Paul Patton’s purchase of Belvon Estate has led to quite the adversesituation, with multiple persons filing multiple claims against him. Firstly,we shall examine TT’s claim, regarding the eligibility of her lease. The seminal case regarding this is Streetv Mountford, where Lord Templeman stated that a lease could be defined as a”grant of exclusive possession for a term at rent.
” 1 Thestatutory definition for lease can be found in the Law of Property Act.2 Ifthese conditions are deemed to be satisfied, TT’s lease would be protected. Exclusive possession, the right to exclude allothers from the property, even the landlord,3 couldseem to apply to the situation. TT has been living in the cottage for around 5years, with control over the property, as can be seen by her personalbelongings and such. It seems likely that she had the right to exclude BB aswell, hence, the courts would probably stipulate that TT was in exclusivepossession of the Cottage.
Secondly, the determinate term of the lease. We knowthat a 10-year lease was granted in 2012, starting (seemingly) immediately, andhence, this condition is satisfied too. One potential claim PP could makeagainst TT is the lack of rent stipulated in her lease, thus not satisfying thethird condition. This would fail in court however, as the statute definitionfor terms of years absolute states ‘whether or not at rent,’4showing us that rent is not pivotal. This is supported in case law, through Ashburn v Arnold, where it wasunambiguously confirmed that a lease can exist without rent.5Therefore, PP would almost certainly fail in proving that TT’s lease is notlegally binding.
Even though TT’s lease may be legal, PP may still rely on the categoriesset out in Facchini v Bryson, whichwould overturn the validity of a lease.6 Ifthere was ‘no intention to create legal relations,’ or if the tenant is ‘aservice occupant’ or a ‘lodger,’ this would lead to the lease being invalid.Unfortunately for PP, there seems to be no evidence to prove that BB and TT didnot intend for legal relations, and we can see that TT was neither a serviceoccupant nor a lodger, and hence, even this potential shield for PP would failin court. While it seems likely that the lease shall be considered effective bythe courts, its operation as a legal lease or an equitable lease would be ofimmense importance to PP. At this point, many possible scenarios start toarise.The general legal principle is that legal leases must be created bydeed, as supported by the LPA in stating “All conveyances of land or of anyinterest therein are void… unless made by deed.”7Even if the lease was created by deed, for it to be protected, it must beregistered, as it is a registrable disposition.8Therefore, only if TT had her lease created by a deed, and registered it assuch, would she be able to rely on her lease as a legal lease.
However, withthe information we have available it seems unlikely that TT had the (possible)deed registered, as it should have shown up on the Register, during PP’sinvestigation. Hence, I believe it is unlikely that TT could rely on the leaseas a legal lease.However, TT could still rely on an equitable lease. Yet, for TT to relyon this, she still needs to satisfy many conditions.
Firstly, even for anequitable lease, it must comply with certain formalities set out in the Law ofProperty (Miscellaneous Provisions) Act 1989.9The lease must be in writing, contain all terms agreed, and signed by bothparties. Furthermore, equitable leases should be protected as a minor interestby the entry of notice in the Charges Register.10 Sincewe have no information regarding the contract behind TT’s lease, our scenarios continueto ‘fork’ from here. If the lease was in writing, and TT managed to protect itby the entry of notice, then her claim shall have volition due to it being anequitable lease. Unfortunately for PP, even if TT failed to do the above, shestill has another option to protect her interest. An exception to the entry ofnotice in the Charges Register is if the tenant was in occupation of theproperty and has an interest in actual occupation, under the LRA.
11This actual occupation shall allow TT to protect her interest as an overriding interest,thus enforcing the lease. While an examination of what would amount to obviousness was notexplicitly discussed in various seminal cases, “the scope ofwhether occupation was obvious provides guidance in relation to whatshould be apparent to the intending disponee during the inspection.”12To prove actual occupation, it seems important to prove obvious occupation. Inthe case of Thomas v Foy, Ramsey J. states “what must beobvious is the relevant visible signs of occupation.”13When applied to the case, it seems clear that there were visible signs ofoccupation in the Cottage, upon inspection. While the identity and situationbehind the occupation may have been fabricated by SS, for PP to claim that hehad no idea of any occupier would not be a strong claim in court, as it isobvious with all the personal belongings in the Cottage, that there was anoccupier.
PP could attempt to fight this on many grounds. Firstly, he could statethat since TT was absent during the inspection, she wasn’t in occupation.Unfortunately, this is very likely to fail as courts have previously deemedthat a temporary absence from a property does not stop actual occupation.14For PP to prove a break in the chain of actual occupation, he must prove thatTT’s absence was so “prolonged that the notion of her continuing to be inactual occupation becomes insupportable.”15 Courtshave ruled that an ‘intention to occupy’ would go hand-in-hand with amanifestation of occupation.16We can see that TT clearly has an intention, and thus, it seems extremelyunlikely that this argument would be won in PP’s favour. Through my findings, though TT’s claim may have many roadblocks, itseems that it is almost certain that her lease would be protected, mostprobably as an equitable lease.
