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Land Law - 2

Issues

Kevin and Louise move towards the countryside, where they purchased freehold to cottage which they agreed to hold as joint tenants. However, the issue is that Louise died because of heart attack without passing Kevin her will of passing her owns to daughter. On the other hand, Kevin also suffered stroke, and because of that, Kevin’s family friend named Kevin started visiting Kevin to look after him. Kevin took a small loan secured on property from ‘Loan R Us’. The facts of the case are that Louise before her death passed everything she owned to her daughter of her first marriage. In the meanwhile, Kevin’s health was deteriorating and he was unable to return the loan he borrowed from Loan R Us. Therefore, he received an email to sell his home in order to meet the outstanding payments.

Rules

Different sections of Land Property Act 1925 apply in this case. The aim of the LPA 1925 is to facilitate the transfer of Land. Therefore the sections that apply to the facts stated above are Section 36, Section 53 and Section 196.

TOLATA 1996 also applies to this case.

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Application

There are two forms of co-ownership known as ‘joint tenants’ and ‘tenants in common’. As per the legal definition of Joint tenant, when two individual owns the property and one of them dies then the other tenant already inherits the deceased share. Therefore, the other tenant is supposed to hold the whole property[1].

Moreover, only freehold co-owner are determined as the joint tenants or tenants in common. As it was mentioned that Kevin and Lewis moved to the countryside agreeing on holding it as freehold joint tenant. Therefore, it can be stated that after the Louise death, the property is automatically transferred to Kevin as per the legal tenant definition[2]. Moreover, in the case of [Burton vs. Camden][3], it was stated that joint tenants is considered to be completely as well as equally entitled overall to estate. Moreover, joint tenancy is capable to present as either legal or as equitable interest, or sometimes both. Therefore, in the case of [Wright vs. Gibbons][4], no joint tenant is considered to holds the share in land; instead each is invested with the overall land interest.

However, in the case of [Hammersmith and Fulham vs. Monk][5], it was held by the court that no joint tenant is considered to hold share in property, regardless of whether the interest is in leasehold or freehold. Therefore, it can be stated that joint tenancy can be separated into shares; hence representing interests as tenancies in common is equal share. Joint tenancies is considered to have two distinct characteristics from tenancies in common, including the provision of survivorship, as well as needing the four unites presence, which are possession, interest, title and time[6]. On the other hand, as per the LPA 1925 section 53[7], implied land trust are not needed to be evidenced in terms of writing and also do not want the settlor signature.

Moreover, in this case, for Son to claim the house rights by the implied trust manner, or the trust that is established in unexpressed but presumable intention, it is not required to portray the pre-existing proprietary right as well as co-ownership is implied[8]. In addition, an implied trust occur by the law operation, and thus in this case would be enforced on Kevin that would need him to hold it in the part for the advantage of Son Mark. However, as Son has just contributed the purchase price, then the resulting trust will be in the favour of son, which will be considered as equivalent proportion of equitable money interest that the son has paid towards the mortgage only. Moreover, if the constructive trust is established, then the court will adopt the ‘broad brush approach’ that will take into account the contribution made to the payment of mortgage because Son will have acted to his detriment in reliance on the belief that the son held the beneficial interest[9].

As Louise post, the letter to Kevin to tell him that she desires to buy flat of her own, but the issue is that Louise forgot to give it to Kevin. There is an advantage, concerning the fair estate for preferring tenancies in common. Also, Survivorship is considered as the occasion where the tenant prematurely dies, at that point their entire interest passes to other joint tenant, consequently the expired tenant has no redirecting methods for interest to an individual they would have assigned in their will[10]. Moreover, the tenancies in common, whether formed at the outset or have come about following the severance, the co-owner is immune from the associated risk with the survivorship, and the tenant in common is now capable to exercise the whole control over their property share from the perspective of their will.

This right also called as ‘ius accrescendi’, which determines that upon the joint tenant death, the overall co-owned estate is considered to be transferred to the living joint tenants. Therefore, the joint tenant right upon death entirely extinguished upon death. Therefore, the diseased cannot have given for their rights to be passed on to nominated beneficiaries in their will because, they have no share left after death in estate to pass on, because shares do not present in joint tenant[11].

Furthermore, in the case of [Nielson vs. Fedden][12], it was held that the severance yield among the joint tenants a property share that is considered as equivalent to the shares of all other tenants in common. Unless two joint tenants are there, the act of severance will impact just the severing tenant. Moreover, there are two limits of severance, where initially it cannot be impacted by the will, and must be impacted during the individual lifetime aiming to sever the interest. Secondly, it cannot be taken for the legal estates, where it can only be impacted for the equitable estate share as per the LPA 1925, section 36[13]. Therefore, it means that the co-ownership will irreversibly take the joint tenancy form. As per the case of Re Denny [1947][14], severance can be impacted by the method of written notice as mentioned in the LPA 1925, section 36. However, in this methodology, the tenant provide the notice in writing to other tenant of their will to sever the tenancy.

In the case of [Kinch vs Bullard][15], the tenancy is effectively severed by the letter delivery as well as notice that the tenant tend to sever their interest as mentioned in the LPA 1925, section 36. Although, the wife at the delivery time did no desired to sever the joint tenancy, but this could not avoid the notice from being impactful. Under the LRA 1925, section 196[16], the notice was served accurately as it is left at the last known place of business in UK of the individual served. Therefore, the severance notice was impactful from when the letter fell through the letterbox and it was considered inappropriate whether or not the wide destroyed the letter after it had been served appropriately. Thus, concern raised whether the joint tenant had severed appropriately by the letter delivery, where one joint tenant wishes to sever the interest[17].

