The was neither an employee nor a
The first claimant is Tina Thompson (TT), who claimsthat PP must allow her to return to the cottage as she was granted a lease byBB in 2012 for 10 years. We must also discuss the possibility of her enactingan option to purchase for £600,000 that she was apparently granted by BB in2012 also. When looking at if her claim will be successful we must look atwhether the lease she was granted will be binding over PP. The same for heroption to purchase. A lease is one of 2 legal estates1. The act also gives us the statutorydefinition of a lease2 stating that for a valid lease itmust be for a fixed time, can take effect immediately or in the future within21 years and rent is not a requirement. TT’s lease is for a set time (10years), started immediately and as rent is not required it does not matter ifshe paid rent to BB.
As a result of these factors, it can be held that TT’slease does come under the statutory definition. In Street v Mountford it was held that for a lease the person musthave: “exclusive possession, for a determined term and at a rent”3. We must compare this with TT’s situationand when we do we will see that she does have exclusive possession of theproperty and it is for a determined term (10 years), however we are not sure ifshe pays rent, so is this an issue that may affect her claim4? The answer is no as in Ashburn v Arnoldthe court of appeal held that the “listing of rent as a requirement for a leasedoes not preclude a lease under which no rent is paid from being valid”5.
As a result, it will still notaffect TT’s claim if she is not paying rent. In 2012 BB was the owner of BelvonEstate and thus he had the legal capacity to grant a lease over the cottage. Thereare also 3 categories, the Facchini6categories, where no tenancy is evercreated which PP could possibly rely on to argue that TT does not have a lease.
These are: where there was no intention to create legal relations, serviceoccupancies and lodgers. Without going into much detail I can assure you thatnone of these categories apply to our scenario as there was clear intention tocreate legal relations7 and TT was neither an employee nor alodger of BB. Having established that TT has a lease we must now see if it wasa legal or equitable lease and if it was protected. Legal leases must becreated by deed8, failing to create the lease by deedwill mean it may only exist in equity as “an agreement for a lease is a as goodas a lease”9. However, for the lease to berecognised in equity under Walsh vLonsdale it must be in writing, contain all the terms and be signed by bothparties10.
If the lease was created by deed,as it is over 7 years it must be registered for it to be protected11. If the lease exists in equity thenit may still be protected by entry of notice in the charges register of thelandlord’s title12. If TT has failed to register herlease (if it is legal) then the interest will not be protected13 and it will only exist in equity. Ifthe lease is equitable (either because it was not granted by deed or she failedto protect it) and she has not entered it on the charges register then again itwill not be protected, unless she is in actual occupation as then it will beprotected as an overriding/unregistered interest14.
For TT to rely on this she musthave an equitable interest and be in actual occupation of the property. PP maytry to argue that she is not in actual possession due to her extended holiday,this will fail however due to Link Lending v Bustard which states that temporary absencefrom a property does not stop actual occupation as long as it is the occupant’sintention to return15. I would advise PP to try and arguethat TT’s occupation was not obvious upon inspection16 and it was not disclosed upon enquiryhowever this is a difficult matter and it would be up to the court to decide ifthis were the case. There are strong arguments either way as PP will say he didenquire and inspect reasonably but due to SS’s lie how could he have knownabout TT17? However, TT will argue that he didnot enquire enough of SS and that her occupation should have been discovered. Theanswer is not an obvious one and the court will need to come to its owndecision based on these specific circumstances but 2 cases that they may use toaid them are KingsnorthFinance v Tizard 18 and Hodgson v Marks19. If it is held that TT was in actualoccupation then her interest will be protected. As a result of all these factsI would say it is highly likely that TT will be successful in her claim toreturn to the property as a tenant as the only way she could not is if shefailed to register her interest (legal or equitable deepening on which it is)and then the court rules that she is not in actual occupation (highly unlikelyin my opinion).
As for TT’s option to purchase, I believe this will also beenforceable against PP should she wish it to be. This is due to the optionbeing alegal or equitable interest depending on whether it was granted by deed or not,therefore she could have protected it by registration or notice and even if shehas not then the interest will be overriding due to her actual occupation ofthe property (same discussion as above). So if she is held to be in actualoccupation then once again, just as with the lease, the interest will be overridingand her claim will be successful against PP.
Nowwe must establish whether EE does indeed have a right of way over BelvonEstate. For an easement to be valid the right must not confer exclusivepossession20. Clearly this easement would not. Re Ellenborough Parkestablished the essential characteristics for an easement21: must be dominant and servient land,both must be separately owned, the right must accommodate the dominant land22 and the right must be capable offorming the subject matter of a grant. The only one of these that PP may try toargue has not been fulfilled is the final one, this is because one requirement foran easement to be capable of forming the subject matter of a grant is that theright must relate to the use and benefit of a specific piece of land, it ispossible that Belvan Estate is a rather large piece of land and as such simplyhaving a right of way over it is not specific enough23 and the right should specify moreclearly which part of the estate EE may use. This may be a way in which PP candefend against EE as if it is held that the right is not specific enough thenit cannot constitute a valid easement. Assuming the easement is held to bevalid then we must look at if EE has protected it.
