1 ] Ned’s Case
In 2005 Birmingham City Council ( “ the Council ” ) granted the Northside Housing Trust ( “ Northside ” ) a license to utilize Peabody Terrace, a semi-derelict block of flats in Nechells, in order to redevelop the flats as impermanent adjustment for stateless people. The freehold of the block of flats is vested in the Council. Northside gave the Council an project to guarantee that no resident was given security of term of office.
Three hebdomads ago Ned signed an understanding with Northside for the business of a self-contained flat at 12c Peabody Terrace on a impermanent footing on a hebdomadal license. The understanding recited that Northside held the belongings on license from the Council pending development, required Ned to resign the premises upon having sensible notice from Northside, and provided that Northside retained the right to re-enter the premises to inspect and to consequence fixs.
Last hebdomad Ned noticed that his kitchen window frame had rotted and was allowing in both air current and rain. He besides found extended fungous growing and moistness in his sleeping room, which he believes will worsen his asthma.
Ned wants to cognize if he can oblige Northside to mend the window frame and render the level tantrum for human habitation.
The cardinal inquiry for finding is whether the responsibility to mend the window frame falls on ‘Northside’ the ‘licensor’ , or on Ned the ‘Licensee’ . In order to reply this inquiry we must foremost analyze whether or non Ned can be classed as a leaseholder instead than a mere licensee, for if so, so he may name on the protection of the Landlord and Tenant Act 1985, and will be far more likely to mount a successful claim against Northside.
The first point to do is that Ned is non precluded from reasoning that he is a leaseholder merely because the contractual papers signed between Ned and Northside describes the agreement as a licence. Lord Templeman in the instance of Street v Mountford [ 1985 ] AC 809 asserted this really point by saying that it is the facts of the instance which affair, instead than the purposes of the parties. One must therefore expression at the substantial nature of the agreement in inquiry in finding it should be considered a rental or a licence.
The definition of a rental was set out in the instance of Street 5 Mountford. The facts of the instance or the logical thinking behind it are non of import to us here, and as such, treatment of this instance shall be limited to the lease-criteria set out within. The first demand for the agreement to be considered a rental is known as sole ownership. This means that Ned must be able to deny 3rd parties entree to the premises in inquiry, except for the landlord, who shall be allowed to entree the premises for review and fix. There is no indicant from the facts provided that Ned does non bask such sole ownership and as such, we can be assured that the first standard for the designation of a rental has been satisfied.
The 2nd standard which must be met if we are to successfully reason that Ned is a leaseholder of the belongings in inquiry is that the agreement must be for a fixed and certain period of clip. Again, there is no job here for Ned ; his understanding stipulates a fixed period of one hebdomad.
The 3rd demand is one of rent, and whilst the jurisprudence on this standard has changed well since the yearss of Street v Mountford, the fact that we are told that Ned does pay lease makes this standard non-contentious.
At this point in our analysis we can therefore conclude that Prima facie, despite the diction of the understanding as a ‘licence, ’ Ned would be able to build a successful statement to asseverate that he is in fact a leaseholder instead than a mere licensee. However, the fact is that Northside themselves do non keep a rental of the belongings, but instead a license signifier the Council freeholders, and nemo digital audiotape quod non habet ; one can non give what one does non hold! On this issue we must turn our attending to the instance of Bruton v London and Quadrant Housing Trust [ 1999 ] 3 All ER 481.
The facts of this instance were really similar to our current job scenario ; The London and Quadrant Housing Trust held some premises on license from Lambeth Borough Council. Bruton later leased some of that land from the Trust. When issues of fix arose, the Trust tried to avoid their responsibility to mend the belongings by reasoning that as they themselves were non leaseholders of the land, the agreement between them and Bruton could be considered no more than a licence.
Whilst the Court of Appeal held for the Trust, the House of Lords allowed Bruton’s entreaty, and effected what has become known as a ‘tenancy by estoppel.’ The logical thinking behind this determination was a follows ; as all the basic demands for a rental had been satisfied, Bruton should be allowed to implement all the rights which would usually be allowed to flux from such an agreement. The one exclusion to these ‘normal’ rights of a leaseholder is the land involvement which is usually created by a rental. In instances where a occupancy exists by estoppel, no such land involvement is granted to the leaseholder:
“the term rental or occupancy describes a relationship between two parties who are designated landlord and renter… A rental may and normally does make a proprietary involvement called a leasehold estate or, technically, a term of old ages absolute, but this will depend on whether the landlord had an involvement out of which he could allow it. ( Lord Hoffmann in Bruton ) .”