We know that an equitable lease has significantimportance in law, especially as it was enhanced by the Judicature Acts 1973and 1875, where the High Court would rule is favour of equity, in any event ofa conflict between equity and law.17Supported in Walsh v Lonsdale, perGeorge Jessel MR, “There is only one court, and equity prevails in it.”18It is important to note that in the aforementioned case, for the principle toapply, specific performance of the agreement must be available.19Hence, if the lease is equitable, it seems that TT’s option to purchase wouldbe equitable as well.Secondly, EE’s claim of easement over Belvon Estate must be analysed aswell. For an easement to be valid, it must not amount to exclusive possessionof the burdened property.20This clearly applies to EE’s claim, as he is not in exclusive possession of theland. Further conditions to be met are seen in Re Ellenborough Park (henceforth REP); There must be a dominant and servient tenement, in separateownership/occupation, right must accommodate the dominant tenement, and theright must can form a grant.
21While the first two conditions are straightforward, the right to accommodatethe dominant tenement is a right for genuine use of the land itself. The rightof easement must benefit the land, and not just the owner.22 (i.e.it must not benefit the owner if he leaves the land, which is not the casehere)There is still another condition PP could rely on to quash EE’s claim.An easement must be capable of being the subject matter for a grant. One of the main requirements for an effectivegrant is certainty of the scope.
This is a point of contention for PP. BelvonEstate can be assumed to be a large area, and hence, a simple easement allowingEE to drive over the ground may be seen as too vague. A righ to wander/utiliseill-defined land may not be sufficient for a grant, and hence, insufficient foran easement. In addition, the Counsel in REP argues that a right to wander overanother’s land was not a proprietary interest. Nevertheless, this ultimatelycomes down to the discretion of the courts, as the right must be one of capableof clear definition. If the courts find that that is the case, then EE wouldhave a valid easement.If the easement is held, we must see if it is protected.
We know theeasement was created by deed, but are not told whether or not for a specificterm. If the deed was for a set term, EE would have been required to registerit, to be protected, in accordance with statute.23We can assume that the deed is for an unspecified term, and hence, does notcomply with the statute24,and must exist as an equitable easement.As with a lease, even an equitable easement must be protected by notice.25Even if EE fails to do so, his claim may still have validity as an overridinginterest. In order to best achieve this, EE would need to prove that it was animplied easement, as an implied easement takes the same effect as a legaleasement, but not subject to the registration requirements.26EE could claim for an implied reservation, which is recognised when there isnecessity. To prove this, EE would need to show that is was necessary for himto use BE to get his tractors to the other side.
However, PP stands a goodchance to oppose this claim, as the existence of another form of access is fatalto the implication of necessity. Since we only know that it is difficult for EEto use his own farm, but not impossible, it seems that PP could claim that analternate route exists. Even if this route is inconvenient,27the courts will rule against necessity. While PP should note that there areinstances of a more generous approach28,it is still extremely likely that EE’s claim for necessity will fail.EE still has many grounds on which he could claim for an easement. Hecould claim for an implied grant under Wheeldonv Burrows, for a continuous and apparent easement, but this would fail, asEE is not under a quasi-easement.29 EEcould claim for one implied by common intention, but it would most likely failas well, as PP seems to have no intention to grant the easement at the time ofthe sale.
A potential claim under s.62 Law of Property Act 1925 would fail aswell, as this section only applies to upgrading licenses to easement30,as is not the case here. This leaves EE with a final claim under prescription.31A prescription is estbalished by a continuous use over an extendedperiod of time, with the basic requirements being; the easement must be overfreehold land, at least 20 years of uninterrupted use and the use claimed mustbe ‘as of right’ (the user acquires the easement without secrecy,32without permission33and without force34)All these are satisfied. The easement was over freehold land, as BB was theowner and had the right over the freehold. However, the point where PP couldcontest is the ’20 years of uninterrupted use.’35The continued and regular use of the land36may be under scrutiny, as EE has not used the land since 2015, and only usesthe part sparingly. Since EE has notused the land in the last year, his overriding interest cannot be exercised.
37As a result, it seems highly likely that EE’s claim as an overriding interestwill fail. All-in-all, there is still a lot of information that would berequired to make a solid evaluation, but based on my findings, it seemsunlikely that EE’s claim for a right of way would be held against PP. Finally, we must deal with BB’s claim over the estate.
