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Land Law 2014-15

A

C

P R I O R I T Y

B

does B bind C?

1. is it a property right?

2. is it legal or equitable?

3. Is B's interest overreached?

4. If not, apply relevant property regimes:

unregistered legal

equitable

binds all

doctrine of notice

registeredentry of notice

- overriding interest except LCA 1972 e.g. restrictive covenants.

}

binding

otherwise, there is the s.29 defence

What is a proprietary right?
Distinction between 'owning' (property right) and 'owing' (personal right), a personal right is against one person, a property right against the whole world. Good example is Hill v Tupper [1863] where a boat company made a promise to H that he would have exclusive right to put pleasure barges on the canal. T then also started putting pleasure barges on and H sued claiming T was interfering with his exclusive right. Court held the right was merely personal since it was 'unconnected with the use or enjoyment of land - his only recourse is against the canal company.

Legal estates and interests in land:

Supervision 1

s.1 LPA 1925 identifies only 2 permissible legal estates in the land: a freehold and a leasehold. A freehold is 'ownership of land for an unlimited period', whereas a leasehold is ownership 'for a limited period' or 'term of years absolute'. s.1(2) then sets out all permissible legal interests: easement; profit; a charge; a rentcharge; a right of entry.

Equitable estates and interests in land:

s.1(3) states that 'all other interests in or over land take effect as equitable interests'. Rights under a trust are equitable, and it is possible to split the remaining equitable rights into 2 categories:-

those rights that do not correspond to any legal estate or legal interest in the land: (i) restrictive covenant; (ii) mortgagor's equity of redemption, (iii) equity by estoppel for registered land, (iv) 'mere equity' for registered land (s.116 LRA 2002).

equitable interests that do correspond with a legal estate/interest in the land: (i) equitable leases, (ii) equitable easements, (iii) equitable charges, (iv) estate contract, (v) option to purchase With these interests, B has not yet been granted the full legal interest, and A is under a duty to do so. s.4(1) imposes a freeze on development of any new equitable interest. However, the courts use a different approach to deny new equitable interests - Lord Wilberforce's criteria in National Province Bank v Ainsworth [1965].

ACQUISITION OF A RIGHT/INTEREST LEGAL

E Q U I TA B L E

Estates

Rights under trusts

Dependent acquisition - A has transferred/granted that right.

Dependent acquisition - A has a duty to him to use the land for B's benefit.

Independent acquisition - B acquires the right through his own, unilateral conduct

Independent acquisition - impossible for B to acquire a right under a trust independently.

Interests

Other equitable interests

Dependent acquisition - A has granted that interest.

Statutory regimes laid out in Law of Property (Miscellaneous Provisions) Act 1989 and LPA 1925.

Independent acquisition - B can acquire an easement through unilateral conduct, but the courts infer grant.

Buildings, fixtures and chattels

Supervision 1

Buildings/fixtures belong to the land, chattels are in personam. s.62(1) LPA 1925 defines what a conveyance includes: buildings; fixtures; commons; hedges; ditches. Buildings - Elitestone v Morris [1997] pre-fab wooden bungalow, with E owned and rented to M. M claimed it was a building and therefore part and parcel of the land, it was standing on some concrete pillars on the land, so would have been destroyed had it been moved. Held to be a building - part and parcel of the land, expanded in Mew v Tristmire Ltd [2011] to include that if they were not originally intended to be permanent, they would be chattels. Also Chelsea Yacht and Boat Co Ltd v Pope [2000] where a houseboat moored on the Thames and anchored to the riverbed and connected to mains gas and electricity was held to be a chattel not a building, since it could have been moved without being destroyed and was detachable. Fixtures - a twin test is laid down: degree of annexation: physical test, how closely is it affixed to the land?; purpose of annexation: is it only attached for the purpose of enjoying it as a chattel? Leading case is Holland v Hodgeson
[1872] in which Blackburn J held that the appropriate test was the 'degree of annexation' but sometimes purpose will trump it. In that case, it was looms which were nailed to the floor and held to be fixtures since pulling them up would destroy the property. A tenant has a right to remove his fixtures, no matter how heavy/bulky they may be, as seen in Peel Land and Property v TS Sheerness Steel [2013] no matter how big the objects are, the test remains purpose and degree. Held in Hamp v Bygrave [1983] that free-standing ornaments were held to be fixtures since they were 'integral to the design of the garden'. Usually these cases go either way - important for the parties to contract as to which things they will leave/remove.