In our instance hence Ned will be able to reason that he is a renter by estoppel, which means that he will be able to bask all the rights and protection afforded under the Landlord and Tenant Act 1985, but will non be deemed to keep an existent involvement in the land. This is of import as if Ned was to hold a land involvement in the belongings so the license between the Council and Northside could be revoked for breach of its proviso which stipulates that no resident is to be given security of term of office. If this license was revoked so Ned’s rental would automatically discontinue to be, and he would be unable to even go on to populate in the premises, allow entirely coerce Northside to set about the necessary fixs.
As a renter by estoppel, Ned can coerce Northside to mend his belongings back to a province where it is fit for human habitation by asseverating his rights under s11 of the Landlord and Tenant Act 1985 which states that in relation to rentals of brooding houses for footings less than seven old ages, the landlord is under a responsibility to maintain in fix the construction and outside of the dwelling-house. This would surely cover the harm to the window, as this is an external characteristic of the premises, although in order to oblige Northside to handle the bing moistness job, Ned may necessitate to trust on s.8 ( 1 ) and 10 Landlord and Tenant Act 1985 which states that belongingss which are rented at really low rents must be rented and maintained tantrum for human habitation. Whilst we are non state how much rent Ned pays, we can presume it is really low as Ned was antecedently stateless and the type of lodging provided by Northside is intended to be really low-cost. Section 604 of the Housing Act 1985 as amended by Schedule 9 of the Local Government and Housing Act 1989 defines the legal criterion of ‘fitness for human habitation.’ It states, amongst other things, that a belongings is unfit for human habitation if it is non free from moistness which is damaging to the wellness of the residents. On the facts of it there is no uncertainty that the moistness in inquiry is damaging to Ned’s wellness, and as such, Northside would be under a responsibility to repair the moistness job in the belongings.
The concluding point to observe is that Northside could merely give Ned notice and evict him organize the belongings, ending his rental, instead than set about the fixs, although I think Ned would be within his rights to keep back his rent for this period of notice.
2 ] Hilltop House
The undermentioned events happened in the undermentioned order.
( 1 ) Alex and Beattie bought Hilltop House together as good articulation renters.
( 2 ) Beattie died, by her will go forthing all her belongings to Carole.
( 3 ) Alex married Denise.
( 4 ) Alex executed a declaration of trust saying that henceforth he would stand possessed of his full estate and involvement in Hilltop House on behalf of himself and Denise as good renters in common in equal portions.
( 5 ) Alex and Denise separated, Denise traveling to populate elsewhere.
( 6 ) Alex, without confer withing Denise, executed a farther title revoking the earlier declaration of trust.
( 7 ) Denise died, by her will go forthing all her belongings to her sister Enid.
( 8 ) Alex died, by his will naming Fergie and Graham as his executors and legal guardians and teaching them to sell Hilltop House and administer the returns of sale every bit between his two nephews, Horace and Ian.
( 9 ) Fergie and Graham ( as legal guardians ) sold Hilltop House for ?200,000, and they hold the returns of sale in a bank history.
How should Fergie and Graham administer this money?
In respects to the first event above ; Alex and Beattie were joint renters of Hilltop House. One of the features of joint occupancy is the being of what have become known as the four integrities. I shall discourse these below and use them to the facts of our job inquiry scenario:
Integrity of ownership requires that both [ or more ] articulation renters each have the same rights to possess the belongings, and for one co-owner to seek to except the other may be seen as an act of rupture. Integrity of involvement requires both parties to have the same sort of involvement in the land. The 3rd integrity, integrity of rubric, requires that the involvements owned by each party are vested in them by the same rubric title, and the forth integrity is that of clip, and requires that each parties involvements were created at the same clip. Another feature of joint occupancies is the right to survivorship which means that upon the decease of one of the joint renters, the full involvement in the belongings waistcoats with the other lasting joint renter. This means that upon event figure 2, the decease of Beattie, the whole involvement in the house becomes vested in Alex. The right to survivorship operates irrespective of any contrary proviso contained in Beattie’s will. Carole hence obtains no involvement in Hilltop House upon Beattie’s decease.
