Traditional Land Law - Essay Example

Land Law Fixtures: One of the first aspects that must be considered in regard to the items that Lords Bank considers to be fixtures is to determined by a reference to the contract between the two parties. For example, in the recent case of Taylor v Hamer1 the seller remained some flagstones from the property but the buyer contended that they were fixtures, since their removal had not earlier been specified by the seller and they were a part of the land itself. The National Conveyancing Protocol requires that a vendor supply a list of the items that are for sale2, otherwise disputes are likely to occur when the forms are incomplete or absent, as was the case in TSB Bank Plc v Botham.3 This aspect was also applied in the Taylor case, where it was held that the time for assessing whether an item is a fixture or chattel is at the time of contracting, otherwise it could amount to concealment. Therefore, a great deal will depend upon the contents of the mortgage contract Freddy has with Lords Bank and whether or not it has been specified that certain items will not be considered fixtures for purposes of the contract. When the question concerns the determination of whether or not an item belongs to a house, then it must be such that it becomes a part of the land itself. The case of Elitestone Ltd v Morris4 demonstrates this principle. In this case, the property in question was a house that had been prefabricated and stood on cement pillars so it was viewed as personal property (chattel) by the Court of Appeal. However, when the case went to the House of Lords, it was held that a removal of the building would have entailed its destruction, therefore the building was a part of the land itself and could not be removed. However, in the case of Chelsea Yacht and Boat Club v Pope5 , a house on a barge that was attached at the side through gas and electricity cables, was not deemed to be a part of the land, but was considered personal property that could be removed. Therefore, when the position on fixtures/fittings has not been clearly specified in the contract, the most important aspect in the determination of whether an item is removable or not will depend upon the extent to which it is considered to be a part of the property itself. Applying this distinction therefore, items which become a part of the house will be considered to be fixtures and will not be removable. However, items which do not become part of the house but are removable will be considered fittings and they can be removed. The test that is used to determine whether or not an item is a fixture will be determined by the test of annexation, in which two aspects are considered: (a) The degree of annexation of the object to the house or how it is physically attached to the house (b) The purpose for which the annexation has occurred. For example, in the case of Berkeley v Poulett6 Lord Scarman applied this annexation test. The items in question were a sundial weighing 5 tonnes, a heavy statue and paintings which had been screwed to the walls inside a cabinet. However, despite the fact that they were attached to the house, for example the paintings by screws, Lord Scarman held that they could be removed and would therefore not be considered fixtures. In the case of Leigh v Taylor7 the House of Lords held that greater focus was to be placed on the purpose in annexation while determining the nature of the item. In the case of TSB Bank plc8 where the issue was a similar one where the buyer defaulted on mortgage, the Court held that the purpose of annexation would be important, as also how much it would cause to the property if the item in question was removed? If easy removal was possible, it would not be considered a fixture. Applying the precedents above to the items that are being contested by Freddy, the antique chandelier is likely to be considered a fixture, since it could have come along with the house. Also, while assessing the purpose of this item, it is placed on the ceiling and affixed there for the enjoyment of the inhabitants, therefore the purpose test of annexation to be deemed a fixture may be satisfied. In Jones v Lamdin10 a seller’s removal of an ornate door and its replacement with one of plywood was successfully contested by the buyer, since it could be considered to be a part of the house and this precedent could be successfully invoked to retain the chandelier as a fixture. However, where Freddy’s multi-gym is concerned, it may not be considered to be a fixture. While it has been bolted to the wall for safety reasons, it is likely that these bolts can be removed without causing any significant damage to the walls, therefore they will be considered to be fittings. For example, in the case of Hynes v Vaughan11 a garden sprinkler was seen as a fitting because it could be removed fairly easily. It also appears unlikely that Freddy’s cricketing nets and the metal polls will be considered a fixture. The polls may be weighty but they are unlikely to be fastened to the floor, since they stand on their own weight, therefore when considering the purpose of annexation, they may be fittings. The sundial and statue in Berkeley cited above, were also weighty, but they were viewed as fittings. The purpose for which the item was used was as a part of Freddy’s profession, therefore it is his personal item rather than something which belongs to the house and on this basis, the purpose of the annexation would support its classification as a fitting. It could be argued that the designer furniture made of old cricket bats could also constitute a fitting when focusing on its purpose, since it was designed by Freddy. However, this furniture has been fitted to the floor rather than merely placed there; therefore it is likely that removing the items would involve tearing up the floor in order to dismantle them. Therefore, by applying the standard established in TSB Botham Plc cited above, since removal of the furniture is likely to cause