CASES Flashcards

Question

Doctrine of *Walsh v Lonsdale*

Answer 1

* Equity is regarded as done that which ought to be done * Equity can create an equitable equivalent of a formally defective but otherwise legal lease * The doctrine will only operate where the contract underlying the defective lease complies with the LP(MP)A * In writing * Contains all express terms * Signed by or on behalf of all the parties * Provides consideration * Can be specifically enforceable

Answer 2

* The Zarb’s lived in a house with a large garden which they acquired from Mr Desmond Little * Mr Little had sold a portion of the garden (the Strip) to Mr and Mrs Ceen, who lived at and owned the adjoining property, which was owned by the Parry’s at the time of the case * The purchase was recorded by a memorandum endorsed on the deed of gift by which Mr Little acquired Daisymore, and another document recording the transfer of land * The Zarb’s and the Parry’s disputed about the northern boundary, and in July 2007 the Zarb’s sought to take the Strip by force

Answer 3

LJ ARDEN * A claimant must act “*promptly*” and apply for registration as soon as they learn that they are not the paper owner * Paragraph 5(4) makes the unreasonable belief of the adverse possessor in the last 10 years of his possession prior to the application for registration a potentially disqualifying factor, even though this belief started out as reasonable but became unreasonable as a result of the circumstances * The paper owner will have a chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years * *_As soon as the adverse possessor learns facts which might make their belief in their ownership unreasonable, they must take steps to secure registration as proprietor_* * The trespasser will lose their right to be registered as soon as their belief in their ownership becomes unreasonable, even if they had enjoyed more than 10 years of AP THE MASTER OF THE ROLLS; NEUBERGER * It would not be good enough to establish a reasonable belief for any 10 years out of the period of adverse possession, it must be the last 10 years

Answer 4

* The belief had to subsist, and be reasonable, throughout the last 10 years of the period of adverse possession * The paper owner of the land may dispossess the squatter before the expiry of the limitation period to defeat their claim * This can be done through eviction, taking back possession, or by moving a boundary fence

Answer 5

* Mr Best saw an empty property (he was told that the owner had died and the son had not been seen for years) and did some repairs on it with the intention of making it his permanent residence * He treated the house as his own; there had been no disputes about his possession of the property, but he occupied it without any consent * Mr Best sought to register title through adverse possession in November 2012, the application being on the basis of the 10 years required by sch6 para1 LRA 2002 * The CLR decided that the application would be cancelled on the basis of s144 of the Legal Aid Sentencing and Punishment of Offenders Act, which prevented Mr Best from relying on any period of adverse possession which involved a criminal offence to establish the basis for an application for registration as the proprietor

Answer 6

* Adverse possession can be based on conduct which discloses a criminal offence contrary to s144 LASPOA

Answer 7

* Mr Boland was the sole registered proprietor of the matrimonial home * Mrs Boland had made substantial contributions to the purchase price and mortgage payments entitling her to a beneficial interest in the house * Mr Boland mortgaged the house and defaulted on payments * The bank sought possession of the property. Mrs Boland claimed an overriding interest under s70(1g) LRA based on her beneficial interest which was protected by her actual occupation of the house * The bank argued that the wife’s occupation was not inconsistent with the title offered and that an interest could not be both a minor interest and an overriding interest

Answer 8

* The wife’s beneficial interest was overriding by virtue of her actual occupation. The bank’s action for possession was therefore unsuccessful * **Actual occupation**: “*are ordinary words of plain English, and should, in my opinion, be interpreted as such*” * Does not require anything but physical presence * The view that the husband’s occupation precluded the wife’s was wrong; similarly, that her occupation was “*a shadow of her husband’s*” * Mrs Boland’s right counted as a property right to which the bank had no defence * *_Equitable interests of a spouse in actual occupation of a matrimonial home under a trust for sale are capable of being recognised as overriding interests protected by_* s70(1g) LRA * This will override that of a legal charge by a legal owner * Banks ought to make more careful enquiries into occupation

Answer 9

* The rights of a spouse under a trust for sale are capable of recognition, albeit with difficulty, as overriding interests

Answer 10

* George Cann applied for a mortgage from a building society to buy a house * Unknown to the building society, his mother (Mrs Cann) had contributed to the purchase price * The building society advanced the mortgage loan before the property was transferred to the defendant * 25 minutes before completion, the defendant’s mother moved into the address * When the defendant defaulted on his mortgage, his mother claimed an overriding interest * The defendants appealed against the granting of a possession order in the building society’s favour, and the appeal reached the HoL * S70(1g) LRA provides that an interest of a person in actual occupation may override registered dispositions * The mother claimed she had such an interest due to having contributed to the purchase price. Consequently, if she was also in actual occupation before the legal charge took effect she would have an overriding interest that would take priority over the mortgage and thus not be evicted.

