Question 2

Proprietary estoppel adequately provides a means by which, despite the lack of express
intention and appropriate formalities, a person may be entitled to a right of ownership. A
proprietary right is when someone has been granted a guarantee or promise that they have
land or property rights. The law says it is unfair for the other party to then return to their
word if they are relied on for representation or assurance. In this essay, we will look at how
the proprietary estopple can be relied on how to avoid the application of formalities and
allowing the property rights to be valid notwithstanding the lack of compliance with
formalities. It is known from the inference reached in the case of Taylors Fashions Ltd v
Liverpool Victoria Trustees that this is as much the case for proprietary estoppel as
promissory estoppel. In order to be successful in claim, the claimant must prove and satisfy
all the elements which is assurance, reliance, detriment, and unconscionability.

According to Lord Denning in the case of Crabb v Arun DC, proprietary estopple comes in to
mitigate the harshness of the street common law. Besides, it will prevent a person from
insisting on his street legal rights when it would be inequitable to do so. However,
proprietary estopple has been expounded in different ways by different judges and it has
been ambiguously defined. Nevertheless, all the formulas which the judges use are all
towards unconscionable dealings of land, and its abuse of power as well as land owners
victimizing individuals. This can be seen in the case of Jennings v Rice.

In the case of Ramsden v Dyson Lord Cranworth sited that when there is a promise which
makes a change their live and later if they go against their promise, this action is inequitable
and therefore the claimant can bring an action against them. This can be seen in the case of
Wilmott v Barber where 5 elements must be established for proprietary estopple to be
operate as propounded. First, the claimant must have committed an error in his legal rights.
Second, the claimant has to have committed actions based on this mistake. Third, the
defendant must be aware of his own right of existence. Forth, the defendant must be aware
of the claimant's error and finally, the defendant must have supported or abstained from
exercising his legal rights. According to Lord Denning, the detriment is not necessary which
he state that if the party to whom the assurance is given acted on the faith of it in such
circumstances that it would be unjust and unequitable for the party making the assurance
to go back on it. However, the equity may be satisfied in certain cases by less than an order
to convey the property since the court is concerned with the minimum equity to do justice.
This can be seen in the case of Sledmore v Delby.

Assurance

To established a proprietary estopple, all the requirement must be fulfilled and must be
connected as in the case of Taylor Fashions v Liverpool Victoria Trustees. The development
of the law of assurance shows that, while not complying with the formalities, courts will find
a way of giving effect to parties’ intention. Assurance can also be active or passive. Active
assurance could be made by the expressly or impliedly of the landlord, which tends to lead
the claimant to assume that they will have an interest in the property. In the case of Gillet v
Holt, Mr. Gillet had a right to the farm house freehold and to make good the exclusion from
the rest of farm business. In this case, even though a landlord has all the rights to change
the contents of the will, however, if a promise has been made the promise will become
irrevocable when it causes the claimant to adapt their standing to their detriment.

Generally, the court will never enforce an older will, however if any person is seeking to rely
on proprietary estopple, the older will may be adduced as documentary evidence that the
claimant was given assurance. Besides, this would not be unfair since the landlord should
not go against his promise which it could cause another to suffer detrimental reliance. There
should be a written evidence of assurance, just so the court can balance the right of the
landlord and the claimant by giving effect to the express intention of the parties.

In the case of Yaxley v Gotts, an oral agreement amounts to an assurance. This is because,
the intention that was created in the property rights is very clear. However, it is different in
the case of Cobbe v Yeoman’s Row Management, where an oral agreement is not amount
to assurance as the claimant is aware that any one of them was free to discontinue the
relationship without any legal liability.

In addition, since the oral statement method is hard to recognize as assurance and it may
not be proven clearly and accurately because of the failing of human memory. Thus, it is not
easy for the court to find the intention of the parties and it is even difficult to balance the
right. Nevertheless, if the intention can be proven clearly then the court will easily recognize
it as an assurance.
In the House of Lord case Thorner v Major represent one of the biggest departures for
formalities, allowing the assurance to be fully implied from the context of the case. This is
because there were no any written or oral statement being created properly. The court is
satisfied because it was a familial relationship and therefore the assurance was sufficient
and clear.

