Land Law Flashcards
Central problem of Conveyancing?
Whether Pre existing interests will bind new interests
the 3 Questions to tackle central problem
What is the nature of the right? ie is right capable of being property right
Has it been correctly created? ie deed or registration
is it enforceable against new interests? ie priority and registration
what does terra nulliius mean?
Nobody’s land
Where does Terra Nullius come from?
Related to lands possessed by first nations people such as Canada and Australia
There is an assumption that a person has a property interest if
they are in possession
How did colonisers steal aboriginal land if possession key?
Aboriginals not using land in the right way so deemed to be less than human so land is terra nullius
Milirrpum v Nabalco 1971 Australian case FACTS
First time aboriginals took action over issues of land ownership
Concerned mining rights to private company Nabalco on lands which were asserted to be those of yolnu people
question whether Australia would recognise Communal native title.
Milirrpum v Nabalco 1971 Australian case JUDGEMENT
Australia does not recognise communal native title so Yolnu people had no interest in the land
key reason was no ability to sell defined plot with communal native title therefore cannot exclude- wasteland
Mabo v Queensland no2 1992 Australian case FACTS
Concerns annexation of Mer Island to colony Queensland
Merian people occupied Mer long before colonisation
Subject to common law subsequent to colonisation so did Britain have absoloute right over land or subject to merian peoples rights
Mabo v Queensland 1992 Australian case JUDGMENT
Britain did have sovereignty over Australia meaning they had underlying title
however burdened by traditional interests of first nation Australians
meant first nation Australians entitled to possession, occupation, use and enjoyment of land against everybody
win for aboriginals compared to Milirrpum
Dorsett criticisms of Mabo v Queensland no2 judgment
Means grant of freehold interest would surplant native title
expect aboriginals to fight for their rights yet illegal order imposed upon them
Merian people using land for agriculture which is easily identifiable as a proper use of land
Ktunaxa Nation v British Columbia 2017 Canada case FACTS
Ktunaxa appealing against ski resort building in important spiritual area
after ktunaxa consulted numerous times decided would not be posssible
Ktunaxa Nation v British Columbia 2017 Judgment
Court said consultation was properly undertaken and building of ski resort did not prevent belief in grizzly bear spirit even though significance removed perhaps
what does Ktunaxa Nation v British Columbia judgment mean?
Failure to understand relationships to land that fall outside of what is considered normal
value of money and economy > spiritual values of first nations
what is manji, there is nothing past about historical land injustices reading about?
happens in Present day Kenya
indigenous people failed by post independent state because they are deprived of access to most vital means of production ie grazing cattle
similarly, courts fail to recognise their claims
decolonisation period led to Kenya’s leaders cooperating in preservation of European interest’s and could be relied upon to check any more militant demands
what is Bhandar, the colonial lives of property reading about?
Property law being a crucial mechanism for the colonial accumulation of capital
property laws and racial subjectivity developed in relation to one another
central argument that modern day property laws emerged along with and through colonial modes of appropriation
Slaves was creation of new forms of property
Uses Cheryl haris article whiteness as property —- property an analogue of whiteness? Whiteness shares critical characteristics with property ie the right to use and enjoyment, the reputational value, the power to exclude… all characteristics of whiteness shares by various forms of property.
Racial regimes of ownership - slave trade
Not just possession that is characteristic of white settlement but possession of land that justified ownership also determined by ideology of improvement
Link to John Locke
Land registration act 1862 negatives
complicated and uneven observance of transfer registrations
prospect of fraud or mistake high
ultimately ineffective
land transfer acts 1875 and 1897 fix 1862 act?
no, simplified but still dependant on voluntary registration
very few people bothered
parallel existence of registers under 1862 act
Land registration act 1925 progress but also still failures ?
interests in land generally need to be registered in order to bind future purchasers
creeping compulsory nature
problems with overriding interests … too many etc
registered and unregistered land not equivalent
land registration act 2002 fix?
met criticisms of 1925 land registration act ie limited overriding interests and harder to acquire land through adverse possession
principles of LRA 2002
marketability - conveyancing process much simpler, greater transparency etc
compulsory registration- to see off unregistered land
title by registration?
conveyancing process
pre contract
contract exchange
completion
Registration
what does contract stage mean for purchaser and seller?
purchaser has equitable interest and access to specific performance remedy
seller holds the property on trust and can enforce the contract and have contract enforced against them
what does com completion mean for purchaser and seller?
purchaser pays purchase price and equitable right falls away
what does registration stage mean for purchaser and seller?
