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When right to the enjoyment of the

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When advising George upon the
various claims against his land it is important to establish initially that
George is the legal owner of the estate which means he has the primary right to
the enjoyment of the land. The claims put forward against him by the various
parties are “interests” which are limited rights to his land these are
subdivided into legal and equitable interest. Depending on what kind of
interest each claim is will affect how the interest may be protected and how
priority may be determined. Operating on the assumption that the land is
registered meaning that the title has been registered under the hm land
registry, under the land registration act the following paragraphs will deal
with each claim individually.

Agatha’s claim to her entitlement
is an equitable interest that occurred when she contributed half the purchase
price to the property which meant that she developed a presumed resulting trust.
Due to the fact that she directly contributed half the purchase price in
accordance with Gissing v Gissing1
she had half the equitable ownership in the land. Due to this being on trust it
is not going to be registered with the land charges act furthermore under Schedule
three of the 2002 Act interests of a person in actual occupation of the land override
dual interests or dispositions. However, a legal remedy for this however stems
from George complying with the statutory requirements of section 27 7 of the
land charges act which will allow for Agatha’s claim to be overreached due to
the fact that she does not hold any legal tittle in the land and that George had
no notice of her beneficial interest prior to the sale.

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The general rule applied to
registered land in accordance to section eight of the 2008 act is that
interests whether they are equitable or legal take priority in the
chronological order in which they were created meaning earlier registered
interests take priority over newer ones. Caroline has acquired an easement over
Georges land. It is likely that this easement was acquired by express grant
this would mean there will be a legal deed that refers to Caroline obtaining
this easement due to the fact that she contributed a lot of money to have this
benefit. An easement required by express grant is legally binding and in
accordance to section three of the land charges act qualifies as an overriding
interest unless George can prove that it was not oblivious upon reasonable
inspection of the servient land and this easement was not known to him
furthermore, the easement would stand if Caroline can prove that one year prior
to the sale she was using the parking space. Furthermore, it is arguable that a
constructive trust was made between Caroline and the previous owner being she
pay for the resurfacing and he would allow her to park there.  

The claim made by ross is based on
that of a covenant. A covenant relating to freehold land is a promise contained
in the properties title deed which the covenanter makes a promise to do or not
do a certain act. The promise made that the stable block would remain a stable
block is a restrictive covenant meaning that it his must refrain from building
upon it however legally as George was not aware of this covenant when he purchased
the land the courts would not require him to take on the burden of the land as demonstrated
In Rhone v Stephens2 where
the judge found that when a property is conveyed without restrictions the purchaser
is able to do as he pleases provided he doesn’t break any statutory provisions
however it is likely that the  burden of
the positive covenant will transcend the change in ownership due to the fact
that the dominant land benefits and the intention was for the owner of the
servient land to continually meet the cost and in accordance with the law of
property act 1925 which states that the covenant must be upheld if the intention
was for it to be. Furthermore, if the covenant has been annexed to the dominant
land then the restrictive covenant may transpire the sale also.

Drakes claim like Caroline’s Is
based on him acquiring an easement however he has acquired it through
prescription. Prescriptive rights may be acquired by one freehold owner from
another however this cannot be done illegally.  In accordance with the prescription act 1832
in 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 however
that drake can enforce this claim as section three of the act determines that the
easement must have been taking place for 20 years furthermore the act doesn’t
apply to small holdings rather only freeholds.  

What difference, if any, would it
make to your answer to (i) above if title to Trenwith had been unregistered
when George purchased it from Francis?

If the land was unregistered, it
means that it wasn’t registered under the land charges act 1972. Priorities of
interests in unregistered land has been described as the central problem of
conveyancing. this is due to the fact that the idea of registered land was
created in order to simplify the system. They key difference between purchasing
unregistered land as opposed to registered land is that the person buying the
title deed must investigate the sellers title to the land by looking at both documentary
sources and physical inspection of the property meaning it falls down to the
seller within reason to determine the easements covenants and trusts associated
with the property.

Unregistered land relies heavily on
the doctrine of notice. Under the doctrine of notice, a bona fide purchaser
meaning the purchaser of the title deed of a legal estate will take priority
over any unregistered land charges provided they did not have any knowledge or
notice of their existence3.
Any registered interests under the land charges act however would qualify as actual
notice but only a limited number of charges can be registered on unregister
land such charges are set out in section two of the act.  In regards to Agatha claim if the land was unregistered
it is arguable that George could claim that he was a bona fide purchaser as a
resultant trust would not qualify to be registered under the land charges act and
there for he would have had no actual notice of the interest this would mean
that as a purchaser he would have no obligation to abide by this interest under
the doctrine of notice. As a result of this Agatha would have to claim her
equitable interest from the trustee that sold the property. As George purchased
the property in good faith. This would be a similar situation for both Caroline
and drake as no notice was provided.

 

In the case of ross however if the land was unregistered it
is likely that his claim is enforceable as restrictive covenants after 1925 are
registerable under class d of the land charges act if ross registered this
charge George would be bound by it as he would have had actual notice of the
interest. In the instance that ross failed to register this charge under the
land charge register prior to sale of the relevant land is void as against a
purchaser meaning that George will not be bound by the burden of the covenant.

 

1 Gissing v Gissing 1971 AC 886

2Rhone v Stephens  1994 2 AC 310

3 https://www.lawteacher.net/free-law-essays/land-law/land-law-doctrine-of-notice.php

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