In respects to event figure 3 ; merely because Alex marries Denise does non intend that Denise acquires any involvement in Hilltop House. In fact at this phase we are non even told that she has moved in with Alex, and so the above point is even more obvious.
Alex so decides to do himself and Denise renters in common of Hilltop House by put to deathing a declaration of trust saying that ‘henceforth he would stand possessed of his full estate and involvement in Hilltop House on behalf of himself and Denise as good renters in common in equal shares.’ For occupancy in common, merely integrity of ownership is required, and this means that in visible radiation of the fact that both Alex and Denise own one identifiable but as yet undivided half of Hilltop House, Alex is unable to except Denise from the house by trying to revoke his earlier title. The legal authorization for this averment can be derived from the instance of Bull v Bull [ 1955 ] 1 QB 234 ; in this instance a female parent and her boy had purchased a belongings, but the rubric of the belongings had been conveyed into the son’s name entirely. Lord Denning dismissed the son’s claim for sole ownership, reasoning that “when there are two just renters in common, so, until the topographic point is sold, each of them is entitled at the same time with the other to the ownership of the land and to the usage and enjoyment of it in a proper mode ; and that neither of them is entitled to turn out the other. ”
This logical thinking can be understood and to the full justified through analysis and scrutiny of the cardinal trust jurisprudence rules which are runing in this instance. Upon declaring himself au naturel legal guardian of Hilltop House for himself and Denise he retained his legal ownership as legal guardian, but vested half of the just involvement in Denise. This therefore means that he is unable to end the trust as to make so would necessitate all of the good involvement to return to the legal involvement, and this would be impossible without Denise’s consent to end the trust.
With this in head, it becomes clear that on Denise’s decease, her half involvement in Hilltop House passes to her sister via her will. This is possible as there are no rights of survivorship in occupancies in common ; if a renter in common owns an identifiable portion of a belongings it makes sense that this portion of the belongings can be transferred to person else by manner of testamentary temperament.
Upon Alex’s decease hence half of the returns of sale should be given to Enid, Denise’s sister, and the other half should be split between Horace and Ian, as per Alex’s will. In consequence therefore, Fergie and Graham should give one hundred thousand lbs to Enid, 50 thousand lbs to Horace and 50 thousand lbs to Ian.
This is the lone right manner to do the distribution in this instance, and the legal statements above could be called upon by Enid should Fergie and Graham fail to give her the 1 hundred thousand lbs which is lawfully due ; the tribunals would so do an order for Fergie and Graham to pay Enid one hundred thousand lbs.
3. Mr and Mrs Bolton ‘s Case
Mr Elmore bought 28 Weavers ‘ Way ( “ no. 28 ” ) in 1998 with the aid of a mortgage from Mercia Building Society ( “ the Building Society ” ) . The purchase and the mortgage were punctually registered at HM Land Registry.
In 2001 Mr Elmore agreed with his following door neighbor at no. 26, Mr Jennings, that Mr Jennings could traverse no. 28 ‘s back garden to make his ain back garden.
The understanding was implemented by the executing of a formal title of grant whereby Mr Elmore granted to Mr Jennings his inheritor and assigns the right at all times and for all intents to traverse no. 28 ‘s back garden. However, the title of grant was ne’er shown either to the Land Registry or to the Building Society.
Mr Jennings, with Mr Elmore ‘s consent, laid down paving slabs across no. 28 ‘s back garden and set a gate in the shared fencing.
Mr Elmore later fell into arrears with his mortgage and the Building Society has now taken ownership of no. 28.
Your clients Mr and Mrs Bolton would wish to purchase no. 28 but merely if they can be assured of privateness in the back garden.
If Mr and Mrs Bolton purchase no. 28, will Mr Jennings still have the right to utilize the way he has laid across no. 28 ‘s back garden?
Mr Elmore and Mr Jenkins have in consequence set up an easement. It was an easement by express grant, and met all the formality demands of s52 ( 1 ) Law of Property Act 1925 which requires the creative activity of an easement to be by written title.