The definition of land LPA 1925 s.205(1)(ix) - "Land" includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditament. Hereditaments can be passed on by death. Horizontal extent of land: Often as far as fence/physical demarcation sign. Less true of rural land where the boundaries are organic e.g. hedges, which is more difficult since we need to know exact boundaries. Plans appended to the land are also evidence of boundaries. Ad medium filium - 2 owners own the land under the stream/river which divides the land at the midway point - they own half each. Where two properties are divided by a hedge or bank and an artificial ditch, the boundary is presumed to run along the edge of the ditch furthest from the hedge or bank, since it is presumed the owner built the ditch on his own land. For registered land there are statutory mechanisms for the determination of precise land boundaries: LRA 2002 s.60(3). Vertical extent of land: Accersius of Bologna "the one to whom the soil belongs to him also belongs everything up to the heavens and down to the underworld". Exceptions for airspace under the Civil Aviation Act 1982 s.76(1) as long as reasonable height/reasonable journey. Hatton v UK [2003] argued night flights from Heathrow interfered with Article 8 - held that the right was engaged, but the disturbance was justified and proportionate. Bernstein v Skyviews Ltd [1978] Skyview was a company who flew in light aircrafts and photographed people's houses, then tried to sell them to the owner. Claimant argued this was trespass/nuisance - held that owner is only entitled to the space above his land as is necessary for reasonable enjoyment. Held in Lemon v Webb [1895] that overhanging trees can constitute trespass, also cranes in Anchor Brewhouse Developments Ltd v Berkely House [1987]. Underneath? Own everything pretty much - held in Grigsby v Melville [1974] that if you buy a building with cellars underneath, you own the cellars even if the access is sealed. Some minerals have stat regulations e.g. coal Coal Industry Act 1994 and state has exclusive right to drill for oil in your land Petroleum Act

1998. Things buried belong to owner of land, except treasure s.1-4 Treasure Act belongs to State.

is adverse possession justified?

supervision two

Howard and Hill argue the 'length of time' is not in itself a justification, instead, as Holmes suggests, the justification is that it is the "deepest instincts of man" that something you use and enjoy is important to you. Dockray suggested 4 reasons we need adverse possession, incorporating three from the Law Comm report 1977: protect defendants, encourage claimants not to sleep on their rights, ensure a person feels confident that he has a right after a certain period of time and finally, to facilitate the investigation of title in unregistered land.

Factual possession:

The test: Powell v McFarlane [1977] Slade J see handout "the alleged possessor has been dealing with the land in

question as an occupying owner might have been expected to deal with it and that no one else has done". Reaffirmed in JA Pye (Oxford) Ltd v Graham [2003]

Discontinuance - the person in possession abandons possession and another person takes it. Dispossession - a person coming in and putting another out of possession.

acknowledgement of title If S formally recognises C's title, the clock of adverse possession restarts from the moment the title is recognised s.29 and 30 Limitations Act 1980. Ofolue v Bossert [2009] POs had let building to tenants while they went abroad. Since 1981 the building had been possessed by B who had been given possession by the previous tenant. B claimed adverse possession in 2003, when original proceedings had started in 1987 (well within the limitation time). POs argued that B's belief that he was a tenant precluded an adverse possession since he had acknowledged that he was not owner - held it did amount to an acknowledgement but that because the acknowledgement was made over 12 years ago, B's claim succeeds.

Applying the test: If the squatter can show he is positively using the land, that is indicative of factual possession if the squatter shows he is excluding others from the land, this too is very indicative Geographical extent of adverse possession is not limited to the factual possession e.g. Roberts v Swangrove Estates
[2007] the claimant occupied a terraced house and excluded all others except his own guests - he has adversely possessed despite not being able to show he had occupied a back room upstairs. Is it possible to adversely possess part of a building? Held in Ramroop v Ishmael and Heerasingh [2010] that this is possible since land can be possessed horizontally, but would only be possible where it is a self-contained residential flat, not a communal living space.