Answer 11

LORD OLIVER * The occupier’s interest had to arise before the creation of the legal charge if it was to override it * When a buyer buts a property with a mortgage, the entire process is one indivisible transaction * Moving furniture in 25 minutes before the legal transfer of the property was not enough for actual occupation as this requires some degree of performance * “*A prospective tenant or purchaser who is allowed to go into a property in order to plan decorations or measure for furnishings would not, in ordinary parlance, be said to be occupying it*” * Mrs Cann’s interest did not override the legal mortgage * “*Acts of this preparatory character carried out by courtesy of the vendor prior to completion [cannot] constitute ‘actual occupation’ for the purposes of section 70(1g)*” LORD JAUNCEY * It was “*unnecessary to consider whether or not Mrs Cann was aware that George Cann would require to borrow money in order to finance the purchase*” of the new home

Answer 12

* Actual occupation must have some degree of permanence or continuity; acts of a preparatory nature carried out by the vendor are not enough

Answer 13

* Mr Bustard was sectioned under s3 of the Mental Health Act 1983, and therefore could not continuously live at her house, of which she was the registered proprietor * She visited her house weekly, but under supervision * A third partly fraudulently had Mrs Bustard’s house transferred to him, mortgaged it and defaulted on the payments * The bank sought repossession of the house #

Answer 14

MUMMERY LJ * Bustard was in actual occupation because of her persistent intention to return home, shown by the regular visits to the property * “*It is clear from citations that Ms Bustard’s is not a case of a ‘mere fleeting presence,’ or in a case, like Cann, of acts preparatory to the assumption of actual occupation*” * Distinguished the case from *Stockholm*, which involved a Saudi princess living with her mother in Saudi Arabia and owning a house in London, where there was furniture and clothing and caretaking arrangements in place, but where she had not lived for more than a year * The distinguishing feature is in the psychiatric problems of the person claiming actual occupation

Answer 15

* An intention to return home, from fraud-induced absence, of the rightful owner can count as ‘actual occupation’ for the purposes of overriding interests which bind new owners and lending

Answer 16

* D purchased an estate which had on it a metal staircase which provided access to C’s adjoining land * The right of access was neither registered nor noted in the defendant’s contract of purchase * D later removed the staircase * Cloud C claim that his right of access had been infringed upon?

Answer 17

WARD, LLOYD, KITCHIN LJJ * It would undermine the registration system if the right was allowed to bind a purchaser contrary to the express wording of s29 LRA * C could not be said to have been in actual occupation of the staircase, rendering p2 Sch3 irrelevant * C failed to execute a formal easement permitting the use of the external staircase. D did not register a caution

Answer 18

* The use of the staircase did not amount to actual occupation of any part of the staircase which could give C the status of an overriding interest

Answer 19

* In 1977, Mr and Mrs Flegg sold their home and used the £18,000 they got to buy a new home, Bleak House * Their daughter and her husband, Mrs and Mr Maxwell-Brown, also chose the house * They put in the balance to buy (£16,000) by taking out a mortgage loan which they would pay back. * They all intended to live in the house * The registered owners and borrowers were the Maxwell-Browns, despite their solicitor advising all four of them be registered * The law means Flegg’s has an equitable property right, stake or share from their contributions which the Maxwell-Brown’s * The Maxwell-Brown’s had some money trouble and remortgaged with City of London Building Society to raise £37,500 without the Fleggs’ consent * The Fleggs were suspicious and entered a caution against dealings on the Land Registry * The borrowers defaulted and the building society sought possession

Answer 20

* The building society’s charge took priority, and could use the overreaching defence against the Fleggs’ pre-existing trust right * Although under s70 LRA people with actual occupation may have an overriding interests that would take priority over a third party, this does not happen if the purchase money is paid to two or more trustees or a trust corporation * If this happens, under s2(ii) LPA, the interests of the beneficiaries will be overreached and will attach to the purchase price, not the property * The Fleggs’ rights in the property had been overreached, and thus their rights attached to the property’s sale value LORD OLIVER * There are risks to financial institutions of unsuspected hazards should they be bound by unregistered rights LORD TEMPLEMAN * “*The only protection of the beneficiaries is that capital money must be paid to at least two trustees or a trust corporation*”