Reliance

Next is reliance. In this situation, the claimant must demonstrate that they relied on the
assurance. This is usually shown by changing their behavior. Besides, once assurance have
been implemented it is assumed that it was relied on. This is where charge will shift to the
landlord and he have to prove that the assurance that he gave was not relied on. According
to Lord Denning in the case of Greasley v Cooke, if there is prove of detriment then there
will be a presumption of reliance. Thus, in the absence of evidence to the contrary adduced
by the legal owner, the court is entitled to assume that the claimant did rely on the
assurance. Besides, the mixed motive does not destroy reliance as in the case of Ottey v
Grundy. Therefore, the court will not care about mixed motive and mixed motive is still
count.

Detriment

There is wide view on what is detriment. This is because, a wide range of factor can be taken
into account by the court. For example, financial contribution of the property, working on a
land or farm without pay or even giving up education or career to move in with the landlord
on believing the landlord’s word. Besides, detriment is not limited to financial sort, but also
covers the non-financial, such as time. This can be seen in the case of Grant v Great Boulder
Gold Mines and Greasley v Cooke. In the case of Inwards and Ors v Baker, the court held
that Mr Baker had the right to remain at the property. At the encouragement of his father,
his spending of money on the land raised an equity that was satisfied by granting a lifetime
license.

Unconscionability

The unconscionability is the heart of proprietary estopple and it is usually hard to defined as
there is no clear definition as to what amounts to unconscionable behavior. Besides,
unconscionability usually shocks the conscience of court. When the promise is revoked the
action of detriment and unconscionability arises. Thus, this is purely question of fact where
the court needs to assess all the facts. In the case of Yeo v Wilson, the court look at the
entire relationship and conduct of all the parties. It will also consider as unconscionable to
deny a remedy where any benefit the claimant received did not extinguish his equity. This
can be seen in the case of Campbell v Griffin.

Remedy

The court must achieve minimum necessary justice between parties. When all the element
of proprietary estopple are satisfied then there will be equity. Equity will entitle claimants to
a remedy which the court will grant a remedy in order to satisfy the equity. In the case of
Crabb v Arun DC, the court must determine the most appropriate remedy in that
circumstances. This can also be seen in the case of Pascoe v Turner and Jennings v Rice.

Conclusion

This is certainly highly important in English law is the doctrine of proprietary estoppel. The
ease with which a individual can rely on proprietary estopples that undermine the need for
formalities which protect the landlord. This area of law was, however, relatively dynamic
and has evolved over the years. It can be seen today that this doctrine is moderately
flexible, proportional and in most cases equal with respect to the jurisdictions being
addressed. From an initial point of view, the doctrine has evolved into the creation of a
doctrine based on ambiguity and less rigorous criteria.

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Question 3

When the property was purchase in 2015, it was purchase by 5 cousins who is Andy(A),
Bella(B), Cath(C), Don(D) and Ethel(E) as a weekend cottage. Generally, when a property is
purchase by more than a person, all of them will become co-owners of the property.
Therefore, Andy, Bella, Cath, Don and Ethel are co-owners of the property. According to the
Trust of Land and Appointment of Trustee Act (TOLATA) 1996, co-ownership takes place
behind a trust. In this situation it needs to be consider how the legal and the beneficial
interest of the property is held. According to the S.1(6) and S.36 of the Law of Property Act
(LPA) 1925, the legal title under law will only be held as joint tenancy. Based on the fact the
property was held to A, B, C, D and E. All 5 of them holds the legal title and they will be
holding their legal title as a joint tenant.

Based on the fact, since there is an unequal contribution towards the purchase, there will be
a presumption of resulting trust and it will be presumption of tenancy in common. In the
case of Goodman v Gallant when the joint tenancy is served, they will be taking equal
portion of the interest as a tenant in common. Therefore, there is no room to argue in
beneficial as it satisfies under the S.53(1)(a). On the fact, it is clear that the property was
convey to all the parties (A, B, C, D, E) as a joint tenant. In the event, all 5 of them will be
entitle to 20% the beneficial interest if the property is sold or if there is effective severance
regardless of their initial contribution as in the case of Nielson Jones v Feddan.

Firstly, the mutual agreement method under the limb 1 of Williams v Hensman will be
considered. This is because, Andy posted a letter telling that he wants to sell he’s interest
because he got a job abroad. However, Andy decide ripped the letter before it was sent out
since his visa application has been refuse. Therefore, there was no sale take place in Andy’s
share.