We are told that it wascreated by deed however we are not told if it was granted for a specific period(including permanently). If it was for a set time then EE would need toregister it so it is protected24. However, I assume that it was notfor a specific time which means the easement exists in equity only25. This would need to be protected bynotice26.
Even if EE has not protected hiseasement it may still be protected as easements acquired by implication orprescription are overriding interests27. For EE to rely upon this he wouldhave to prove that his easement can be acquired by implication or prescription.His best chance is to argue that the easement would be granted throughnecessity.
For this he would need to show that without the easement the landwould be incapable of use and therefore worthless28. Despite this being his best chance,I do still believe this would fail as the courts are reluctant to apply therule and any other means of access to the property will defeat the claim29 and we are told that accessing thisspecific part of the farm is difficult for tractors without the easement butnot impossible and as a result the argument for necessity would probably fail. Commonintention30 would fail simply because it clearlycannot have been the intention of both parties to have the easement because PPdid not even know about it. The rule in Wheeldon v Burrows does not applyhere as there never was a quasi-easement31. Section.
62 LPA also does not helpEE as there was no license and no sale to him and thus does not apply32. Finally, there is prescription33, the easement must be over freeholdland, there must’ve been 20 years uninterrupted use34 and the claimant must be ‘as ofright’ (without secrecy35, without force36, without permission37). We are not sure whether EE hasbeen using the land for 20 years but even if he has, it is debatable whetherthe court would conclude that it has been ‘uninterrupted’. Hollins v Verney stated that the use must be continuous and regular38 and it is debatable whether this isthe case for EE as he has not used the land since 2015. Despite the fact thatit is unlikely that the easement will be implied or prescribed on the pointsabove, a bigger issue exists. For a prescribed or implied easement to beoverriding it must have been exercised in the last year39 and EE has not done this and thus itcannot be overriding even if it is granted through necessity. Just as with TTthere are many possible outcomes depending on what BB and EE did/did not do butI would say the 3 most likely outcomes are: • Easementlegal by deed with specific years + protected• Easementexists in equity as years not specified + protected • Existsin equity as years not specified + not protected, also does not exist asoverriding interest as it is unlikely to be created by prescription orimpliedly + couldn’t be protected by schedule 3 anyway.
Finally,we look at BB’s claim that he can get Belvon estate back. Does BB have interestin the estate and can the register be rectified due to mistake? Case law andstatute would seem to suggest that he doesn’t/can’t. Pinto v Lim was similar to the facts of our scenario as there was aforgery and then the property was transferred to an innocent 3rdparty. When they sought rectification of register it was refused. Partly due topossession and partly due to the fact that there were two innocent parties andone would be entitled to an indemnity40. However, this case is not perfectlyapplicable to our scenario as the claimant only had a part share in theproperty compared to BB who was the sole owner of the property. The cases of Malory41 seemed to suggest that the claimantwould have rights sufficient to support an overriding interest42. However, this ruling does not survives.
58 LRA, s.29(1) LRA and the ruling in Swift1st ltd v Chief Land Registrar. S.29(1) tells us that unprotected interestare defeated by a registered transfer43and s.58 tells us that “If, on theentry of a person in the register as the proprietor of a legal estate, thelegal estate would not otherwise be vested in him, it shall be deemed to bevested in him as a result of the registration.”44.
These 2 sections combined with theruling in Swift 1st, whichstates that “registration of a forged transfer confers good title on thetransferee”45, would seem to show us that BB nolonger has interest in Belvon Estate and PP has good title. One suggestion fromthe Law Commission I found was that there may be more than 1 legal title inregistered land, such that the original owner retains a legal title as anoverriding interest46. However, I could find no caselaw/statute/articles that support this suggestion, however, it is still worthnoting as a possible change in the future. Despite it looking like BB no longerhas interest, it is still possible for the register to be rectified if therehas been a mistake that has a prejudicial effect47. BB would need to prove that theDeed of conveyance from SS was forged48. The specific definition of mistakeis not clear as there is no statutory definition and case law is fairlyindecisive but it is well established that forged documents leading to atransfer equals mistake49. Despite this, the register is nevernormally rectified against the proprietor in possession. LRA contains aphysical test for possession and the case of Kingsalton Ltd v Thames Water Developments tells us that ifpossession is disputed (possibly here due to Link Lending v Bustard as it was always BB’s intention to return50) then the proprietor will be inpossession51, in this case that is PP.
