Land Property Rights

Land attribute RightsA number of prominent shimmys concerning land and proportion propers, which entertain mainly involved women, rush been communicate throughout the previous few decades. The above scenario states fundamental principles within the rule of law that have been brocaded in past cases. In consequence, this paper lead be considering various different outcomes of measur fitting salute decisions, along with the relevant make a motions and law that accompany much(prenominal) proceedings. In the scenario, it appears that John, the regent want to sell Fairview Cottage, withal Mary, the beneficiary objects to this.Following this, considerations impart be given to the given scenario, and what advice should be given in such circumstances.Land law recognises two forms of property ownership, which have been defined as legal ownership and dear or honest ownership. Beneficial ownership concerns a persons decent-hand(a)(a) to live in and use the property, along with the right to any financial gains when the property is sold. The result of beneficial ownership apprize, in that respectfore, signifi send packingtly affect the bargain of a property.The issues concerning beneficial post were highlighted in Turton v. Turton (1988), during which the Court agreed on the notion that beneficial liaisons were subordinate upon the intent of both parties when purchasing the property. In Walker v H either (1988), LJ Nourse state, It must always be remembered that the basis on which the court proceeds is a common purport, usually to be inferred from the conduct of the parties that the admitant is to have a beneficial sideline in the house. In the common case, where the intention can be inferred scarcely from the respective parcels, either initial or on a lower floor a mortgage, to the cost of its acquisition, it is held that the house belongs to the parties beneficially in proportions corresponding to those contributions (As quoted in Family Law Week, 2007).In order to establish a beneficial cheer the claimant ineluctably to prove a resulting trust by showing that it would be inequitable for the legal owner to claim a sole beneficial ownership (Privy-council.org.uk, 1999).A resulting trust is where ones sh atomic number 18 of the property is proportionate to their contribution made. It Arises due to the intention of the parties. In the case of Drake v Whipp (1995) 28 HLR 531, Peter Gibson LJ stated that it is crucial to know between the different types of trusts. He argued that the distinction was of crucial importance in deciding the size of the claiments size in terms of contributions made. The case of Bull v Bull 1955 1 QB 234 shows the intention of the parties can be determined by the contribution made. In this case Lord Denning in the Court of Appeal stated that the shargon of the property should be in his or hers respective contribution and besides explains that each of the parties is authorize to the possession of the land if they gave a respective contribution. Peter Gibson LJ in Curley v Parks 2004 EWCA Civ 1515 move on explains that all contributions made at the time are relevant. Later contributions are not relevant for a resulting trust.In this scenario, Mary has contributed 50% of the purchase price. The contributions were made with the intention of the property creation used as a family home for the couple and their 3 children. Thus she has an equitable/beneficial engagement under a resulting trust. It is in like manner obvious that the contribution was made at the time of purchase, so a resulting trust will be applicable for Mary.Once its established somebody has a equitable/beneficial interest i.e a resulting trust, it is also important to note if they are in developed occupation, if so then their interests will be predominant. at that place is no stautory definition of what is meant by unquestionable occupation. spellual occupation was defined by Lord Wilberforce in Wi lliams Glyns Bank Ltd. v. Boland 1981 as some physical presence with some degree of permanence. This was go on confirmed by Lord Oliver in Abbey National Building Society v Cann and Another 1991 1A.C. 56 where he further stated the emphasis on the degree of permanence. Lord Oliver also discussed when the claimant must be in actual occupation. He said actual occupation required to support such an interest as a subsisting interest must exist at the date of completion of the transaction giving rise to the right to be registered. The House Of Lords also said that purchaser is bound by all overriding interests, and so giving more rights to the current occupier. The case of Ferrishurst Ltd v Wallcite Ltd 1991 further indicates the necessities for an overriding interest. Once an overriding interest is shown then he/she will have greater rights.In this scenario Mary lives at Fairview Cottage which indicates that she lives there with a degree of permanance. She also fulfils Lord Olivers c riteria because she still lives at Fairview Cottage along with her children. Once actual occupation and beneficial interest are proven then a overriding interest will be present and Marys rights will be greater than any other persons. The Land Registration Act 1925 (LRA) confirms this, where it states. The rights of every person in actual occupation of the land or in receipt of the rents and dough thereof, save where enquiry is made of such person and rights are not disclosed.Another important topic to discuss is the issue of overreaching. In City of London v. Flegg (1988), the court ruled that the Fleggs had no interest in the house once the payment had been paying(a) to the Maxwell-Browns, since their interest had been overreached (Todd, 1996). In this case, Mr and Mrs Flegg claimed a beneficial interest in the property by virtue of s.70(1)(g) of the LRA 1925. According to Todd (1996), this decision would probably be different today, interest the enactment of the Trusts of Lan d and Appointment of Trustees Act 1996 (TOLATA), because overreaching would no longer hand. Now, overreaching would scarcely occur where the money is paid to atleast two regents. Overreaching doesnt occur where the money is only paid to 1 trustee as seen in Williams Glyns Bank Ltd. v. Boland (1981). This led to Lord Wilberforce making the following statementa hubby or a wife (in each actual case a wife) who has a beneficial interest in the marital home, by virtue of having contributed to its purchase price, but whose spouse is the legal registered owner, has an overriding interest binding on a mortgagee (Wilberforce, 1980. As quoted by Mary Rose Plummer, 2007).In this scenario it is workable a potential purchaser may be able to overreach Marys interest if money is paid to atleast two trustees. However, it is un seeming that Marys interests will be overreached as there is only 1 trustee i.e. John.The rights of an resident physician are dependant upon their legal status in rela tion to both the ownership of the