Answer 21

* Overriding interests and overreaching interests have priority

Answer 22

* A fund of money had been bequeathed by a mother on trust for 8 children to be invested in order to create an income that would then be payable to her children on her death * The children consented to the fund being invested in this way, despite the fact that they were legally minors * At one point, one of the children had sums advanced to them alone * The other children covenanted not to require the trustee to make up the shortfall to them, and indemnified the trustee against the claims, for damage to their interests or other expenses incurred as a result of the advance

Answer 23

* Because all the parties had agreed to treat their interest as a tenancy in common, the joint tenancy could be severed in this way

Answer 24

* In law, all co-owned land in England and Wales must be held in a trust * Joint tenants * Tenants in common * Severance: * An act of one of the persons, operating on their own share * By mutual agreement * Where there is a course of dealing that is sufficient to show that the interests of all the parties were mutually being treated as a tenancy in common

Answer 25

* Mr Honick and Mrs Rawnsley were joint tenants, but Mr Honick occupied the property alone. They bought it thinking they would both live there * Mr Honick was thinking of marriage, but Mrs Rawnsley intended to live alone in the upstairs flat * Mrs Rawnsley did not move in and they agreed orally she would sell her share for £750. She then changed her mind and wanted more * Later on, Mr Honick died. The house was sold and his administratrix, Mrs Burgess, wanted to establish severance to get half the sale proceeds which would be more than £750

Answer 26

LORD DENNING MR * There was a sufficient common intention for severance at £750. The subsequent repudiation made no different * “*Even if there was not any firm agreement but only a course of dealing, it clearly evinced an intention by both parties. that the property should henceforth be held in common and not jointly. They entered into negotiations that the property should be sold. Each received £200 out of the deposit paid by the purchaser. That was sufficient*” * A common intention had been formed through the parties ‘course of dealings’ which in turn severed the joint tenancy BROWNE LJ * Simply because s40 LPA was not fulfilled (now s2 LPMPA) did not mean an oral agreement would not bind because that section merely made it unenforceable, not void, in absence of writing * This was based on mutual agreement, not a course of dealings, but expressed no final opinion PENNYCUICK LJ * “*The significance of an agreement is not that it binds the parties; but that it serves as an indication of a common intention to sever”* * *“One could not ascribe to joint tenants an intention to sever merely because one offers to buy out the other for £X and the other makes a counter-offer of £Y.”*

Answer 27

* An agreement to sever must be irrevocable and must be accompanied by mutual intent under the *Williams v Hensman* catalogue when interpreting s36(2) LPA

Answer 28

* Mrs Goodman had a 50% beneficial interest in the matrimonial home, her husband held the legal title * The husband left and 5 years later, Mrs Goodman and Mr Gallant, who moved in to the house * Two years later, they entered into negotiations to purchase Mr Goodman’s half share in the house. No formal valuation was undertaken, but it was estimated the house was worth around £17,500 * Mr Goodman agreed to convey the property to them for £6700 * The purchasers’ declaration of trust stated that they held the property as joint tenants * Mrs Goodman later gave notice to sever the joint tenancy. She later sought to argue that she held 75% of the beneficial interest based on the fact that she already owned 50% of the beneficial interest and contributed to the purchase of the remainder

Answer 29

* Mrs G was only entitled to 50% of the beneficial ownership * In the absence of any claim for rectification or rescission, provisions in a conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property ‘upon trust for themselves as joint tenants’ concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests * Severance of a beneficial joint tenancy results in a beneficial tenancy in common in equal shares

Answer 30

* In the absence of fraud or mistake, the declaration of trust was conclusive as to the parties respective ownership rights. The extend of the parties’ relative contributions was irrelevant

Answer 31

* Mr Marvin Fox and Marsha Shaire lived as joint tenants following a transfer at the time of her divorce proceedings in 1987 * Mr Fox died in 1992, and it was found out that he had forged Mrs Shaire’s signature, and mortgaged the property to the Mortgage Corporation * It was accepted their charge was valid against his share. However, the payments were not met and the bank applied for a possession order under TLATA 1996 s14 * Mrs Shaire argued that under s15 her interest should prevail over the creditors