damage, it may be viewed by the Courts as a fixture. Therefore, in conclusion, Freddy can contest the classification of his multi gym and cricketing nets as fixtures because they may be viewed as fittings, but the bank is likely to be able to successfully claim the chandelier and furniture as fixtures. License Agreements: Although the agreements signed by Michael and Shane are termed, license agreements, it could be argued that they in fact equivalent to tenancies, because they enjoy exclusive possession. For example, in the case of Street v Mountford, Lord Templeton stated, “If exclusive possession at a rent for a term does not constitute a tenancy, then a distinction between a contractual tenancy and a contractual license of land becomes wholly unidentifiable.”12 As pointed out by Anderson13 in discussing this case and reviewing the traditional law, the notion that exclusive possession can still be equated to a license where the “nature and quality” of occupancy is “personal” will not stand. In Michael’s case, he has enjoyed exclusive possession to the flat, therefore his occupancy is more in the nature of a tenancy. Moreover, it must also be noted that the degree of interference from the licensor in terms of entry and shared possession is minimal or negligent in Michael’s case, since Ricky lives abroad for most of the time. The question of shared possession came up for example, in the case of Shell Max and BP v Manchester Garages14 where the privileges reserved by the owner in terms of entry, repair and inspection were so extensive that the right to exclusive possession was questioned. But this is not a factor in Michael’s case and therefore he will be deemed to be a tenant under part II of the Landlord and tenant Act of 1954. In the case of Shane and Glen, there is a provision in their agreement that they can be asked to move out with a notice period of a week. A license confers fewer rights upon an occupier, whose residence will be deemed to be strictly a temporary arrangement. But in the case of Antoniades v Villiers15, the circumstances were such that a husband and wife signed separate license agreements for the use of the flat and there was specific provision in the agreement that exclusive possession was not given. However, the court held that since both license agreements had been signed at the same time and the couple enjoyed more or less exclusive rights to use the flat, a shared tenancy had been conferred. Applying this precedent, Shane and Glen will have an excellent case to support their bid for tenancy and therefore can enjoy the rights conferred on tenants under the Landlords and tenants Act of 1954, including the right not to be evicted. As a result, they will also be entitled to peacefully hold and enjoy the property without undue interference from the landlord, whether on the title or possession of the premises.16 On this basis, the requirement in the agreement that they may be asked to move with a week’s notice can be contested if necessity arises. In so far as Ricky is concerned, he must deal with the occupants of his flats as though they are tenants. The basic obligation of a tenant is the payment of rent and liability in this aspect is absolute.17 Therefore, Ricky will have the right to forfeit his lease with the occupants of his flats if they fail to pay the rent, since this would be construed to be a breach of the agreement between the parties. As a landlord, Ricky will have the express right for re-entry into Michael’s flat at any time, due to the breach in non payment of rent. It must also be noted that his right will be enhanced because no waiver exists in the form of either acceptance of rent18 or in making a demand for rent.19 Ricky has not demanded rent from Michael, but has allowed him to continue living in the flat, therefore he will be entitled to re-enter at any time and take over possession of the flat. Michael can apply for relief from such forfeiture of the property for non payment of rent under section 98 of the Supreme Court Act 1981 or section 138(2) of the County Courts Act 1984. However, it appears likely that if Ricky chooses to re-possess his flat, Michael can appeal the eviction but is unlikely to succeed, especially since Ricky has already allowed him to live in the flat without rent payment for some months and Ricky’s two flats will not constitute a HMO (House in multiple occupation) where there are more stringent requirements about non eviction of occupants, especially in public housing.20 In so far as Shane and Glen are concerned, they are also required to pay rent regularly in order for the landlord to allow them peaceful possession of the flat. Moreover, there is a duty in tort on tenants not to commit any waste. There is also an obligation placed upon all tenants to maintain the premises in good condition and do small jobs of maintenance as needed in order to keep the property in good condition.21 Therefore any structural alterations carried out to the premises by any of the tenants could be contested by Ricky, since it would be in violation of a tenancy agreement.22. Conveyancing Rights: Paul is the legal owner of the land, since he is the sole registered owner. The requirements of formality as set out under Section 51(1) of the Land and property act of 1925 requires that the disposition of interests in a property must be set out in writing. While Paul is the owner of the legal interest in the land, the question of the equitable interest will be determined through the formation of a trust when there is no evidence in writing, denoting beneficial interests to another party. Resulting and constructive trusts can come into effect to establish the interests of those persons who have also contributed t the property in some manner. For example, in the case of Re Rogers Question23, the wife had invested 100 pounds in cash for the matrimonial home and was deemed to enjoy an equitable interest in the property despite the fact that the husband had sole title in the property. This was