There areonly 2 situations where proprietor in possession can be rectified against:1: where the proprietor has usedfraud or lack of proper care52 (PP hasn’t and thus this cannotapply here)2: where it would be unjust for thealteration not to be made53The second point is important as atfirst it may seem easy to say that rectification should not happen because thereare two innocent parties and PP is in possession and as a result it would notbe unjust for the alteration not to be made54. However, I think BB can put forwarda strong argument saying that it would be unjust not to rectify the register inhis favour as Belvan Estate could be his family home and be very unique withlots of personal items/heirlooms and even many memories55. This would come down to the judge’sdiscretion and the specific details about BB’s relationship with the Estate. Whicheverway it is decided the party that the decision is made against will be entitledto an indemnity56(And thus this won’t influence thejudge’s decision as both will be entitled and not just one57, PP will still be protected due toLRA schedule 8 para 1(2)(b)58) . They will receive an indemnityequal to the value of the property at the time of the error59, that is in 2016, I will assume thatthe value of the property then was the same as it was a few months later whenSS sold the property to PP in 2017, £900,000. 1 Law of Property Act 1925, s 1(2).2 Law of Property Act 1925, s 205(1)(xxvii). 3 1985 UKHL 4, 1985 AC 8094 Margaret Wilkie, Godfrey Cole, Landlord and Tenant Law (Palgrave 1993)5 1988 EWCA Civ 14, 1989 Ch 16 Facchini v Bryson 1952 1 TLR 1386 (CA)7 Mark Pawlowski, ‘When is a tenancynot a tenancy?’ 1999 L & T Review 3(3) 638 Law of Property Act 1925, s 52.
9 Walsh v Lonsdale 1882 21 Ch D 9 (CA)10 Law of Property (MiscellaneousProvisions) Act 1989, s 2.11 Land Registration Act 2002, s 27(2).12 Land Registration Act 2002, s 32.13 Land Registration Act 2002, s 29.14 Land Registration Act, Schedule 3para 2.15 2010 EWCA Civ 42416 Barbara Bogusz, ‘Defining thescope of actual occupation under the LRA 2002: some recent judicialclarification’ 2011 Conv. 2011, 4, 26817 Barbara Bogusz, ‘The relevance of”intentions and wishes” to determine actual occupation: a sea changein judicial thinking?’ 2014 Conv. 2014, 1, 2718 1986 1WLR 783 (CH)19 1971EWCA Civ 8, 1971 Ch 892 20 Copeland v Greenhalf 1952 Ch 48821 1955 EWCA Civ 4, 1956 Ch 13122 Hill v Tupper (1863) 2 H & C 121 (EC)23 Michael Haley and Lara McMurtry, ‘Identifyingan easement: exclusive use, de facto control and judicial constraints’ 2007N.
I.L.Q. 2007, 58(4), 49024 Land Registration Act 2002, ss 27and 38.25 Law of Property Act 1925, s 1(2)(a).
26 Land Registration Act 2002, s 32.27 Land Registration Act, Schedule 3Para 3.28 Parker Pwllbach Colliery Co Ltd v Woodman1915 AC 624 (CA), Wong v Beaumont PropertyTrust Ltd 1965 1 QB 173 (CA)29 MRA engineering Ltd v Trimster Co Ltd1988 56 P & CR 1 (CA), Manjang vDammeh 1991 61 P & CR 194 (PCGambia) 30 Jones v Pritchard 1908 1 Ch 63031 1879 12Ch D 3132 Law of Property Act 1925, s 62.33 Prescription Act 1832.
34 Prescription Act 1832, s 2.35 Barney v BP Truckstops Ltd 1995 NPC 5 (CH)36 S Dalton v Angus & Co 1881 6 App Cas 740 (HL)37 Green v Ashco Horticultural Ltd 1966 1 WLR 889 (CH) 38 1884 13 QBD 304 (CA)39 LandRegistration Act 2002, Schedule 3 Para 3(2).40 2005 EWHC 630 (Ch)41 2002 EWCA Civ 151, 2002 Ch 21642 Roger Smith, Property Law (9th edn, Pearson 2017)43 Land Registration Act 2002, s 29(1).44 Land Registration Act 2002, s 58.
45 2015 EWCA Civ 330, 2015 Ch 60246 Law Commission, LAND REGISTRATION FOR THE TWENTY-FIRSTCENTURY A Conveyancing Revolution (Law Com No 254 2001) para 10.2747 LandRegistration Act 2002, Schedule 4 Para 148 HM LandRegistry, ‘Practice guide 39: rectification and indemnity’, 3.1.1 < https://www.gov.
uk/government/publications/rectification-and-indemnity/practice-guide-39-rectification-and-indemnity#applying-for-rectification>accessed 2 January 201849 Roger Smith, ‘Forgeries andindemnity in land registration’ 2015 C.L.J.
2015, 74(3), 40150 2010 EWCA Civ 42451 2001 EWCA Civ 20, 2002 1 P& CR 1552 Land Registration Act 2002, Schedule4 para 3(2)(a).53 Land Registration Act 2002, Schedule4 para 3(2)(b).54Juliet Brook, ‘When is rectification unjust?’ 2013 P.L.J. 2013, 313, 255Simon Cooper, ‘Resolving title conflicts in registered land’ 2015 L.Q.R.2015, 131(Jan), 10856 Land Registration Act 2002, Schedule8 para 1(1)57 Epps v Esso Petroleum Co Ltd 1973 1 WLR 107158 Land Registration Act 2002,Schedule 8 para 1(2)(b)59 Hounslow LB v Hare 1990 HLR 9