The cogency of this easement can be tested by analyzing whether or non all the needed features of an easement have been met. There are four demands to a valid easement, and whilst these have long been jurisprudence, they were most elegantly and comprehensively reiterated and expressed in the instance of Re Ellensbrough Park 1956 Chancery 131. There is no demand to discourse the facts or the determination of this instance in any item as we are merely interested in the demands for a valid easement listed within this instance.
The first demand is that there is a dominant and a servient tenement. This means that there is a piece of land which receives the load of the easement and a piece of land which reaps the opposing benefit. The principle for this demand is that there must be a piece of land to which the easement is attached, after all it is a land involvement and non a personal 1. In our instance, figure 26 is the dominant tenement [ piece of land ] , and figure 28 is the servient tenement, the piece of land to which the load of the easement is attached.
The 2nd demand is that the easement must confabulate a benefit on the dominant tenement. In our instance the benefit is entree to the garden of the belongings, and as such this demand has been satisfied.
The 3rd demand for a valid easement is that the same individual can non be the proprietor and the resident of the servient and dominant tenements. In our instance this demand is surely non a job as we are told that figure 28 and figure 26 are owned by different people, Mr Elmore and Mr Jennings severally.
The concluding demand is that a valid easement must be capable of organizing the capable affair of a grant. In kernel this means that the two proprietors of the dominant and servient tenements must be of full legal capacity at the clip of doing the easement, and besides that the footings of the understanding must be sufficiently clear and precise. It is besides believed that this demand prevents an understanding going an easement where the capable affair of that easement would ensue in one of the parties to that understanding holding to pay money, although in latter old ages instances have originating where it has been held that this portion of the demand does non use when the easement in inquiry requires the hard-on of fence by one of the parties. In our instance this demand has surely been met. Both Mr Elmore and Mr Jenkins are of full legal capacity, and the topic of the understanding giving rise to the easement is really clear and cheap to either party.
We can therefore conclude that a valid easement has been created between figure 28 and figure 26.
Let us now discuss the issue of whether or non the easement remains in being even though the Mortgage Company have now taken ownership without cognition of the easement, and without the easement holding been registered as a legal involvement on the land register.
The fact is that easements are one of the few types of involvements which pass with the land regardless of enrollment. In this instance the presence of the way eliminates any ‘buyer beware’ issues ; the Building society could hold seen the way on review of the land at any clip. In this manner the easement does non acquire destroyed merely because it has non been registered. The legal proviso which allows for this unregistered involvement to go through with the land is s62 of the Law of Property Act 1925.
As a consequence of this, Mr and Mrs Bolton, the prospective purchasers of figure 28 can non be assured that they can retain privateness of their garden. If they purchase the belongings they will be encumbered by the easement which exists. This easement is attached to the land and remains despite the fact that it has non been registered. Therefore if Mr and Mrs Bolton do purchase the belongings, Mr Jenkins will still be lawfully entitled to asseverate his rights under the easement to traverse their garden via the way. I would therefore suggest that Mr and Mrs Bolton do non purchase the belongings if privateness of their garden is their figure one concern.
4. Albert Close
In 1986, Mr Albert built four houses on land he owned in Edgebaston. He besides laid down a private route, which he called Albert Close, to give entree to each of the houses from the chief route.
Mr Albert sold three of the houses with freehold rubric absolute to Mr and Mrs Bentinck ( no. 1 ) , Mr Chakrabarti ( no. 2 ) , and Ms Denzill ( no. 3 ) and kept the other house ( no. 4 ) for himself. The transportation of each of the houses was in a standard signifier in which the purchaser ( inter alia ) covenanted with Mr Albert and with the other occupants of Albert Close:
to utilize the belongings as a individual private home house merely
non to allow the belongings autumn into disrepair
non to paint the belongings any coloring material other than white.
Detailss of these compacts were entered in the Charges Register of the purchasers ‘ rubrics.
In 1996 Mr Albert died and his house passed under the intestacy regulations to his girl Eleanor, who so granted a rental of no. 4 for a term of 99 old ages to Mr Franklin.
Mr and Mrs Bentinck still live at no. 1. Mr Chakrabarti sold no. 2 to Mrs Gell in 1995 and Mrs Gell still lives at that place. Ms Denzil sold no. 3 to a company called Homesteads Ltd in 2002.