In the next situation, in 2017 Cathy wants to sell her interest in order to raise fund for her
studies. Generally, this will come under the limb 1 of Williams v Hensman. This method
requires all joint tenant to agree to server. This is because it has the effect of destroying one
of the unities essential to the joint tenancy. This agreement on price indicates that there is a
mutual agreement between Cathy and the 4 others. However, after all 4 of them discuss
they inform Cathy that they could only afford to pay $ 50,000 but Cathy refuse telling that
she will sell it for $70,000. A course of dealing is established to show that the parties are
dealing with each other with the intention to sever as in the case of Hunter v Babbage.
However, before they could tell anything, Cathy died on accident and the will goes to Don.
Since Cathy is dead the will of the property will be passed to Don. Therefore, the beneficial
interest under Cathy 1/5 interest will be going to Don who is inherits the will. On the
question of fact, in the case of Slater v Slater a clear indication by each of the parties that
the severance is regarded by them as having occurred and whether the negotiation reach
finality or not. However, the mutual attitude of the parties on this aspect is unchanged.

Thus, Don’s interest in the property will still remain the same. For example, under the right
of survivorship in the case of Gould v Kemp It prevents the deceased co-owner from leaving
his interest on his own initiative, as the interests of the joint tenant are extinguished upon
death and therefore do not survive for the benefit of the estate. Therefore, Don now 2/5
interest in the property.

In the case for Bella, she brings her son Fred to move in with her at the Primdale Cottage on
2018 there is no severance in this situation.

Finally, in Ethel’s case, in 2019 she mortgages her interest in the Primdale and bought a
second house. She should not mortgage her property without anyone’s knowledge. This
makes Ethel operate on her own share causing severance under the limb 1 of William v
Hensman where the beneficial interest now is held as tenancy in common. This can be seen
in the case of First Nasional Security v Hegerty.

In addition, the mutual conduct under limb 3 of William v Hensman which is cause of
dealing will also be consider since Ethel does not tell anyone regarding the mortgage.
Besides, the severance may be affected by any course of dealing sufficient to intimate that
the interest of all were mutually treated as constituting tenancy in common. this can be
seen in the case of Harris v Babbage.

However, in January 2020 Ethel fell behind in her mortgages repayments after she lost her
job. For the Wye Bank, they can apply for an order for a sale under S.14 of Trust of Land and
Appointment of Trustee Act (TOLATA) 1996, where application can be made to the court in
the event there is dispute with regards to the sale. Therefore, the court will consider the
following factors. First, which is the purpose of the Primdale Cottage would acquire to
provide a home for them to live in as seen in the S.15(1)(b) of TOLATA 1996. In this case,
Andy, Bella, and Don still require a home especially for Bella and her son Fred relocating is
inconvenient due to Fred illness.

Secondly, the interest of a secure creditor under S.15(1)(d) TOLATA 1996. According to the
case of Mortgage Corp v Shaire, the difference between a trust of land now in place and the
old trust for sale is that the court is no longer bound to order sale. However, the court is
very likely to order a sale since Ethel is unable to repay her debts. This can be seen in the
case of Bank of Ireland v Bell. Besides, in a very rare circumstances the court can postpone
the sale. For example, in the case of Edward v Lloyds the court postpone the sale until the
youngest child turns 18.

This situation could change if Ethel is willing to repay the mortgage installment, sale is very
likely to be ordered. In addition, the proceeding of the sale will be divided according to
S.105 of LPA 1925. However, since there is no express decoration as to their intend
regarding the beneficial interest is that equity follows the law where they are all beneficial
joint tenant as in the case of Stack v Dowden. Besides, the presumption can be rebutted
according to Para 69. Since they all contributed unequally, this presumption is easy to rebut.
Therefore, they hold the beneficial interest as a tenancy in common.

In the case of Laskar v Laskar has held that Stack v Dowden does not apply where all the
parties primarily purchase the property as an investment, even where their relationship is
the familiar ones. However, in Marr v Collie it was held that the unambiguous mutual with
of the parties must be considered only if it is not their wish, to share the beneficial interest
jointly or if they had not form any intend as to the beneficial interest a resulting trust
solution may provide the answer.