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*

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Car parking - can be an easement, so to adversely possess you would have to go above and beyond normal use. Paveledes v Ryesbridge Properties Ltd [1989] business had a car park but wasn't big enough so the staff parked on neighbouring land. Court held that it did not constitute adverse possession because the neighbouring land was huge and amount of cars parked on it was too small to amount to possession. Simpson v Fergus [2000] road behind a road of terraced houses had no owner, so one of the terraced house owner's marked 4 spaces in the road and enforced that no one could use them except his guests. Court held that you could not adversely possess by intention alone, but he had no factual possession since all he had done is put up a sign - no fencing. Parshall v Bryans [2012] one of the owners of a house bought some bollards to mark out a parking space and put a chain between the bollards - this did constitute adverse possession because he had done enough to physically demarcate the space. Grazing animals - Powell v McFarlane [1977] not enough to constitute possession, however in JA Pye v Graham
[2003] the fact that they fenced off/had a locked gate was sufficient. Cultivating land - Hounslow LBC v Minchinton [1997] 3 feet strip of land at the bottom of a garden - squatter was cutting the hedge, weeding the land, enclosed it and had a compost heap. Although these acts weren't enormously substantial, they were sufficient in the context because it was the only way you could possess a 3ft strip of suburban land. Dyer v Terry [2013] parties arguing about the required degree of cultivation necessary, and they tried to argued that if you plant bulbs, that's very different from other types of flowers because they flower year to year once planted, whereas other flowers need more active gardening. Judge said it all depends on the facts, it is a clever distinction but it depends on the type of land as to whether this will be a factor.

supervision two

meaning of adverse - he/she is not present with a licence from the owner. A licence can be implied e.g. Wallis's Clayton Bay Holiday Camp Ltd v Shell-Mex and BP [1975] where owner offered to sell S the land, which he intentionally ignored = implied licence. meaning of possession - meant to be taken "in the ordinary sense of the word' (Pye v Graham), meaning it had 2 necessary elements: a sufficient degree of control and custody (factual possession) and an intention to exercise such custody and control on one's own behalf and for one's own benefit (intention to possess).

Adverse possession = Intention to possess
+ Factual possession Intention to possess: effect of adverse possession on unregistered title

Held in Pye v Graham [2003] that an intention to possess is distinguished from an intention to own, since, in Pye, the owners applied for another licence which precluded an intention to own but did not affect their possession, as explained by Lord Browne-Wilkinson. However, it is necessary to show an intention to exclude the world at large - Powell v McFarlane [1977] failed on this requirement, since S's acts were equivocal so open to interpretation, which precluded an definite intention, if intention is fully clear, this still may be sufficient, but intention becomes paramount where the behaviour is equivocal. S's age and acts were also taken into consideration. Seddon v Smith [1877] held that enclosure is the strongest form of evidence of intent - also cultivation; placing and enforcing notices and locking/blocking the means of access.

General limitation period of 12 years under s. 15 of the Limitations Act 1980, can be completed by one adverse possessor or 2 in succession. Exceptions to the 12 year rule include mental incapacity of the paper owner; fraud/deceit on behalf of S; cases of mistake; Crown lands and (i) foreshore.

effect of adverse possession on registered land pre-LRA 2002

(ii) (iii) (iv)

*

Subject to the same limitation rules except the extinguishment of title was replaced by s.75 LA 1980 which states that, instead of the PO's title being extinguished, he will instead be said to be holding the land on trust for S, who can

*
then apply for title. Heavily criticised - overly complicated; too trusting of the PO; confusion about which title S should apply for since he has a beneficial interest under a trust.

There are 4 key points to intention to possess: concerned with the squatter's subjective intention, not the owner's It is only an intention to possess, not an intention to own. The intention need only relate to the time being - no need for an intention to be there forever. Only need to intend to exclude "insofar as the law allows".