given property and the other party. Individuals that are either married or registered in a civil coalition, according to British law, are automatically entitled to occupancy rights. In consequence, even when a spouse is not mentioned in the title deeds, he or she still has a right to live in the matrimonial home, as stated by the Family Law Act 1996. S.30(1) (FLA) , where the spouse can occupy house if owned by other spouse. However, this right is dependant upon where a divorce or dissoluteness of a civil partnership doesnt occur.In consequence, therefore, a person who is not on the title deeds, does hold certain occupancy rights. S. 31(10)(a) FLA 1996 states that matrimonial home rights are minor interests. For a minor interest to be protected, it must be registered by entry on the register of a calling card. A notice is defined by the LRA 2002. An entry of a notice will protect the interest from any subsequent purchasers. If a notice isnt regist ered then ones right/interest may become void.As the property is legally owned by her spouse, Mary has the right to occupy it. In order to occupy the house however, she must register this right, by submitting a notice on the register. . It can also be argued that her interest as a spouse is only a minor interest, in relation to this a minor interest must also be registered under S. 29 LRA 2002. If this interest is not registered then it will not be binding.In addition, not only is Mary physically present, but she also holds clear occupancy rights, which include the right to exclude all those who do not hold the same rights. Fairview Cottage is clearly a matrimonial home, which was bought with the intention of being inhabited by both spouses, along with any existing or future children, of whom all would have a beneficial interest within the property.The fact that Mary is married to John, that they have three children, and has an equitable interest in the property as that she contribu ted financially towards the purchase of the property is clearly in Marys party favour as stated in Family Law Week 2007 where it said If you are married or in a civil partnership, your spouse or civil partner cannot sell the family home without your permission, even if your physical body is not on the title deedsIn addition, when considering the circumstances outlined within the given scenario, it is bare that Mary and John bought the house as a matrimonial home in which they intended to bear their family. As the couple are still legally married the house is still the family home, so the intention is still ongoing.S.14 of TOLATA 1996 lets anybody who has any type of interest in trust property to make an application for sale. In practicality, Mary can rehearse to the court to prevent John selling the house, or John can apply for the court to grant permission for sale. Even a potential purchaser wishing to obtain the house can apply. As outlined in TOLATA 1996, matters referring to determining an application in accordance with parting 14 are dependent on are stated in S.15S.15 (1)(a) The intention of the individuals in attaining the property.S.15 (1)(b) The purposes or reasons for purchasing the property.S.15 (1)(c) The welfare of legal occupants, including children.The intentions of John and Mary when purchasing Fairview Cottage, as this paper has clearly demonstrated, was to pop the question a matrimonial home, which indicates that both had a common intention. The issue of matrimonial home is further discussed in S30 Family Law Act 1996, whereby a spouse has the right to occupy a property is he/she has a beneficial interest. Mary successfully fulfils this criteria. As S.15 (1)(a) and S.15 (1)(b) are still in existence, the court are in all likelihood to find in favour of Mary. They should prevent John from forcing a sale upon her.In addition to this, and in reference to the third reckon S.15 (1)(c), the interest of the children is also and seen as an important consideration when considering beneficial applications. In the case of Re Evers trust 1980, LJ Omerod stated that it is important to underlay the importance of intention of the trust. In this scenario it was to prvide a family home. He further states that if the children are not mature it would be wrong to order a sale. This is further reiterated in the case if Williams JW v Williams MA 1976. Therefore in this scenario, if the children are young, then the court is apparent to find in favour of Mary, though if the children are mature then that fact should aid John. The ages of the children are unknown. Also, it is not sure what age is considered as mature (it could be 18 or 21). If any of the kids are under 18, then a ruling in favour of Mary is likely. However, Judge Wroath in the case of TSB Bank plc v Marshall Others 1988 stated that even if the children are considered as adults, the courts may not deliver this issue into consideration when deciding on the sale of a property.Article 8 of the Human Rights Act (1998) states, Everyone has the right for his private life and family life, his home and his correspondence, which infers that children, who are profoundly affected by change brought closely by parental disputes such as that portrayed within the given scenario, are protected by law. However the courts are not as likely to consider this in practicality. The courts are more likely to consider S.15 TOLATA 1996. However, as John is the legal owner/trustee of Fairview cottage, it is possible for him to sell under S14 TOLATA 1996 whereby the courts can grant him an application for sale. The courts in doing so would consider the factors listed in S.15 TOLATA 1996, to determine what action to take.In conclusion, it is unembellished that Mary has equitable interest of the property. An equitable interest together with actual occupation gives her an overriding interest. If she has this overriding interest then her position as a beneficiary would be e ven stronger, as her interests would change by reversal the interests of any other persons. However it is possible a potential purchaser may be able to overreach her interest. This is only applicable to where money is paid to two trustees, in this scenario John is the only trustee so it is unlikely that this will occur. If John wishes to evict Mary then he must apply under S. 14 TOLATA 1996. The courts will then consider the factors in S. 15 and any other factor it wishes to make a decision in regarding the sale. However, as outlined above it is unlikely that John will be successful. Although John is legally the sole proprietor of Fairview Cottage, the circumstances surrounding the purchase of the property powerfully indicate that Mary is in a stronger legal position. The matrimonial status of the couple, for example, the fact that Mary significantly contributed towards financing the project, the original intentions of setting up a matrimonial home, and the presence of children, a ll indicate Marys right to beneficial ownership.