Disposition only complete by registration but registration gap can be 1 month
purchaser has new equitable interest tom prevent seller taking advantage of title
what is Sarah Keenan, smoke, curtains and mirrors: the production of race through time and title registration about?
argues Torrens title produces temporal order (arrangement of events in time) which enables land market coordination by rendering some relationships with land temporary and making others indefeasible
what does sarah keenan say about categories produces by Torrens system?
categories materialise as race
title registries in settler colonies understood as process that demarcated populations
those demarcated as inhabiting a historical period that has now ended are rendered temporary and treated as waste to be removed from the land while those demarcated to be the lands future are made indefeasible and given right to ignore and exclude what came before them.
therefore, demarcated populations materialise as race.
what does Sarah Keenan say happens when there are disputes about title
courts do not declare anybody the owner but instead decide which party has better title at the time
therefore, title is relative rather than absolute and ultimately based on physical possession.
eg squatter has better title than rest of world except owner and even owner can lose possession through adverse possession.
how does registry make conveyance process less risky?
produces new fresh title
produce at faster rate that solicitors could make existing rights marketable under old conveyance system
Why was torrens system inappropriate for England at the time?
Opposed by aristocrats as their land threatened by title registry
Therefore Australia the testing ground as no hurdles from landed class or land Ladened
Australia terra nullius so easy for fresh title making
3 reasons for equitable property rights
1] to avoid unconscionable outcomes
2] enforcing reasonable expectations
3] mitigate against strict adherence to legal principles
Proprietary estoppel elements
Representation
Reliance
Detriment
Ives v high 1967 case facts
High and westgate were adjourning neighbours
Westgate built block of flats and foundations encroached onto highs land
Quid pro quo (favour in return for) was that high got right of way across westgate land
Written evidence as to this promise
Westgate sold to the wrights, who were aware of the scenario
High built garage on his land and accessed through wrights land
Wrights sold to ives who sought to sue high for trespass
Ives v high 1967 case judgment
equity arisen in 2 ways : by mutual benefit and burden ie he who takes benefit must accept burden, through acquiescence
Ives knew about right but it was never registered
Elements for estoppel satisfied as reliance was building the garage, detriment occurred when reasonable expectation was dashed - reasonable expectation formed on basis of promise [acquiescence]
Ives prevented from denying high the right of way
How does proprietary estoppel effect registered land?
Section 116 LRA 2002 Confirms an equity by estoppel has the effect from the time the equity arises as an interest capable of binding successors in title subject to the rules about the effect of dispositions on priority
Rules regarding the effect of dispositions on priority in section 28 LRA 2002
Priority is on basis of first in time
But purchaser for valuable consideration has defence against unprotected interests [s29 + 30]
Interests are protected by entry of notice in register or as an overriding interest
Chaudhry v yavuz 2011 case FACTS
2 neighbouring properties
Title plan for 35 owned by mr Vijays and included alleyway
Mr Chaudhry needed access to upstairs of 37
Vijay agreed that Chaudhry could build staircase in alleyway giving access to upstairs of both properties
Chaudhry paid for stair case
No problem with agreement but property then sold to Yavuz who removed the staircase
Chaudhry argues that easement by estoppel capable of binding purchaser
Chaudhry v Yavuz 2011 case JUDGEMENT
Yavuz was purchaser for valuable Consideration so has defence against unprotected interests
Chaudhry interest not protected by notice ie registered and not an overriding interest as no actual occupation
Overriding interests are the what in the mirror ?
Crack in the mirror as rights that will bind irrespective of them not being registered
Created out of social reality
What schedule relates to overriding interests in LRA 2002?
Schedule 3
Para 1 relates to leases that can override ie below 7 years
Relates to interests of those in actual occupation
Relates to easements
Why is chhokar v chhokar 1984 case important
Illustrates what amounts to actual occupation
Relativity of title principle
Title is good against all except those who can assert a better claim
Vulnerability in the idea that there is a right to defend possession against subsequent possessors ?
If completely true then would always be vulnerable to claims from earlier possessors
Asher v Whitlock facts
Williamson ( a squatter) enclosed land on manor belonging to unnamed lord in 1843 and built cottage
Lived their with wife Lucy and child marry Ann until death in 1860
Left land to wife for period of widowhood - thereafter land devolves to marry
Lucy remarries mr Whitlock in 1861 but Lucy and Whitlock do not give up possession to marry
Marry dies in 1863 followed by Lucy also in 1863
Marry distant relative argued title passed to her
Whitlock said Williamson had no title as squatter
Asher v Whitlock judgment
Distant relative title better than mr whitlocks - title relative
Elements of adverse possession
Factual possession , actual physical possession and intention to possess which need to be adverse ie without permission
Factual possession means?
