When right to the enjoyment of the
When advising George upon thevarious claims against his land it is important to establish initially thatGeorge is the legal owner of the estate which means he has the primary right tothe enjoyment of the land. The claims put forward against him by the variousparties are “interests” which are limited rights to his land these aresubdivided into legal and equitable interest. Depending on what kind ofinterest each claim is will affect how the interest may be protected and howpriority may be determined. Operating on the assumption that the land isregistered meaning that the title has been registered under the hm landregistry, under the land registration act the following paragraphs will dealwith each claim individually. Agatha’s claim to her entitlementis an equitable interest that occurred when she contributed half the purchaseprice to the property which meant that she developed a presumed resulting trust.Due to the fact that she directly contributed half the purchase price inaccordance with Gissing v Gissing1she had half the equitable ownership in the land.
Due to this being on trust itis not going to be registered with the land charges act furthermore under Schedulethree of the 2002 Act interests of a person in actual occupation of the land overridedual interests or dispositions. However, a legal remedy for this however stemsfrom George complying with the statutory requirements of section 27 7 of theland charges act which will allow for Agatha’s claim to be overreached due tothe fact that she does not hold any legal tittle in the land and that George hadno notice of her beneficial interest prior to the sale. The general rule applied toregistered land in accordance to section eight of the 2008 act is thatinterests whether they are equitable or legal take priority in thechronological order in which they were created meaning earlier registeredinterests take priority over newer ones. Caroline has acquired an easement overGeorges land. It is likely that this easement was acquired by express grantthis would mean there will be a legal deed that refers to Caroline obtainingthis easement due to the fact that she contributed a lot of money to have thisbenefit. An easement required by express grant is legally binding and inaccordance to section three of the land charges act qualifies as an overridinginterest unless George can prove that it was not oblivious upon reasonableinspection of the servient land and this easement was not known to himfurthermore, the easement would stand if Caroline can prove that one year priorto the sale she was using the parking space.
Furthermore, it is arguable that aconstructive trust was made between Caroline and the previous owner being shepay for the resurfacing and he would allow her to park there. The claim made by ross is based onthat of a covenant. A covenant relating to freehold land is a promise containedin the properties title deed which the covenanter makes a promise to do or notdo a certain act. The promise made that the stable block would remain a stableblock is a restrictive covenant meaning that it his must refrain from buildingupon it however legally as George was not aware of this covenant when he purchasedthe land the courts would not require him to take on the burden of the land as demonstratedIn Rhone v Stephens2 wherethe judge found that when a property is conveyed without restrictions the purchaseris able to do as he pleases provided he doesn’t break any statutory provisionshowever it is likely that the burden ofthe positive covenant will transcend the change in ownership due to the factthat the dominant land benefits and the intention was for the owner of theservient land to continually meet the cost and in accordance with the law ofproperty act 1925 which states that the covenant must be upheld if the intentionwas for it to be. Furthermore, if the covenant has been annexed to the dominantland then the restrictive covenant may transpire the sale also. Drakes claim like Caroline’s Isbased on him acquiring an easement however he has acquired it throughprescription. Prescriptive rights may be acquired by one freehold owner fromanother however this cannot be done illegally. In accordance with the prescription act 1832in order to gain easement by prescription the act must be carried out without secrecy,consent and force continually over a long period of time it is unlikely howeverthat drake can enforce this claim as section three of the act determines that theeasement must have been taking place for 20 years furthermore the act doesn’tapply to small holdings rather only freeholds.
What difference, if any, would itmake to your answer to (i) above if title to Trenwith had been unregisteredwhen George purchased it from Francis?If the land was unregistered, itmeans that it wasn’t registered under the land charges act 1972. Priorities ofinterests in unregistered land has been described as the central problem ofconveyancing. this is due to the fact that the idea of registered land wascreated in order to simplify the system.
They key difference between purchasingunregistered land as opposed to registered land is that the person buying thetitle deed must investigate the sellers title to the land by looking at both documentarysources and physical inspection of the property meaning it falls down to theseller within reason to determine the easements covenants and trusts associatedwith the property.Unregistered land relies heavily onthe doctrine of notice. Under the doctrine of notice, a bona fide purchasermeaning the purchaser of the title deed of a legal estate will take priorityover any unregistered land charges provided they did not have any knowledge ornotice of their existence3.Any registered interests under the land charges act however would qualify as actualnotice but only a limited number of charges can be registered on unregisterland such charges are set out in section two of the act.
In regards to Agatha claim if the land was unregisteredit is arguable that George could claim that he was a bona fide purchaser as aresultant trust would not qualify to be registered under the land charges act andthere for he would have had no actual notice of the interest this would meanthat as a purchaser he would have no obligation to abide by this interest underthe doctrine of notice. As a result of this Agatha would have to claim herequitable interest from the trustee that sold the property. As George purchasedthe property in good faith.
This would be a similar situation for both Carolineand drake as no notice was provided. In the case of ross however if the land was unregistered itis likely that his claim is enforceable as restrictive covenants after 1925 areregisterable under class d of the land charges act if ross registered thischarge George would be bound by it as he would have had actual notice of theinterest. In the instance that ross failed to register this charge under theland charge register prior to sale of the relevant land is void as against apurchaser meaning that George will not be bound by the burden of the covenant. 1 Gissing v Gissing 1971 AC 8862Rhone v Stephens 1994 2 AC 3103 https://www.lawteacher.net/free-law-essays/land-law/land-law-doctrine-of-notice.php