PP will be ableto argue that the register should not be rectified, and can support his claimwith case and statute law. Firstly, s.29(1) of the LRA states that anyunprotected/unregistered interest is quashed by a registered disposition.38 As is our case, PP’s transfer, albeit forged,would overrule BB’s claim. Furthermore, “If, on the entry of a person in theregister as the proprietor of a legal estate, the legal estate would nototherwise be vested in him, it shall…be vested in him as a result of theregistration”39allows PP to claim that he is the registered owner. Supporting his claim with Swift 1st Ltd v Chief LandRegistrar, which rules that the registration of a forged transfer confersgood title on the transferee, places PP in a good position to keep his interestin BE.Even if PP proves his title, the register can still be rectified.Schedule 4 of the LRA allows for the rectification if the mistake was made andit could prejudicially affect the title of the proprietor.
40While there is no need to actually prove a fault41,it is vital to show a prejudicial effect. In addition, a rectification issubject to further conditions (unless the proprietor consents to therectification42,which doesn’t seem to be the case with PP); if the proprietor has acquired thetitle by fraud or negligence43,or it would be unjust to rectify the register.44While we know that PP did not contribute to the mistake by virtue of fraud, thesecond condition might be tricky for PP to argue against. It comes down to thecourts judgement, on whether these circumstances would be unjust not tocorrect.
While the Law Commission denies rectification on grounds such asmisrepresentation45, the judgment in Baxter v Mannion, per Henderson J, states that “in allcircumstances, it would be unjust for the register not to be rectified”46which shows a more considerable approach. Ultimately, since it is a familyestate, the courts might look more favourable upon BB, as a greatly personalconnection to the land might give the Court grounds to rectify the register.If this does happen, PP will be able to file for an indemnity, under theSchedule 8 of the LRA. 47Thiswould allow for PP to receive compensation according to the value of the landimmediately before rectification48,which would be £900,000. Therefore, if BB is not able to rectify the register,PP may still be able to come out of this scenario without a heavy loss.
Overall, while the enforcement of TT’s claimwill most likely be successful, EE’s claim is likely to fail, and BB’s claim isdependant on the courts, but does stand a decent chance of success in beingenforced.1Street v Mountford 1985UKHL 4, 1985 AC 809 2Law of Property Act 1925 (hereafter LPA) s.205(1)(xxvii)3 Appah v Parncliffe Investments Ltd 1964 1WLR 1064,4 LPAs.205(1)(xxvii)51989 Ch.161952 1 TLR 13867LPA 1925 s.52(1)8Land Registration Act (henceforth LRA) 2002 s279Law of Property (Miscellaneous Provisions) Act 1989 s210LRA 2002 s.3211LRA 2002 Schedule 3, Para 212Conveyancer & Property Lawyer 13 Thomas vClydesdale Bank Plc 2010 EWHC 2755 (QB); 2010 N.
P.C. 107 at38 per Ramsey J.14Link Lending v Bustard15Stockholm Finance 1995 N.P.
C. 162 Ch D at 18.16 Thompson2009 EWHC 1076 (Ch); 2010 1 P. & C.R.
16 at 127(v)17Judicature Act 1876 Section 25(11)181882 21 Ch D 9 at pp 14-1519Gardner (1987) 7 OxJLS 6020Copeland v Greenhalf 1952 Ch 48821 1955 EWCA Civ 4, 1956 Ch 13122Hill v Tupper 186323 Land Registration Act 2002, ss 27and 38. 24 Law of Property Act 1925, s1(2)(a).25 Land Registration Act, s 32.26LRA 2002 ss 32 and 3427Tichmarsh v Royston Water Co Ltd (1899) 81 LT 67328Sweet v Sommer 2004 EWHC 1504, 2005 EWCA Civ 227)291879 12 Ch D 31 at p4930Wright v Macadam (1949) 2 KB 74431Prescription Act 183232Barney v BP Truckstops Ltd 1995 CLY 185433Green v Ashco Horticultural Ltd 1966 1 WLR 89934 SDalton v Angus & Co. 1881-1885 All ER Rep 135Prescription Act 1832 s.236Hollins v Verney 1884 13 QBD 30437 LRA 2002, Schedule 3 Para 3(2).38 Land Registration Act 2002, s29(1).
39LRA 2002 s.5840LRA 2002, Schedule 4 Para 141Baxter v Mannion 2010 1 WLR 159442LRA 2002, Schedule 4 Para 3(2)43Ibid Para 3(2)(a)44Ibid para 3(2)(b)45Law Com No. 271, para 10.7, n 2346 2010 EWHC 573 (Ch) at p6347LRA 2002, Schedule 848Pinto v Limm