Reflective Learning Journal - Essay Example

Reflective Learning Journal I was able to develop a good understanding of the principles of property law and its application in a variety of transactions, through my reading of various books on property law as well as through my examination of legislation and case precedents. Smith helped me to understand the distinction between the two kinds of rights that are endowed in property – rights in rem and in personam and the difference between realty and personalty. A right in personam is therefore associated with a person rather than with a tangible object and can also be called an obligation (Birks, 1985) and I was also able to understand how rights in personam will not be extinguished in the absence of a res. Hence, this provided me the basic understanding that all forms of property rights are tied to the land and are dependant upon the existence of the property or the land. My study of legislation also made me aware of the implications of the Land registration Act of 2002 on property ownership. For instance, this Act has impacted upon adverse possession which earlier allowed non owners in undisputed occupation of land for a period of more than twelve years to claim ownership rights to the land. I was able to appreciate the significance of the Pye v Graham case in this respect1 and the implications of legislative changes such as the Land registration Act and the Human Rights Act of 1998. The Land Registration Act requires that any claim for adverse possession will not automatically subsist, because the actual owner of the land will have the right to register an objection on the move towards adverse possession. The Pye v Graham decision was also recently challenged by Pye, the owner of the land, in the European Court of Human Rights, which held that adverse possession against registered land would infringe on the guarantee of free enjoyment of possessions as spelt out under the First Protocol of the European Convention of Human Rights2. Since the rights guaranteed under the European Convention of Human Rights have also been incorporated into UK law through the Human Rights Act of 1998, this has also impacted upon property law in placing a greater emphasis on ensuring that basic human rights are upheld. For example, where multiple occupancy housing is concerned, it has now become mandatory for landlords to obtain licenses certifying the fitness of the building for occupation3. This helps to ensure that the standards of repair and management in multi occupancy homes are maintained to a good standard so that the rights of the occupants to basic amenities and building standards is ensured. This module also helped to understand the distinction between a lease on a property and a license. This has often caused confusion about whether an agreement actually creates a lease or a tenancy; for instance in the case of Addiscombe Garden estates Limited v Crabbe4 an agreement described as a license was actually a tenancy. A tenancy was clearly set out in the case of Street v Mountford as consisting of the following rights: (a) enjoying exclusive possession of the premises for a term (b) for a term and (c) the payment of a certain rent5. As opposed to this, a license merely grants the rights to temporarily occupy the premises and the landlord has a right of entry at any time. It also helped me to understand how the rights of a tenant can be protected; for instance the right against forfeiture. Acceptance of rent in advance is in particular, a waiver of the right to forfeiture and re-entry, as established in the case of Windmill Investments (London) Ltd. v Milano Restaurant Ltd.6 This module also made me aware of the process of conveyancing and the issues that will play an important role in this aspect, especially in determining pre-existing rights that may be valid. For example, easement rights may grant the right of passage through land for purposes of access and in some instances, earlier easements that have been granted by former owners may need to also be honoured by new owners7. In other instances, some land may be such that the owners will be obliged to grant rights of use to members of the public, such as for example, public rights in respect of the highway.8 I was also able to appreciate how prior restrictive covenants existing on the land which place restrictions on how it can be developed may need to be considered carefully when buying land, because they would impact upon the future value of the property. Within the UK, this aspect is especially significant in the case of listed buildings and similar properties because it would necessitate an owner of a property maintaining the property i a certain manner. This module also helped me understand the difference between fixtures and chattel in terms of what will pass with a sale of the land. Fixtures will accede to the property when it is conveyed, but chattel will not and can be removed. The decision rendered in the case of Holland v Hodgson9 supported the legal maxim that what is annexed to the land becomes part of the land. Gray and Gray have however argued that recent case law has suggested that the Courts have moved away from this earlier position10 of looking only at the extent to which the article is fixed to the property and its purpose. In the case of Elitestone Ltd v Morris11, the House of Lords refined the principle of annexation further in determining whether an article is a fixture or chattel. In the Elitestone case, it was held that what is to be determined is whether the article has been set up for the purpose of enjoying it better as a chattel or whether it has been attached in order to bring about a permanent improvement to the property. On this basis, the House of Lords held that it must be determined whether an article can be said to be a part and parcel of the property, in which case it will qualify as a fixture that cannot be removed, even if it is removable without damage. On an overall basis, I found this module very illuminating, especially in the context of recent developments in the law such as the Land Registration Act of 2002 and the Human Rights Act of 1998, which have changed the land law scenario and challenged previously accepted precedents, such as adverse possession. It made me realize that this is a complex area of law, where conveyancing is fraught with complexities and it may be essential for a prospective buyer of land to thoroughly examine all other interests that may be pre-existent on the land and will consequently restrict the rights of the owner. At the same time, it was also clear to me that the recent developments in the law have contributed towards enhancing the rights of those in rented housing, especially multiple occupancy housing, because the Human Rights Act of 1998 has played a significant role in altering the priorities of the Courts in arriving at decisions in land disputes. This module also made me realize that housing law is complex and has been subject to frequent changes because it is so closely tied up with political issues such as homelessness and the rights of tenants. This is also one area of law that appears to affect most people to some degree or the other, and it has assumed prominence in recent times because of the current financial crisis that was generated due to defaulted mortgages. This has impacted upon home ownership and values and has highlighted the need for reforms in land law to ensure that arrangements are made to help people cope with the crisis. I was also struck by the significance of land law in the context of maintaining listed buildings within the U.K and the restrictions that it places upon property developers. This has also made the issue of conveyancing even more complex, because there may be beneficial interests tied up in the land by way of easements, restrictive covenants and similar aspects that may interfere with and limit the legal title that a new owner receives. It also made me understand how significant beneficial interests have become in recent times, especially in the context of the Human Rights Act of 1998 and how volatile housing law can be because of its political context. Bibliography Clements, Paul Fairest, 1996. “Housing Law: Text, cases and materials”, Routledge Gray, Susan Francis, 2007. “Land Law”, Oxford University Press Gray, Kevin and Gray, Susan Francis, 2006. “Land Law”, Oxford University Press Sexton, Roger. “Land Law textbook: Adverse possession and human rights”, http://www.oup.com/uk/orc/bin/9780199284436/resources/updates/0706/update_0706_ch21.pdf; “Multiple occupancy homes”, http://www.thanet.gov.uk/housing/multiple_occupancy_homes.aspx; Cases cited: Addiscombe Garden estates Limited v Crabbe (1958) 1 QB 513 Elitestone Ltd v Morris (1997) 1 WLR 687, HL Holland v Hodgson (1872) LR 7 CP 328 J.A. Pye (Oxford) Ltd and Others v Graham and Another (2002) UKHL 30 Windmill Investments (London) Ltd. v Milano Restaurant Ltd. [1962] 2 Q.B. 373 Read More