The significant of Marr decision is that the intend of Andy, Betty, Don, Ethel must be given
effect to. If they had no intend to share jointly, or they had never given the matter any
thought, Laskar will apply so that they hold the beneficial interest as a tenancy in common.

In conclusion, when the property is sold as for Belle’s situation the court should consider
and post-pone the sale until Belle can find a place to relocate nearby the dialysis center as
her son Fred is still going through treatment. As for Andy, he should get his equal share
which is 1/5 of the interest from the property. Next as for Don, he will get 2/5 from the
interest of the property which is 1/5 is from the will he inherits from Cathy. Finally, as for
Ethel she will not get any because of the repayment of the mortgage from the bank.

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Question 4

The main objective of the Land Registration Act (LRA) 2002 is to ensure that land ownership
is titled by registration. This marks a significant departure from the centuries of land law
which established possession as the basis for title. By focusing another-side and mercilessly
on registration as a way forward and evidence of title, the 2002 Act seeks both to impose an
order on property rights and to protect it more extensively.

Moreover, the main objective for the act is where firstly, to ensure that as many estates in
land as possible becomes registered. Secondly, it seeks to ensure that as many third-party
rights as possible are registered in the title register of the estate affected by the right. As a
reminder, if the rights are not protected by registration, the interest may cease to affect the
property when it is sold. Thirdly, it aims to minimize the number and effect of those third
party proprietary rights which could be effective against the new owner of the land even
without being registered and lastly, to make preparations which could allow disposition of
registered land to be handle electronically which technically have been postponed for the
time being.

The LRA was enacted in relation to Commission Law Report No. 271. The primary focus of
the Act was the introduction of a new land registry designed to revolutionize property
rights. Land has evolved into a key economic asset in the 21st century, and therefore it has
become increasingly imperative that possession can be precisely and easily determined.
Landowners need to know both the precise extent of their geographical land and the extent
of their legal position, including restrictions, so that they can use, enjoy and protect their
assets and transfer them easily and safely. The creation of a national land registry by the
LRA 2002 was therefore not simply an intellectual pursuit to document, modernize and
simplify all existing rights over national land patches. The primary objective was to enhance
substantial e-conveyance. E-conveyancing excludes the registration gap which, under the
paper system, can create major issues for investors: until the registration of land investors
only has a fair interest despite having concluded a contract with the seller, they can thus
find their property affected by the actions taken and the gap.
There are three fundamental principle under the registered land which are first, the mirror
principle. This is where in the registration the title should be mirror or reflect the rights and
the interest in relation to the title of registered land. However, unregistered interest which
override the bind and transferee of it including the purchaser without these being ever
entered on any register. This can be seen in the Schedule 1 and Schedule 3. Therefore,
under the LRA 2002 the registration of the title was to produce a flawless mirror however it
did not change the need of the purchaser.

Second principle is curtain principle, where these is dealt with equitable interest behind a
trust. When a purchaser buys a land that is subjected to a trust of land the purchaser will
only need to be concern regarding the legal title to the land. This equitable interest can be
seen in S.27 of LPA 1925. However, this principle does not apply if the two legal owner
attempts to commit fraud by employing the overreaching machinery. As this can be seen in
the case of HSBC v Dyche. There might be some difficulties when there is only one trustee
and the equitable owner has a right of occupation which would then be converted into an
overriding interest under Schedule 3 para 2 LRA 2002. In the case of William and Glyn’s
Bank v Boland where the bank failure looks behind the curtain in respect of the interest of a
wife in actual occupation meant that the bank lost priority to her overriding interest.

The third principle is insurance principle. The state guarantees registered title, and will
compensate landowners when losses occur from register errors. The alternative power is
most often exercised to indemnify the injured party. Errors can be rectified, but it is
reluctant to accept excessive failure in the Land Registry, and there are strict rules governing
this power. For example, a strip of land was wrongly moved twice in Kingston v. Thames
Water Development Reform was not required, despite the expected owner losing his title
directly due to registration process errors. It was further held that refusal of rectification did
not infringe the ECHR 's Article 1 First Protocol as there was a legitimate public interest
objective of ensuring the efficiency of the registration system, and compensation would
adequately compensate for his loss.