Since they bought no. 3, Homesteads Limited has allowed to the belongings to fall into disrepair: the roof has legion tiles losing, the doors and Windowss are icky and the company has painted the outside in a shadiness called “ neon turquoise ” . Most of the brickwork is severely in demand of rhenium indicating. As a consequence of the decrepitude, Homestead Limited ‘s designer drew up programs for pulverizing the bing house and edifice two detached cottages on the land. Last hebdomad Birmingham City Council Planning Committee granted be aftering permission for renovation along the lines the designer proposed.
Mr and Mrs Bentinck, Mrs Gill and Mr Franklin, the bing occupants of Albert Close, are unhappy. Is at that place any action any of them can take to forestall the reconstructing traveling in front and to reconstruct the character of no. 3 to what it was before Homesteads Limited bought it?
This job inquiry relates to the jurisprudence of restrictive compacts.
In English jurisprudence there is a regulation that restrictive compacts will non and can non be enforced by the common jurisprudence. Alternatively, the enforcement of a restrictive compact must be sought through equity, although there are several regulations which have been established which all must be met before a restrictive compact will even be enforced in Equity. Let us now examine these demands in bend and see if they have been met by the facts of our job inquiry:
The aforesaid regulations were foremost established in the instance of Tulk v Moxhay [ 1888 ] 41 ER 1143. The facts of this instance are unimportant and irrelevant to our treatment, and as such, my scrutiny of this instance shall be limited to the demands and limitations contained within.
The first demand is that the compact was made for the protection of the land at the clip the compact was made. In our instance this surely is true ; the compact was made to protect the character of the vicinity.
The 2nd demand is that the land is identifiable from the original compact. This is surely the instance here, and this is confirmed by the fact that the inside informations of the compacts have been lodged on the rubric workss of all four of the houses in the vicinity.
Third, it must hold been intended that the compact would run with the land. Again this is surely the instance, as the purpose to maintain the vicinity in good fix and gustatory sensation was a long term end and non simply a short-run one intended for merely the current [ at the clip of the creative activity of the compacts ] proprietors of the belongingss.
Fourthly, the footings of the compact must be negative in nature. In our scenario this is surely the instance with the last two judicial admissions of the compact being negative bids, i.e. 1000 must non…
In respects to the first judicial admission, ‘to use the belongings as a individual private home house merely, ’ whilst, Prima facie, this may look like a positive bid, it does non take excessively much of a stretch of the imaginativeness to paraphrase it of all time so somewhat to to the full fulfill the demand of negativeness, i.e. ‘do non utilize the belongings as anything other than a individual private home house.’
All of these demands have hence been met, and as such, these restrictive compacts are of the sort potentially enforceable in the tribunals of Equity. However it must be remembered for this compact to be enforceable against Homesteads, Homesteads must hold been cognizant of the compact prior to their purchase of the belongings ; the compact is capable to the general restrictions of equity the most of import being that it shall non be imposed on a bone fide buyer without notice.
As the inside informations of the compacts are registered on the land workss at the Registry, there is surely no opportunity that Homesteads were incognizant of the compact. With this in head, the compact is enforceable against Homestead in the tribunal of Equity.
Therefore in relation to the fact that Homestead have allowed their belongings to fall into disrepair, the other occupants could take homestead to tribunal to seek an order for specific public presentation to mend their belongings.
In relation to the bluish pigment ; once more the occupants who are party to the compact could take homesteads to tribunal and seek specific public presentation from the tribunals of Equity so that Homestead be ordered to repaint the belongings white.
In relation to the destruction nevertheless there is nil that the occupants can make to forestall this from go oning, as there are no edifice limitations contained within the compact. However, one time the belongingss are built there is no uncertainty that the same negative judicial admissions which applied to the old belongings will use to the new belongingss, and as such they will hold to be painted white and kept in fix besides.
The fact that Homestead are constructing two cottages might be seen as a confliction with the first limitation of the compact, that the land be used for individual private brooding merely. However it seems clear that this limitation was non interested in the figure of belongingss, but instead their land usage, and as the program is to utilize the cottages for individual private home there is a high opportunity that the new physique will non conflict with this term of the compact. There is no injury the occupants seeking to implement via the alternate reading of the diction nevertheless should they truly wish to forestall the physique from taking topographic point.