In addition, it is not considered possible to stipulate in will that ‘who gets the property on first’ that is owned jointly on the death of one joint tenant because land under joint tenant irreversibly or automatically pass towards the surviving joint tenant on the other’s death[18]. However, this is not considered as the case when the individual owns the property as tenant in common, where the individual can demonstrate the will who gets the land share on death[19]. Particularly in the given case, leaving the share to daughter does not form the ‘life interest’ in the spouse property. In addition, when one of the partner dies, then surviving partner automatically get to live in the property, until death as sole owner, without the will of making any stipulation. However, upon his or her death, the daughter can get the house.

For proprietary estoppel to be established, the following elements needs to be established, where the person makes the promise, upon which the claimant expects some benefit or right over property, relying on that assurance, the claimant does something or refrains from doing something, and that reliance is suitable in circumstances, and claimant suffers a detriment as a result of that reliance “such that it would be Unfair or unjust for the party responsible for the representation or assurance to go back on word."[20] As in this particular scenario, Oswald has no interest in the property as propriety estoppel was not established because he never acted in his detriment. Therefore, all three strands of proprietary estoppel are not established. The first strand is the classic English strand. It requires circumstances in which “B adopts a particular course of conduct in reliance on a mistaken belief” as to its rights and A, knowing of this mistaken belief and of its own inconsistent right, “fails to assert that right against B.”[21] Acquiescence-based proprietary estoppel may then prevent A from asserting that inconsistent right to the detriment of B. Therefore, there was no intention of Oswald shown in this scenario to have the interest or false belief. As in the case of [Thorner vs. Major][22], the promise-based strand controlled the outcome in Thorner. In that case, David Thorner worked on his relative’s farm for 30 years, completing substantial work for no pay. He did so in reliance on his relative’s promise that David would inherit the farm after the relative passed away. Accordingly, the House of Lords applied the proprietary estoppel doctrine to uphold David’s right to the farm.


[1] Teo, Keang Sood. "Land law." SAL Ann. Rev. (2017): 589.

[2] Teo, Keang Sood. "Land law." SAL Ann. Rev. (2018): 645.

[3] Burton v Camden LBC [2000] 2 AC 399

[4] Wright v Gibbons (1949) 78 CLR 313

[5] Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478

[6] IBID 01

[7] LPA 1925 section 53

[8] TOLATA 1996

[9] IBID 02

[10] Pawlowski, Mark, and James Brown. "English Commorientes and Joint Tenancies–A Fresh Look at Section 184 of the Law of Property Act 1925." Trusts Law International 33, no. 3 (2019).

[11] IBID 01

[12] Nielson-Jones v Fedden [1975] Ch 222.

[13] LPA 1925, section 36

[14] Re Denny [1947] L.J.R. 1029

[15] Kinch v Bullard [1998] 4 All ER 650

[16] LRA 1925, section 196

[17] IBID 10

[18] IBID 02

[19] MacKenzie, Judith-Anne. Textbook on land law. Oxford University Press, USA, 2020.

[20] Ben McFarlane, The Law of Proprietary Estoppel (Oxford: Oxford University Press, 2014 [McFarlane]

[21] Ibid 20

[22] Thorner v. Major, [2009] UKHL 18, [2009] 1 WLR 776 [Thorner].

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Conclusion

Upon the joint tenant demise, the whole co-owned estate is viewed as moved to the living joint tenant. Along these lines, the joint occupant straightforwardly upon death completely smothered upon death. Subsequently, the perished cannot have given for their advantages to be given to assigned beneficiaries in their will since, they have no offer left after death in bequest to pass on, in light of the fact that offers do not present in joint tenant. Therefore, Kevin is legally not liable of fulfilling the Louise will of transferring her owns in land to her daughter. On the other hand, for proprietary estoppel to be established, the following elements needs to be established, where the person makes the promise, upon which the claimant expects some benefit or right over property, relying on that assurance, the claimant does something or refrains from doing something, and that reliance is suitable in circumstances, and claimant suffers a detriment as a result of that reliance. As in this particular scenario, Oswald has no interest in the property as propriety estoppel was not established because he never acted in his detriment. Therefore, all three strands of proprietary estoppel was not established.


 

Bibliography

Laws and Legislations

LPA 1925 section 53

LPA 1925, section 36

LRA 1925, section 196

TOLATA 1996

Case Laws

Burton v Camden LBC [2000] 2 AC 399

Crabb v Arun District Council [1975] EWCA Civ 7

Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478

Kinch v Bullard [1998] 4 All ER 650

Nielson-Jones v Fedden [1975] Ch 222.

Re Denny [1947] L.J.R. 1029

Thorner v Major [2009] UKHL 18

Thorner v. Major, [2009] UKHL 18, [2009] 1 WLR 776 [Thorner].

Wright v Gibbons (1949) 78 CLR 313

Books, Articles and Journals

MacKenzie, Judith-Anne. Textbook on land law. Oxford University Press, USA, 2020.

Pawlowski, Mark, and James Brown. "English Commorientes and Joint Tenancies–A Fresh Look at Section 184 of the Law of Property Act 1925." Trusts Law International 33, no. 3 (2019).

Teo, Keang Sood. "Land law." SAL Ann. Rev. (2017): 589.

Teo, Keang Sood. "Land law." SAL Ann. Rev. (2018): 645

Proprietary Estoppel (Oxford Ben McFarlane, The Law of: Oxford University Press, 2014 [McFarlane].

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