Answer 32

NEUBERGER J * Parliament intended with s15 TLATA to replace trusts for sale with trusts of land, and thus give the court more discretion and “*to tip the balance somewhat more in favour of families and against banks and other charges*” * The interest of the chargee was just one factor, and there was no suggestion that it should be given more weight. It was in the court’s discretion * In the circumstances, the court would not make an order until the parties had had an opportunity to consider the consequences of the court’s conclusions on the law * “*The very name ‘trust for sale’ and the law it has been developed by the courts suggests that under the old law, in the absence of a strong reason to the contrary, the court should order sale*” * The claimant’s interest should be converted to a loan for Mrs Shaire to pay off over time. If she could not meet the requirements, then the court would order a sale (but only after consideration had been given to properties available to Mrs Shaire with the money that would be realised upon the sale) * Mrs Shaire would never have intended for Mr Fox to have a 50% interest in the property, his share was set at 25%

Answer 33

* Parliament must have intended a change in the law in setting out matters to be taken into consideration in s15 * There was nothing in the language of the 1996 Act to indicate that it upheld the old concept of the trust for sale * Byrne supported the reasoning in the LPA s30 that a case involving a bankrupt co-owner should be treated the same as one involving an application for possession by a chargee * The language of the act suggested that Parliament had intended the courts to have a wider discretion in favour of families as against chargees * The pre-1997 authorities should not be taken to be decisive in all cases

Answer 34

* A husband defaulted on mortgage payments and had divorced his wife * The ex-wife and husband lived together in a house with a child who was almost 18 years old * ***Could a sale be ordered under s14 of TLATA on the application of the mortgagee bank?***

Answer 35

* The husband’s mortgage loan had remained unpaid for over 8 years, with a debt-owing exceeding £300,000 (greater than the value of the house) * The debt was much more significant than a consideration of a minor who was almost 18, who would not suffer undue hardship if a sale order was made * On the overall evidence, it was impossible to say that the judge had erred in his findings of fact * The trial judge had erred in the exercise of his discretion in refusing to order a sale since he had failed to consider the highly material considerations, including the lack of equity in the property and the injustice to BIHM resulting from postponement of the sale

Answer 36

* The courts will try and achieve equity and justice when dealing with defaulted mortgagors and mortgagees

Answer 37

* Mr Street, by an agreement which stated was a licence, granted Mrs Mountford the right to occupy 2 rooms in his property for £57 a week * The terms of the agreement included that Mr Street could enter the rooms at any time to inspect, to read the meter, carry out maintenance work or for any other reasonable purpose, and that no one other than Mrs Mountford could occupy or sleep in the room without permission * The licence could be terminated by 14 days written notice * The agreement also stated that the licence did not and was not intended to give a tenancy and conferred no protection from the Rent Acts

Answer 38

Lord Templeman * “*An occupier of residential accommodation at a rent for a term is either a lodger or a tenant”* * The occupier is a lodger if the landlord provides extra services which require the landlord or their servants to exercise unrestricted access to and use of the premises. They are entitled to live in the premises but cannot call the place their own * The defining feature of a lease is exclusive possession * “*If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence*” * “*The only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at rent*”

Answer 39

* A monthly period tenancy is terminable by notice to quit CRITERIA FOR A LEASE * The grant of exclusive possession for a period of time which is certain * The payment of rent

Answer 40

* AG Securities possessed a long lease of a 4-bed property which was rented to Vaughan and 3 others * Each tenant signed individual agreements to lease the property * AGS later terminated all the agreements in 1985 * The tenants claimed they had joint ownership of the lease of the property and were thus afforded statutory protection * The landlord claimed that the tenants had separate licence agreements * The CoA heard the case and decided that the tenants held a joint lease. This decision was appealed

Answer 41

Could the tenants rely on a collective lease to the property (which would afford them protection under the 1977 Rent Act)?

Answer 42

* The tenants were licensees and not tenants because none had exclusive possession and their rights could not be amalgamated to give a joint lease * The right to share the flat together does not give rise to a right of exclusive possession, and prevents the rights from being combined * Mr Villiers and Ms Bridger had exclusive joint possession of their room and thus had a lease, despite the wording of the agreements which identified them as having only a licence to occupy * The rights had been crated as numerous, distinct agreements and could not be construed as the licensees possessing joint tenancy LORD TEMPLEMAN * Tenants could be described as people entitled to protected with security of tenure and maximum rents since the Rent Act 1977 * People cannot contract out of this statute; this is to protect the vulnerable from harm and to prevent consent to substandard treatment by means of coercion

Answer 43

* Parties cannot contract out of landlord and tenant legislation * The tenants were licensees and not tenants because none had exclusive possession and their rights could not be amalgamated to give a joint lease