also the case in Williams and Glyn’s Bank v Boland24 where Mr. Boland was the sole owner of the matrimonial home, however his wife had made a contribution in buying the home. Mr. Boland mortgaged the home and when he was unable to make payments, the bank sought to repossess the property, Mrs Boland insisted she had a beneficial interest. While this was rejected in the lower Court on the basis that sharing a home did not impute possession25, the court of Appeals reversed the decision, stating that Mrs Boland had a beneficial interest in the property since she had lived there and the bank had an obligation to honor her interest. On this basis therefore, since Michelle who claims to be Paul’s wife, has invested in the property and lived there before going on holiday for three months, may be entitled to a beneficial interest in the house. Michael may face a problem in this respect, because Section 63 of the Law of property Act of 1969 requires that reasonable enquiries on conveyance have to be made by the buyer upon purchase of the property, to determine previous owners and interests, going back at least 60 years26. Michael has failed to do this, since he has done the conveyancing himself, therefore his enquiries may not have been exhaustive. This duty of enquiry by the buyer was emphasized in the case of Kingsnorth trust Ltd v Tizzard27 where the matrimonial name was in the sole name of the husband but the wife was a co-owner who lived in the house only sporadically. When a mortgage on the property was defaulted and the husband fled to America, the wife demanded half of the proceeds, since she was also the co-owner and had an equitable right in the property. In this case, the Court held that the representatives of the mortgagee bank should have discovered the existence of the wife and the notice of her rights by making reasonable enquiries before parting with the monies. As a result, it is likely that there will be a requirement of constructive notice from Michael. This means that Michael should have made reasonable enquiries from other occupiers of the property or from neighbors or lease documents in order to discover the wife’s existence, since both husband and wife have rights in a matrimonial home. Since Michael has not used an agent, imputed notice will not be relevant in this case since imputed notice is the information a buyer can obtain prior to the sale by employing an agent to find out about a property. But since Michael has done the conveyancing himself, he has failed to discover the existence of the wife and of her equitable interest in the property. Her failure to be present at the sale or her absence from the country for a period of there months will not be deemed to be a bar or restriction upon her equitable rights in the property, especially since she has contributed half of the purchase price. It is unlikely that Michael can escape liability in this case, since he has chosen of his own free will to do the conveyancing himself and will therefore be fully liable for the consequences. If he had employed an agent and the agent had failed to discover the existence and the interest of the wife, there could have been some amelioration in Michael’s liability, however self conveyancing has reduced the chances in this area. Possibly, Michael may have one sole grounds of defense and that is to make a plea that he had no notice of the equitable interest in the home, since it was a transaction involving a fee simple estate that was duly registered in favor of Paul. He can make a claim that he had no notice at all of the beneficial interest and therefore as a bona fide purchaser who did not have notice, the equitable interest is destroyed. This will be so, especially if Michael chooses to sell the property to someone else, since in this case, the equitable interest that exists on the property will not be resurrected.28 This is probably Michael’s single option to deal the question of Michelle who has suddenly surfaced and is claiming an interest in the property. If Michael can demonstrate that he had made some serious efforts to dig into the records of the property or to question neighbors, etc but had still not been able to discover any other existing proprietary right on the property, he can support his contention that he had no notice at all of the equitable interest in the property and the Court could possibly rule in his favor. Otherwise, if Michelle can prove that she has invested half of the price with Paul in the purchase of the property, then her absence will not destroy her equitable interest and the Courts may rule in her favor. Bibliography Books/Journal Articles/Websites: * Anderson, Stuart, 1985. “Licenses: Traditional law reviewed?” The Modern Law review, 48(6): 712-717 * Royle, Richard, 2003 “Briefcase on Land Law” Cavendish * What is a House in Multiple occupation?” [online] available at: http://www.communities.gov.uk/index.asp?id=1164086 Cases: * Antoniades v Villiers, [1990] 1 A.C. 417 (M&B(L) 432 * Berkeley v Poulett (1976) 242 EG 39 * Caunce v Caunce (1969) 1 WLR 722 * Chelsea Yacht and Boat Club v Pope (2001) 2 All ER 409 * David Blackstone Ltd. v Burnett (West End) Ltd. [1973] 1 W.L.R. 1487 (M&B(L) 490 * Elitestone Ltd v Morris (1977) 1 WLR 687 * Hynes v Vaughan (1985) 50 P&CR 444 * Jones v Lamdin (1949) 2 KB 33 * Kingsnorth trust Ltd v Tizzard (1986) 2 All ER 54 * Leigh v Taylor (1902) AC 157 * Marsden v Edward Heyes Ltd. [1927] 2 K.B. 1 * Paradine v Jane (1647) Aleyn 26; 82 E.R. 897 * Re Nisbett and Pott’s Contract (1906) 1 Ch 386 * Re Rogers Question (1948) 1 All E.R. 328 * Shell Max and BP v Manchester Garages (1971) 1 WLR 612 * Street v Mountford (1985) 2 WLR 877 * Southwark LBC v Tanner [2001] 1 AC 1 * Taylor v Hamer (2002) WL 1446261 EWCA Civ 1130 * TSB Bank Plc v Botham (1996) 73 P&CR D1 * Warren v Keen [1954] 1 Q.B. 15 * Williams and Glyn’s Bank v Boland (1981) AC 487 * Wilkes v Spooner (1911) 2 KB 473 * Windmill Investments (London) Ltd. v Milano Restaurant Ltd. [1962] 2 Q.B. 373 Read More