Controls on access - Balevents Ltd v Sartori [2011] squatter parked his refreshment trailer on the land and started enclosing the land with shrubs and fencing - this constituted sufficient adverse possession. If fence is put up to keep animals in? Held in Hounslow v Minchinton [1997] that it doesn't matter why the fence is put up since it still has the effect of excluding others - contra with Inglewood v Baker [2002] where court said where fence was to keep animals in, it does not show sufficient intention. Other means of keeping people out - could charge entry. Carroll v Manek and Bank of India [1999]
the owner went to prison for rape, and the manager lived in the owner's hotel and he claimed to have adversely possessed the smoking room of the hotel. Ultimately failed but also claimed adverse possession in relation to the carpark because he charged people to enter the carpark which showed he was in control of the land - he won in relation to the carpark. Ellis v Lambeth LBC
[1999] organised squat of a council house in Brixton. Mr Ellis took the decision whether or not to allow new squatters in, which showed he had taken possession by controlling access.

supervision two

effect of adverse possession on registered title under the LRA 2002 s.15 and 17 of the LA 1980 are disapplied in relation to registered land. Instead, under Schedule 6, Para 1 of the LRA 2002 S has to adversely possess for 10 years before he can apply to become registered proprietor of the land. Under this legislation, adverse possession has no effect unless and until S makes a claim - S must complete 10 years of adverse possession and cannot add this together to any other squatter. S then makes an application to become registered proprietor. Once an application is made, the PO is told and has 65 working days issue a counter-notice to assert his title. If he does not issue a counter-notice within 65 days, then the title is transferred to S. If PO does issue a counter-notice then the application to become registered by S is rejected and the PO has 2 years to commence proceedings against S for possession. If he does not do so then S acquires title of the land.

what is a reasonable belief in the land being yours?
Osbourne v Lawton [2010] purchaser mistakenly believed the boundary was somewhere it wasn't - land registry would've shown him where the boundary was. Held to be a reasonable belief. Zarb v Parry [2011] say that the reasonable belief must last up until the point you apply for registration - surely you'd need to know the land was not yours before applying?

There are three situations whereby S's claim will succeed even if PO has issued a counter notice under Schedule 6 Para 5(2)-(4):
- equity by estoppel stops the PO from seeking to dispossess S
- for some reason S already has a claim in the land
- the land is adjacent to S's, the boundary is unclear and S reasonably believed the land was his. Bogusz claims that this system reflects the true position of registered land - ownership depends on title and not on possession. If S transfers his possession to another pior to 10 year period ending, Sch 6 Para 11(2)(a) says that the new possessor will only have to stay for the remainder of the time clocked by S1. If S2 dispossesses S1 then he cannot rely on S1's time and has to start his own clock. If S1 retakes the land before S2 has completed, S1 can add S2's time to his own.

effect of adverse possession on leasehold titles

If the land is leased at the time of the adverse possession, the AP operates as against the leasehold not the freehold - at the expiry of the term of the lease, the landlord can assert his or her freehold against the adverse possessor. In unregistered land, when the AP has successfully completed 12 years, the LA 1980 extinguishes the lease, leaving S with a common law fee simple, which gives S the best right to possess the land for the duration of the lease. Is a surrender of the lease by an old tenant who has been dispossessed by an adverse possessor effective to enable the landlord to immediately assert his freehold title against the AP?
In unregistered land, this suggestion is met with the objection that the original leaseholder's title has been extinguished so there is no lease to surrender. However, in Fairweath v St Marylebone Property [1963] the HoL said a surrender may be effective by suggesting the extinguishment of title only operated as between the squatter and the tenant, not the landlord and the tenant. In registered land under LRA 1925 the title is not extinguished but held on trust so AP then applies for title - but does he apply to be leaseholder or freeholder? In Spectrum Investment Co v Holmes [1981] the leaseholder was adversely possessed against and S then apple for registration. The Registrar closed L's title and registered S as a proprietor of a new leasehold estate. In those circumstances, a surrender by L is ineffective since once L's title is closed, she lacks the ability (Lord Browne-Wilkinson) but was satisfied that S's registration as leaseholder was correct. Cooke argues it should have been as a freeholder to prevent forcing the relationship of landlord/tenant on the landlord. In registered land under LRA 2002 when S applies for registration and is successful, he becomes proprietor of the lease, not the freehold.

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