Complete and exclusive physical control over the land
Hounslow v minchinton 1997 said what counts as factual possession ?
Small garden of which they did trimming and weeding
Powell v mcfarlane 1977 said intention to possess must be ?
Clear to the world
Pye v Graham 2002 facts
Grahams were licensees of pye but license expired in mid 1980s
AP period began as Grahams stayed on land and continued to work land
Grahams kept asking for new license but pye refused but did nothing to remove them from land
Grahams offered rent
Graham did for 12 year which barred pye from recovering possession ( limitation act 1980)
LRA 2002 sch 6 says application can be made for AP after 10 years but …
Registered proprietor has 13 weeks to counter and a further 2 years to commence possession proceedings
LRA 2002 sch 6 para 5 says applicant entitled to be registered if equity by estoppel or if had not done correctly when should have or neighbour boundary dispute
Best v chief land registeree 2015
Land register could not reject me best application merely because of mr bests criminalised squatting
Hypothetically possession + satisfying the new process = application successful irrespective of legal aid , sentencing and punishment of offenders act 2012
What reasons does manji give for suggesting the law might fail to remedy past harms relating to land injustices?
Land wrongs in Kenya do not fit near temporal categories of law and policy constructed around terms such as historical and land injustice
Land reform has become reduced to land law reform so critical debates such as redistributive politics have been excluded
How does bhandar colonial lives of property link to manji , nothing past about historical land injustices ?
Manji talking about land injustices in present day Kenya
Bhandar emphasising that property laws built off of colonial appropriation thus encompass racial subjectivity
Therefore obvious that current land injustices will continue
What is Blomley boundaries of property about ?
Property is “done”
Property law is complex and always courts trying to make sense of things
Easy way for layman to understand through boundaries
Gives example of trespass when crossing boundaries etc
No set of property rights can survive unless moral significance taken - understood through stable spatial boundary lines
Law commission report on land registration for 21st century 2001
Objectives of bill
Electronic conveyancing
Complete and accurate reflection of title
Make unregistered land registered
Reduce overriding interests
Change adverse possession
Breskvar v wall 1971
Breskvars owned property but wanted loan so had to execute a transfer for security purposes
Transfer not executed properly as name of transferree was blank
Second respondent who was meant to be the name filled in his grandson , first respondent
Grandson used document to register himself and then tried to transfer to third respondent who was bona fide purchaser for good consideration
Breskvar lodge caveat before transfer complete
Held even though fraud first respondent still acquired title by registration
Rosset case
Limits implied bargain to financial contribution to purchase price , deposit or mortgage repayments
Royal bak of Scotland v etridge 2001
Wife standing surety case
Bank needed to make wife aware of risks by meeting
Wife needed independent advice
Bank take reasonable steps
Williams and Glynns bank v boland
Bank needs to make inquiry to see if beneficiaries
This was not done so wife had overriding interest over mortgagor
Norgan case
Gives mortgagee another chance
John Locke labour theory of property
Connects to improvement of land or mixing labour with it
Joint tenants means
Right to survivorship
S36 aja 1970 + Norgan available
Cannot claim overriding interest based on actual occupation BS v Flegg 1988
When does overreaching apply
2 trustees ie registered proprietors
Williams and glynns bank v boland 1981
Facts and judgment and reasoning
Husband sole trustee
Falls into arrears
Wife holds beneficial interest and living in property
Wife ruled to have overriding interest
Takes priority over bank
Reasoning :
Anyone who lends money on security of a matemonial home nowdays ought to realise that wife may have a share in it
Should make sure wife agrees or make inquiries of her
Wrong to say didn’t know she was in actual occupation
How boland would go down today
Does not enable us to say mere presence alone gives beneficial interest
Does not enable us to say occupation secure s14 and s15 TOTLA
Sch 3 para 2 LRA
Bs v Flegg 1988
Boland does not apply to 2 registered properiators
Overreaching will take place even if in actual occupation.
Bristol & west building society v hemming 1985
Implied consent will negate overriding interest as if know about mortgage and benefiting
Also can extend to re mortgage situations
Royal bank of Scotland v etridge 2002
Surety case
Held banks need to take reasonable steps to ensure wives understand risks
Notice etc
Ropaegealach v Barclays Bank plc 2000
Bank exercised right to sale
Took possession as person not residing there at time
C did not need court order
Inwards v baker
Representation - don should build property on his land and will be his own
Reliance - son does not buy elsewhere and builds
Detriment - nothing left to son in dads will and half brothers try to revoke his licence
Estoppel - satisfied by life interest