Registrable disposition means a provision that is required by registration pursuant to

S.27LRA 2002. Only in the case of provisions, an interest is not protected if, on reasonably
careful inspection of the land, it is not obvious that the person claiming it is occupying the
land. That rule does not extend to first registration, and it does not extend if the person
making the rule is in fact aware of the interest of the applicant. Interest belonging to
individuals who earn rents and income but do not actually occupy the land is no longer
covered. There is a transition period requirement that gives limited protection to any such
interests that exist after LRA 2002 against provisions but not against first registration. The
Registration requirements are laid down in Schedule 2 of the Act. For example, in relation to
the grant of a lease, paragraph 3 specifies that: (a) the grantee or his successor in title must
be entered as the owner of the lease in the register, and (b) a notice must be registered in a
register with regard to the lease. S.38 requires that, when a registrar enters a individual as
the owner of an interest falling within S.27(2)(b) to (e), a corresponding entry must also be
made by way of a notice in the charges register of the land from which it was formed. A
limitation on the proprietorship registry shall prohibit a condition from being registered
until it has been complied with.

They may however also enter a restraint to prevent or alert any attempt to transfer the land
in violation of the option. 'S.29 of the LRA 2002 states that the purchaser of a freehold
estate shall be entitled to purchase the land free of all burdens except for registered
charges, interests protected by documents on the register of the property and interests
provided for in Schedule 3 of the Act overriding the disposition but not being registered. The
use of protections and notices goes very far in ensuring that interests are safeguarded and
well noted.

All registered provisions of a registered estate shall take effect subject to those unregistered
interests which the Land Registration Act (LRA) 2002 states to "override" these provisions
(LRA 2002, paragraphs 29(1) and (2)(a)(ii)). Since, they don't really feature on any title
register (LRA 2002, ss.29(3) and 30(3)), the dispose of the registered title is subjected to
those rights. LRA 2002 Annex 3 sets out the list of certain interest groups that count as
overriding interests. Overriding interests would not require registration to become
apparent, as they should be obvious to any taking of the registered title of land on a proper
examination of the land or other evidence-based aid, such as registers of local land charges
maintained by local authorities. Typically, those interests which qualify as overriding are
those which do not have any other means of protection within the land registration system.
They bind the whole world in their unregistered status, and the registered land scheme is
designed simply to replicate that principle of binding the entire world.
According to lord Wilberforce in the case of Williams and Glyn Bank Ltd v Boland actual
annexation is aimed to be interpreted as written, as long as they are taken as plain English
words. Besides, the actual meaning is 'apparent' or 'patent,' so that the fact of occupation
would 'place a person inspecting the land on notice that there was a person in the
occupation. The annexation must be maintained both before and on the date of registration
LRA 2002, s.29(1)-(2) and Schedule 3, paragraph 2. This view in the LRA 2002 reflects the
previous precedent set in the case law Abbey National Building Society v Cann. This
imposition of the required duration is intended to make it easier for a meaningful
investigation to take place in advance of the disposition. In Chhokar v Chhokar, the previous
occupation and the intention to return to the property, with actual evidence such as
furniture, indicated that perhaps the occupation was adequate.

in conclusion, the 2002 LRA is based on a single-minded vision: to prepare for e-conveyance.
The subsequent land register is the outcome of enormous proportions, that almost
generates ideal basic principle. However, the retention of overriding interests reinforces the
greatness that the registry can achieve and the continued operation of adverse possessions
disrupts its equitable procedure. Whilst attempting to make registration the sole guarantee
of title, property ownership becomes more heavily protected, but by restructuring
unfavorable possessions to fit into the realm of registration, there will always be space for a
constant owner to break through that protection.

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Question 7

This question requires candidate to advice Sonia as she in dire of enforcing covenants
against Carolyn, Fawn and Erica. In order for Sonia to be able to compile them with all 3
covenants, she must have derived it from Anthony. These covenants were not made by
Sonia. They were made by Anthony even before he sells it to her. It is also clear that all the
covenants are relating to all the 3 barn which is pink barn, blue barn and white barn.
Therefore, the issue here that need to be discussed is that the enforceability of the freehold
covenants between 3 parties which is Carolyn, Fawn and Erica.

Covenants refers to where a promise made in a deed and is enforceable between the
covenantor who is the promisor and the covenantee who is the promise irrespective of
whether contractual consideration is given. The purchaser of the burden land need not
always be the covenantor. Besides, one need not equate purchaser with covenantor and
vendor with covenantee. Covenants also can be involved without sale.

