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Published: Fri, 02 Feb 2018
Asserting a right of way and use in land law
Ted is the registered freehold proprietor of Uplands and Lowlands. The title to both properties is absolute. At the time he became registered proprietor there were no notices and restrictions on the register, and both properties have been registered titles since 1975. Ted is the owner of the legal estate in both properties and has the legal interest in the properties. These interests are valid against the whole world. Third parties may hold interests in land and Emma, Jack and Lucy are all asserting a right in Jack’s property. There rights are not registered. The Land Registration Act 2002(LRA 2002) has as one of its aims, to ensure that the register is an accurate and complete record of all the interests in the land. There are still some unregistered interests that are recognised, especially in Schedule 3 of the act, which lists unregistered interests that override registered dispositions. To best advise Ted on whether he is bound by the rights claimed by Emma, Jack and Lucy, we will consider the nature of each of their rights in turn.
Emma is claiming a right of way over Uplands. This is based on a letter dated the 13th December 2003 that the previous owner Ian wrote to her. The letter states that in return for a payment of £1,000.00 he granted Emma a permanent right of way over a track across uplands for the benefit of Emma’s adjoining property. The letter is signed by both parties and Ian has confirmed that it is genuine. According to the Law of Property(Miscellaneous Provisions) Act, 1989 (LT(MP)A 1989) for a contract to convey an interest in land it must be in writing and contain all the terms that the parties have agreed. On the face of it, this letter would constitute a valid contract.
Now we need to consider the type of right that Ian gave Emma. It is a right of way and this is an easement. The court in Re Ellenborough Park stated that there are four essential elements of an easement. Firstly, there must be a dominant and servient tenement. The dominant tenement is the land which carries the benefit of the easement (Emma’s land) and the servient tenement is the land over which the right is exercised (Uplands). Secondly the right must accommodate the dominant tenement in other words it must be connected with the use of the land and must benefit the land. This was stated in the contract to be for the benefit of Emma’s land. Thirdly the dominant and servient tenements must not be owned and occupied by the same person. Finally, the right must “lie in grant.” This generally means that it is a right that is capable of being granted by deed. A right of way is a recognisable easement. It must also be granted by a person capable of granting the right. It is therefore clear from the above that Emma has an easement of right of way over uplands. We now need to consider whether this right affects Ted, who was not party to the original agreement and who had no notice of the right.
When the right was granted to her, Emma should have protected the right by entering a Notice on the register of Uplands. The LRA 2002, S32 (1) defines a notice as “an entry in the register in respect of the burden of an interest affecting a registered estate or charge”. She could have applied for an agreed notice with the consent of Ian or a unilateral notice without his consent. The notice would have protected her right of way, as it would be notice to all the world of her right. She failed to protect her right by a notice, but may still have a right by virtue of Schedule 3 of the LRA 2002.
Schedule 3, paragraph 3 concerns legal easements and these override a registered disposition if it can be proved that the person entitled to the easements (Emma) shows that the right had been exercised in the period of one year up to the date of the disposition. In other words, for Emma to have a right against Ted, she must prove that she used the right of way over the path at any time during the year preceding the date he acquired Uplands. If she can do so, her right of way would bind Ted.
Jack has a lease dated 1 November 2003, granted by deed for a term of 6 years, relating to Lowlands. By virtue of the Lease Jack has the right to graze cattle on a portion of Lowlands from the 1st April to 30th September every year. Now a lease may be defined as a grant of exclusive possession for a fixed or determinable period. Both these elements must be present, for a lease. Firstly, exclusive possession, which means the right to exclude all persons from the property, including the landlord. Secondly, for a fixed or determinable period, which means that at the commencement of the lease, both parties must know its duration. From the information given it seems that Jack has a valid lease.
We now need to consider what Jack should have done to protect his right on Lowlands. According to the LRA 2002 (s3 and 4) a lease for a term not more than seven years cannot be registered with a separate title . It should have been protected by a notice on the register. As this was not done, we will have to look at Schedule 3 of the LRA 2002. Paragraph 1 states that a leasehold estate of land for a period of not more than seven years from the date of grant will override a registered disposition. There are two exceptions to this rule. One of these exceptions is if the lease falls within s4 (1)(d.) This is an important exception as this section refers to reversionary leases which take effect in possession more than three months from the date of the grant. These leases would not override a subsequent disposition. Jack’s lease was granted on the 1st November 2003. However, it would only take effect in possession on the 1st of April 2004, which is more than 3 months from the grant of the lease. This lease would not be overriding and therefore not bind Ted.
Ted lives on Uplands with his wife Lucy. Ted is the sole registered proprietor of Uplands and has now decided to divorce Lucy and sell the property. He wants to know if Lucy can take any steps to prevent the sale of Uplands. The relevant law is the Family Law Act 1996 (FLA, 1996). S30 of this act confers Matrimonial Home Rights to spouses where the other spouse is the owner of an estate in land. The right is not to be evicted if in occupation and the right, with the leave of the court, to enter and occupy if not already in occupation. S31 of the FLA 1996 states that these rights constitute a charge on the estate. In the case of registered land, this charge should be protected by the entry of a notice on the register (s31 2(10) a). These rights can never be considered overriding in terms of s31 (2(10) b). If this right is protected by a notice in the register, it would bind all future purchasers. There is no indication of whether Lucy has protected her matrimonial home rights by the entry of a notice. Where a spouse has matrimonial home rights, s33 gives the court the power to make an occupation order which can be used for various purposes including excluding the owning spouse from the property. The court will grant this order by considering the needs and resources of the relative parties and any children living with them. Another important law is the Matrimonial Causes Act 1973 which gives the court wide powers to make adjustments in the ownership of property between divorcing parties.
