Land Law and Conveyance
Assignment 2

Peter has to consider the following issues to his intention of purchase Vincent’s freehold house whereby the title rests on an unregistered land:-

a. A freehold estate is owned on an indefinite period of time subject to Government’s rights also known to be fee simple absolute in possession unlike leasehold estates which is purchased on a specific period of time. Peter will need to identify the 2 restrictive covenants that was created in 1922 and 1945 by Vincent.

Restrictive covenant is an obligation in deed between parties that the property shall be used in a specified manner and prohibited to do any modifications to the land for example he cannot build a hotel on the land.

In the earlier days, most land were unregistered and was governed under Common law and subject to doctrine of notice. Hence the covenant in 1922 was subject to doctrine of notice. Until 1925, the statutes were first modified with the Land Charges Act 1925 being set up to register the different categories of interest of the unregistered land. This legislation is to protect the interest attached to the land for future purchasers.

We cannot dismiss the equitable interests that are bound to Peter who has knowledge of the interests. Peter is bound to the 2 restrictive covenants under 1922 and 1945 as long the covenants are enforced by way that (i) the covenantee retains the concerned land whilst the covenant is in place; (ii) the benefit of the covenant is for the covenantee and (iii) the covenants binds the purchaser of the covenantor’s land..

b. As we are highlighted, Vincent’s neighbor has no choice but to use the track at the bottom of the garden for access to the neighbour’s garage. This right of way is called easement. An easement has 4 principles to satisfy as in Re. Ellenborough Park [1956] Ch 131 and they are as follows:-

i) There is a dominant tenement (in this case is Vincent’s neighbor) who has a right of way over the servient tenement (that is Vincent); ii) The easement benefits the dominant tenement that is the neighbor has the benefit of using the track across the bottom of the garden for access to his garage; iii) There are 2 different owners of the dominant tenement (neighbour) and servient tenement (Vincent); and iv) There is a capability of being subject matter of a grant.

Peter was informed it was an informal agreement with the neighbor. So can the easement be otherwise known as a licence or proprietary estoppel? As we know licence is a temporary agreement between parties created for a certain period and thereafter be revoked. In this instance can the informal arrangement be a licence which does not has supporting legal basis that is a licence between Vincent and his neighbour. Vincent allows the neighbour to use the track and it arises as an expressed permission before the garage was built. In Wright v Macadam [1949] 2KB 744, it shows that the continuing use of the coal shed has passed as an easement rather than a licence.

We also can consider if proprietary estoppel rules applies in this case as Vincent represent to his neighbour some years ago allowing him to use the track to the garage even before the garage was built. Proprietary estoppel is defined that the owner of a land has expressedly or impliedly allows the other party by giving assurance for current or future rights in the owner’s land and also the other party relies on the detriment given by the owner of the property. In Crabb v Arun District Council (1976) Ch 179, similarly the neighbour has been led to believe he has a right of way and the detrimental reliance was he was not stopped by Vincent and it will lead to the neighbour to treat it as an easement granted by estoppel.

In conclusion, the arrangement between Vincent and his neighbour is an easement as it satisfies the 4 condition as set out in Re. Ellenborough Park as the neighbour benefits the use of land. It is a prescription of easement by the use of the track over a long period of time, from the garage not built till the intention of sale of land by Vincent. Therefore the easement will pass to Peter upon purchase of the land.

c. In Class F registry, it is created for the protection of home rights contained in the Family Law Act 1996 (amended by the Civil Partnership Act 2004). This is to protect the rights of legally married couple and also civil partners (also known as common-law-partners) by giving the right to occupy the home which is not co-owned by the other.

As a bona fide purchaser and in order to avoid unconscionable conduct on the purchase of the land like in Kingsnorth Finance Co v Tizard (1902), Peter will have to inspect the title deeds and need to establish contact to reach the other party who is registered in Class F since he discovered this by way of a constructive notice. Peter will have to determine if the property is co-owned or a tenancy-in-common with the other party.

Should Peter choose not to act as a bona fide purchaser, the equitable interest of the land may be enforced for the value of the estate against Peter as he chooses not to inspect and check on the interest that is attached to the land.

If the title of the land to the house is registered under the Land Registration Act 2002, it will save Peter on the hassle of the doctrine of notice as it registers the ownership and all adverse rights (legal and equitable interests) attached to the estate. As long the registration of the names of Vincent’s freehold estate is accurately entered, it will generate the real owners and all the interests attached.