Answer 44

* In 1930, by a sale and lease back arrangement, London City Council let a strip of land to Mr Nathan for £30 a year * The agreement stated that the tenancy was to continue until the Council required the land for road widening * Nathan was entitled to erect temporary one storey buildings on the land * The road widening scheme never materialised and the occupation continued for over 60 years, during which the benefit of the agreement was transferred to Prudential Assurance. London Residuary Body took over the free hold but they had no road making powers * Prudential Assurance were still paying the £30 a year, but the market rent was £10,000 a year * **Question**: whether the agreement did in fact create a tenancy

Answer 45

LORD TEMPLEMAN * The tenancy was too uncertain to be effective, and thus had not created a binding lease * “*A grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined the landlord does not create a lease*” * “*If the landlord does not grant and the tenant does not take a certain term the grant does not create a lease”* * The expressed lease ‘*until the strip of land is needed for road-widening’* is not a valid lease in law

Answer 46

* A lease must have either a fixed end date or a certain-to-occur absolute longstop date (e.g. the end of a person’s life) * The expressed lease ‘*until the strip of land is needed for road-widening’* is not a valid lease in law

Answer 47

* A tenancy granted by a housing association no longer attracts security of tenure under the Housing Act 1985 or 1988, and is ordinarily terminable by notice to quit * Mexfield’s standard form occupancy agreement purported to grant a tenancy from month to month which was terminable by Ms Berrisford giving one month’s notice to quit * Ms Berrisford received a notice to quit owning to late rent (which were subsequently paid) * Mexfield relied on *Prudential Assurance*, in that a term of uncertain duration cannot create a lease and thus the entire occupancy agreement was void. They argued that Berrisford enjoyed exclusive occupation of the property from month to month (a monthly period tenancy), and in accordance to *Street v Mountford*, such a tenancy was terminable by notice to quit * Berrisford argued that although at law the agreement was incapable of creating a tenancy, in equity she was entitled to rely on the terms of the agreement against Mexfield * Thus, she could seek to enforce clause 6 by way of specific performance or an injunction

Answer 48

Whether Mexfield Housing had granted Ms Berrisford a legal tenancy which was terminable only in accordance with its terms, or whether the tenancy was void for uncertainty and therefore took effect as a tenancy from month to month terminable by notice to quit

Answer 49

* The agreement was terminable only by Mexfield only in accordance with clause 6 (unpaid rent for 21 days, failure to observe stipulations in the agreement, if the tenant ceases to be a member of the Association, or if the Association is dissolved) * An agreement for an uncertain term cannot be a tenancy in the sense of being a term of years * Lord Neuberger did not remove the certainty requirement because * The principal of certainty of term has been fundamental to the concept of a term of years * The 1925 Act defines a term of years as “*either certain or liable to determination by notice or re-entry*” * The HoL confirmed the requirement in *Prudential* * A change in law might upset long established titles * Where the grant is to an individual, the agreement does take effect as a tenancy * The parties accepted that the agreement was incapable of being a valid tenancy according to its terms * It was intended that Ms Berrisford enjoy the premises for life subject to determination in accordance with the agreement * The tenancy would have been a tenancy for life prior to the 1925 Act * The term was uncertain; s149(6) LPA turned the agreement into a 90-year fixed term lease determinable under express provisions * The agreement was a tenancy for life as a direct result of the common law rule and that therefore its terms are inapplicable in this context * Ms Berrisford was entitled to retain possession because a legal tenancy subsisted, terminable only in accordance with the terms of the agreement, which Mexfield had not abided by

Answer 50

* In the absence of any contrary intention, an agreement to create a month to month tenancy creates a monthly periodic tenancy

Answer 51

* A housing association claimed possession of a property held by the defendant tenants * The tenants counterclaimed for a declaration of incompatibility in relation to the Housing Act * The tenancy agreement, stated to be a weekly tenancy, was not a secure or assured tenancy * Clause 7(3) provided that before commencing possession proceedings the association would not be sought except on specified grounds (including non-payment of rent). The association served notice to quit and commenced possession proceedings * The tenants argued that by analogy with *Mexfield v Berrisford*, the tenancy agreement was to be treated as one for an uncertain term and the rule against uncertain terms, and was to be treated as a 90-year tenancy

Answer 52

HILDYARD J * The right to serve notice depended on the existence of one of the clause 7(3) grounds, it followed that the agreement had to be treated like *Mexfield* * The possession order had been competently made * The rule applying section 149 of the 1925 Act transforming the tenancy into a tenancy for 99 years was not dependent on that being the intention of the parties

CASES Flashcards

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