In summary, Lucy may have a right to remain in the matrimonial home if her right is protected by entry of a notice in the register of Uplands. If not protected, the court may on divorce, make an order granting Lucy a share in Uplands, in which case she can prevent the sale of the property, as a co-owner.
Before 1926, joint tenancies and tenancies in common could exist at law and in equity as legal or equitable estates. Since the Law of Property Act 1925 (LPA1925) the law relating to co-owners was changed. Under this law, where land is held by co-owners the legal estate is held on trust by the co-owners ;( s36) and a tenancy in common cannot exist in legal form (s34.) This means that the legal estate in land that is co-owned will always be held by joint tenants. The equitable estate can be held by either beneficial joint tenants or tenants in common.
As the legal estate is held on trust, the co-owners hold the legal estate as trustees. The legal estate cannot be vested in more than four persons in terms of the Trustee Act 1925, s34 (2).In order that that co-owners hold as beneficial joint tenants, four conditions must be present, and these are known as the “four unities”. They are the unity of possession, which means that each joint tenant is entitled to possession of the whole of the estate. Each is equally entitled and none can identify a part of the land that he alone is entitled to. The next is the unity of interest which means that each joint tenant’s interest must be the same in extent, nature and duration. Next is the unity of title, which means that each joint tenant must claim title to the land under the same document or transaction. Finally, the unity of time, which means that all co-owners must acquire their interest at the same time. If any of these unities are missing, then a joint tenancy won’t exist. If they are all present, then a joint tenancy may exist, depending on other tests. The first extra test is whether the grant to the co-owners expressly states that they hold as beneficial joint tenants. Another extra test is if words of severance are used in the grant to the co-owners. These include words like “equally” or “in equal shares”. If these exist, then they will hold as tenants in common. Finally, equity may presume a tenancy in common, in certain circumstances. These are if the purchase money is provided in unequal shares; or where the co-owners hold as partners or where the co-owners have lent money or a mortgage and there is no indication to the contrary.
Red land is conveyed to A, B, C (13), D, E, and F as beneficial joint tenants. A, B, D, and E will hold the legal estate as beneficial joint tenants, as there can be no more than four owners of a legal estate, under the TA 1925 and the LPA 1925. C cannot hold a legal estate as he is a minor. A, B, C, D, E and F will hold the equitable estates as joint tenants.
Blue land is conveyed “to J and K as tenants in common in law and equity” They contributed equally to the purchase price. J and K will hold the legal estate as beneficial joint tenants in terms of the LPA 1925. The equitable estate would be held by them as tenants in common, as this is how the grant to them is stated and this is conclusive.
Yellow Buildings is conveyed “to M and P” who are partners in an architects practice. They contributed equally to the purchase price of the buildings for their practice. The legal estate would be held by M and P as beneficial joint tenants, in terms of the LPA 1925. The equitable estate would be held by them as tenants in common in equal shares as equity presumes a tenancy in common when the co-owners hold as partners.
As we have seen from the previous discussion in part A, the essence of a joint tenancy is that each joint title is whole entitled to all of the jointly owned property. No joint tenant owns a specific share in the property, but each owns the whole property with the other joint tenants. As such the right of survivorship applies to joint tenancies and on the death of one joint tenant, their share automatically passes to the other joint tenants, no matter what their will provides a joint tenancy may be severed during the lifetime of a person. This only applies to the equitable estate as it is not possible to sever a legal joint tenancy.
The first way to sever a joint tenancy is by notice in writing. This doesn’t apply in this case. Another way to sever a joint tenancy is by doing such other acts or things as would, in the case of personal estate, sever the tenancy in equity. The case of Williams v Hensman is important in this regard. It gives three methods for a person to sever his joint tenancy. Firstly by an act of one of the persons interested operating upon his own share. This includes sale or mortgaging his share. Secondly, severance can be by mutual agreement. In other words all the joint tenants can agree to sever the tenancy. The agreement can be express or inferred from the conduct of the parties. In the case of Burgess v Rawnsley it was held that an oral agreement by one joint tenant to purchase the share f the other had effected a severance even though there was no written memorandum to satisfy the predecessor to the LP(MP)A 1999. This principle was reaffirmed in Hunter v Babbage where a divorcing couple’s unenforceable agreement was held to sever the joint tenancy when the husband died before the agreement was formalised. I
On the facts given to us, R indicated his intention to sever the joint tenancy. He reached an agreement with his brothers. This agreement was not finalised and certainly did not satisfy LP(MP)A 1989. However, according to the principle of William’s v Hensman, the agreement was made between the joint tenants to sever the tenancy, and so it would be sufficient to constitute a severance.
Accordingly, R’s legal interest in Green Cottage would by survivorship go to his brothers S and T who would hold the property as joint tenants in equal shares. His equitable interest in the property would in terms of his will go to V, who would hold as a tenant in common with S and T in equal shares.
- Gray, K and Gray, S F : Elements of Land Law (Fourth Edition); Oxford University Press, 2005.
- MacKenzie, J A and Phillips, M: Textbook on Land Law (9th Edition); Oxford University Press, 2002.
  Ch 131
 (1861) 1 John & H 546
  Ch 429
  EGCS 8.
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