas, perhaps complimented with a mere license to use the the driveway and run a cable to the workshop. Although, there is no mention of the right to run the electricity cable from Lyon Hall to the workshop, the facts need to be analysed to establish whether the right to run the cable can be contested. In 2014 Salvir sold the freehold to Thomas.
First, it should be determined whether the right claimed by Tom to run the electricity cable supplying the workshop is capable of being an easement.
Allison (servient) plans to demolish Lyon Hall therefore cut out the electricity supply to the workshop owned by Tony (dominant). Tony who claims the right need to show that the supply of electricity enhances enjoyment of his property as well as the fact that its sufficiently connected with the land itself. The workshop is situated at the bottom of the garden now owned by Alison. It should be established if this right might exist as an easement. Hunter v. Canary Wharf proves to us that the courts are hesitant to allow an unlimited number of rights which are capable of being easements.The nature of the right must be sufficiently clear and Alison must not be deprived of too many of her rights. The four characteristics are met.
The rule in Wheeldon v. Burrows states that on a transfer of a part of land, all continuous and apparent easements pass with the title. These rights were exercised previously during Thomas’s lease and afterwards by Tom.From the facts it seems as though the right was acquired impliedly.
All these are necessary to the reasonable enjoyment of the property granted and which are used for the benefit of the part of the land transferred immediately prior to the sale. For the easement to be implied it needs to be:
continuous and apparent; there must be a mark of the existing right on the land situation a cable
The easement is necessary for the reasonable enjoyment of the property and must have been in use by owner immediately before grant. All these factors indicate that the easement was implied as prescribed in s.62 of LPA. This type of easement does not have to appear on the register of title.
b)
All the necessary characteristics of a right amounting to an easement stated in Re Ellenborough Park [1956] Ch 131 are present in this scenario.
The transfer gave an express grant to Tony use the driveway of Lyon Hall to the main road, meaning this right over Alison’s land was acquired expressly via transfer of freehold.
For this easement to be legally granted the correct procedure must have been followed before it can be ascertained that the easement has been expressly granted or reserved.The most significant is for the easement to be legal. In order to create a legal easement, the necessary step of creating a deed must be taken as prescribed in s.52(1) of LPA 1925
Section 1(2)(a) of the Law of Property Act 1925 states that an easement is an interest that is capable of subsisting or of being conveyed or created at law (capable of being a legal interest) It can only be legal if its for an interest equivalent to an estate in fee simple absolute in possession or a term of year absolute. The duration is equivalent to a term of years absolute which is 99 years.
The title to the land is registered and s.27 of the Land Registration Act 2002 states that a disposition of a registered estate, which contains the express grant of an easement must be completed by registration against the title as stated in s.27(2)(d) of LRA 2002.
The easement will not be protected if it has failed to be registered(p.142).
The only way for Alison to take control over the driveway and for Tony to stop using it would be by expressly releasing it by deed.
c)
Reena could take action in relation to the interference with light being blocked.
There are three ways to claim an easement by prescription, this easement is not accompanied by grant either implied or express. Additionally, a sale of part mustn’t have taken place. The presumed easement arise through enjoyment over time by one of following recognised methods: Prescription Act 1832—20 years enjoyment ‘as of right’, common law prescription and doctrine of lost modern grant. This isn’t the case here as stated in s.3 of the PA 1832, which the right of light is subject to. Unlike other easements and profits the right of light is not required to meet other common law requirements for prescription.For Reena’s claim to have acquired an easement by prescription there is a number of requirements which need to be fulfilled.
The right of light can be acquired by ‘anyone who has had uninterrupted use of something over someone else’s land for 20 years without consent, openly and without threat, and without interruption for more than a year.’
As prescribed in s.3 Prescription Act 1832, after a 20 uninterrupted years period and without a written consent the right becomes absolute and indefeasible. Rights of light can only be acquired in respect of buildings.
Depending on the length of time Reena enjoyed the right that she might wish to acquire an easement of light by prescription against her neighbour,Alison. Section 4 of the PA 1832 (140) the period of 20 years must have passed before an action for acquisition of easement can be commenced.
This will be a matter for the court to decide and may grant her the entitlement only to a sufficient amount of light for comfortable use and enjoyment and there must be use being made of the light s stated in City of London Brewery v. Tennant (1873-74) LR 9 Ch App 212.
The extent of the burden on the servient land will be taken into consideration by the court before making its decision. As long as Reena can establish that she has a valid claim to a prescriptive easement this will be a legal easement.
WORD COUNT:
Bibliography:
1. The University of Law Ltd (2016) W301, Manual 3, Units 14-22, Law: ownership and trusteeship – rights and responsibilities, Kate Lambert, Gill Williams
2. Pearson (2015), Property Law; Cases and Materials, Roger J. Smith
3. Oxford University Press (2014), Textbook on Land Law, Judith-Anne MacKenzie, Mary Phillips
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