This essay will consist in an attempt to analayse
This essay will dwell in an effort to analyze whether or non Adrian will be bound by the involvements of Timothy, Norma or Clifford. This will affect analysis of the undermentioned constructs: express trusts and existent business, easements over registered land, leases, contracts for sale and restrictive compacts. The analysis will be done in that order. The first thing to observe is that none of these involvements appear to be registered as Brian was registered as the exclusive owner. There are nevertheless certain involvements in land which override a registered temperament such as this. The unregistered involvements which override a registered temperament are listed in Schedule 3 of the Land Registration Act 2002.
Timothy is the good proprietor of ? of Greenview Mansions under an express trust. This is an just involvement. Brian is the legal guardian of Timothy’s involvement. As a beneficiary under such a trust, Timothy will be entitled to busy the belongings at any clip if at any clip the trust includes doing the land available for his business. [ 1 ] It is possible that it would at least be arguable on the facts that the trust was intended to include a right of business for Timothy at the weekends when he visited to get away his nerve-racking metropolis occupation. The inquiry of whether or non Adrian is bound by Timothy’s involvement comes down to whether Timothy was in ‘actual occupation’ at the clip of the registered temperament. The definition of ‘actual business can be found in the seminal instance of Williams and Glyn ‘s Bank V Boland [ 1981 ] AC 487 at 505:
“What is required is physical presence, non some entitlement at law”[ 2 ]
Timothy is physically present at the weekend so this would likely do prima facie. However, the involvement of the individual in existent business can non overrule the registered temperament if their business would non hold been obvious on a moderately close review of the belongings [ 3 ] . It is possible that if Timothy was merely at that place at the weekend so his business would non hold been obvious. If this is the instance, Adrian would non be bound by his involvement.
If the trust is held to include a right of business, Timothy may hold a claim for breach of trust against Brian.
Clifford’s Right of Way
Clifford is claiming to hold a right of manner over Adrian’s land ; this is an easement. An easement is capable of representing an involvement which overrides the registered temperament [ 4 ] . The first thing to observe is that this lone applies to legal easements. The old place in Celsteel Ltd v Alton House Holdings Ltd [ 1985 ] 2 All ER 562 that an just easement was an paramount involvement has been expressly reversed by Schedule 1 Paragraph 3 of the Land Registration Act 2002. A legal easement must be created by title [ 5 ] . It is non clear whether this was done on the facts as we are merely told that Brian made an understanding with Clifford. If it was non done by title, Adrian will non be bound by it.
If it was made by title, it will still merely adhere Adrian if it was within his existent cognition at the clip of the temperament [ 6 ] or it would non hold been obvious on sensible review of the land over which the right of manner exists [ 7 ] . There is nil to bespeak that Adrian really knew about this involvement. It is possible that the easement would be obvious if for illustration there is no other manner of accessing the field. If this is the instance, Adrian will be bound by Clifford’s right of manner. If it is non obvious Clifford must turn out that he has held the easement for a period of one twelvemonth [ 8 ] . This would non be possible on the facts as Clifford merely entered into the understanding with Brian one month before the temperament.
Norma has a rental in a garage on the relevant land which is due to get down in December 2008 some 5 months after it was granted in July 2008. A rental is an involvement capable of overruling a registered temperament [ 9 ] , if it is granted for a term non transcending 7 old ages from the day of the month of grant. It is non clear on the facts how long the rental was granted for. However, the definition of “lease” for these intents excludes a rental granted:
“out of a measure uping estate of an estate in land for a term of old ages absolute to take consequence in ownership after the terminal of the period of three months get downing with the day of the month of the grant”[ 10 ]
This is clearly the grant of an estate in land, the garage, which is due to take consequence in ownership more than 3 moths after the day of the month of the grant. However, it is non a qualifying estate. A qualifying estate is defined by subdivision 4 ( 2 ) of the Land Registration Act 2002 as, among other things, an unregistered legal estate. This estate is already registered so the rental is non granted out of a qualifying estate. It is likely that Adrian will hence be bound by Norma’s rental if it has been granted for a term non transcending 7 old ages.
Clifford’s Contract of Sale
Clifford’s understanding with Brian would represent a contract for sale of land. A contract for sale is an just involvement in land. A prospective buyer is under no responsibility to register a contract for sale. [ 11 ] Clifford would hold the right to implement his involvement against any 3rd party who’s legal or just involvement station dates his except a buyer of a legal involvement for value without notice of his contract. [ 12 ] Adrian’s involvement station day of the months Clifford’s, Clifford’s being in March 2008, but the inquiry remains as to whether Adrian knew of the being of this contract for sale at the clip of purchase. If he did non he will non be bound as he has purchased a legal involvement in the belongings.
Clifford’s restrictive compact
Clifford’s understanding with Brian that he non construct anything on the land without consent will represent a restrictive compact. A restrictive compact is an just involvement. The general regulation is that restrictive compacts run with the land [ 13 ] and as such Adrian ought to be leading facie edge by this understanding. However the exclusion to this is once more that a buyer of a legal estate for value without notice of the compact will non be bound by it [ 14 ] . Whether Adrian is bound by this involvement will therefore once more be dependant on Adrian’s province of cognition at the clip of purchase.
Furthermore, a restrictive compact is a registerable land charge [ 15 ] and if it has non been registered before the purchase of a legal estate for value, it is non enforceable against the buyer. It would non look that this compact is the topic of an entry on the registry and as such Adrian will non be bound by it.
- Land Registration Act 2002.
- Williams and Glyn ‘s Bank V Boland [ 1981 ] AC 487
- Trusts of Land and Appointment of Trustees Act 1996
- Celsteel Ltd v Alton House Holdings Ltd [ 1985 ] 2 All ER 562
- Law of Property Act 1925
- Halsbury’s Laws of EnglandLand Registration( Volume26 ( 2004 Reissue ) ) para 962
- Wright V Dean [ 1948 ] Ch 686, [ 1948 ] 2 All ER 415 ;
- Halsbury’s Laws of EnglandEquity( Volume 16 ( 2 ) ( Reissue ) para 612.
- Wilkes V Spooner [ 1911 ] 2 KB 473, CA.
- Land Charges Act 1972 s 2 ( 5 ) ,
- Property Law, Roger J Smith Fourth Edition. Longman 2003
- Component of land Law, Kevin and Susan Gray Fourth Edition Oxford University Press 2005.
- Principles of Land Law, Martin Dixon 4ThursdayEdition Routledge 2002