The 3 covenants in this question is where each barn has 3 terms requiring to purchase. First,
they have to use the land as a private dwelling. Second, they have to maintain section of the
hedge separating each barn from the farm house, and the third is pay a proportion of the
annual cost of running the swimming pool.

According to general rule, only parties to an agreement can enforces a covenant, in this case
its Anthony and Sonia. In the case of Austerberry v Oldham Corporation, the rule has been
criticized as it allows the original covenanter to be able to purchase land of a discount in
consideration of being burden by covenant, but is able to sell it at a greater price in
consideration of the assignee being not bound by the covenant. In order for the party who
wants to enforce the covenants they must be the running benefit and burdens. On the fact,
Sonia has to prove the running benefit and burden.

In addition, benefits can run under common law and equity. As far as covenant the covenant
touch and concern the land. In the case of Swift Investment v Combined English Store the
covenant must affect the nature, the quality, mode of user of the land. As far as common
law concern, covenants applies to both positive and negative covenants. Positive covenants
require someone to do something and it requires spending of money, whereby negative
covenants are to restrain someone from doing something in his land. This can be seen in the
case of Haywood v Branswick.

On the fact, the first covenant which use the land as private dwelling is positive as they have
to keep maintaining their surrounding and it will cause spending of money. Second covenant
is also positive since maintaining the hedge will also cost money. Whereby for the third
covenant it could be positive or negative. This is because not everyone in the barn is using
the pool and it will be unfair for the person who is not using the pool to pay the annual cost.

Under the equity it allows the passing of benefits. It also requires the touch and concern of
the land. Equity is also concerned with the positive and negative covenants. However,
equity have certain methods in running benefit which is assignment and annexation.
Assignment means the previous owner who is Anthony has certain rights expressly assess
the benefit to the new owner who is now Sonia when he sells the property. On the fact, this
does not apply to this case.

However, in annexation the benefit Is attach to the land, this means when Anthony sells his
land to Sonia the benefits automatically go together with the land. Annexation can be done
expressly which is through deed or it also can be done by statutory annexation. This
generally comes under Federate Homes v Mill Lodge Properties using S.78 of LPA 1925
benefit of the covenants which touch and concerns the land will automatically be annexed
to the land.

Based on the fact, the first covenant is a positive covenant. According to the common law
the burden will not run under Carolyn. However, there are certain exception by where it can
be enforced. In this case, it is clearly stated that the barn or the property must be use as at
private dwelling. Based on the fact, Carolyn use it to run her business. This can be seen in
the case of Halsall v Brizall where if the person enjoys a benefit on the other persons land
and that benefit comes with a burden. Therefore, Sonia can sue Carolyn for damages.

Next, second covenant is also positive and it is against Fawn. Under the common law, in the
case of Thamesmead Town v Allotey the covenants here to maintain hedge of plant which
is same as the case fact Fawn. In this case, it clearly stated that he doesn’t plant at boundary
and that he wants to put wooden stack. This actually rejects the mutual benefit and
therefore cannot ask him to pay for the maintenance. However, in this case the hedge is
lying between the farm and it burdens Sonia’s benefit. Therefore, Sonia can enforce the
covenant since it burdens her benefit. Thus, in this situation Fawn can be sued for damages.

The third covenant is negative which this could only be applied under the law of equity.
Under the rule of Tulk v Moxhay, certain condition needs to be satisfied in order for the
rules to be enforced. First, the covenant must be negative. Based on the fact, the third
covenant is negative because it is unfair for the person who is not using the swimming pool
to pay the annual fee. However, in this case Erica has been using the pool and refuse to pay
the annual fee. Second condition, the covenant, must touch and concern the land. Based
one fact, here it affects the quality and the, mode of the user where Erica refuse to pay
could affects the owner in paying the fee. And the quality is lack of maintenance. Third
condition is where the land must be close to each other as in the case of London CC v Allen.
The final condition is intention for the burden to run under the S.79 LPA 1925. Therefore,
Sonia could enforce the covenant and Erica can be sued under negative covenants for
injunction.

In conclusion, Sonia is liable for remedies from all of them since the breach the term which
set by Anthony.

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