Land Law Cases Analysis

agriculture Law Cases abstractKingsnorth Finance v Tizard 1986 1 WLR 783Mr and Mrs Tizard owned a matrimonial home on unregistered land. Mrs Tizard had contributed to it although it was in Mr Tizards name. ascribable to the breakdown of the matrimony Mrs Tizard spent date away from the home but returning daily to c are for their children and to correct herself for work and so often spending nights there to care for the children and going away clothes at the property. Mr Tizard obtained a loan to which it was purpose that the property was wholly occupied by him and his children. Mr Tizard informing the surveyor that he and his wife were fragmentd and that she was backing outside of the property with someone else. The loan was consequently granted and Mr Tiazrd defaulted. The lenders want to enforce the perpetration and the question was whether his wifes equitable care was defeated. This depended on whether the lender had authentic or rehabilitative nonice of her rights . It was held that the complainant lender did suck constructive apprisal of the wifes rights. Their agent, the surveyor had been witting that a wife make uped even with having been told the applicant was single and should take in informed the lender of these contradictory facts. Given the wifes affirm existence further investigations should work been carried out by the plaintiffs. The occupation of the children in the house should have further alerted the surveyor as to possible occupation by their mother Mr Tizards wife. Since the plaintiffs should have carried out further investigations as to the matters, they had constructive nonice of the wifes rights. Further, the fact that the reexamination had been prearranged did not, in these slew, derive to a reasonable revaluation.Caunce v Caunce 19691 WLR 286A and B, intended to buy a property as a matrimonial home. It was agreed that a owe would be acquired in Bs name and that the property would be conveyed into their joi nt names. B contributed 479.00 towards the cost of the property. yet in breach of the system A obtained a conveyance of the property into his sole name. Without Bs friendship A effect legitimate sexs in favour of the cant to secure the amount lent to him. A became bankrupt and B commenced minutes claiming that she had an equitable stake in the property and so that she was entitled to such(prenominal) please let go of from the claims both of As trustee in bankruptcy and of the bank. The bank as owee issued a summons seek possession of the property. B claimed that A had held the house on trust for herself and the banks, excessively that the banks mortgages were charged only against the preserves right participation and that her interest had prior over that of the banks. She further claimed that the bankers had had constructive notice of her equitable interest in her property as she had held an cast with them.It was held that the bank took free charge of her interest u nless they had constructive notice of it. An enquiry into the wifes account was not an enquiry the bank ought reasonably to have made and so there were no specific facts which should have brought her interest to their attention. Mortgages were not abnormal with equitable interest of people residing in their property where that residence was not inconsistent with the title offered as security. They were not fixed with contrastive notice by failure to enquire. The mere fact of it being a matrimonial home did not raise a need to enquire therefore, Bs interest was not free from the legal charge.In sometime(a) cases the problem had mainly been that that the occupant, usu bothy a wife with a upright interest in the family home, had been living with the registered proprietor in circumstances which are not indicative of any hostile claim. But in cases of unregistered land Stamp J in Caunce held that there would not be constructive notice of such a wifes interests. In Williams Glyn Bank v Boland1, the House of sea captains faced similar facts in registered land. Lord Wilberforce was explicit in rejecting the relevance of the doctrine of notice. He was derisive as to the suggestion that a spouse whitethorn be subject to special rules and rejected the suggestions that unquestionable occupation excludes occupation that is consistent with the mortgagors title. This test would be difficult to apply in modern circumstances as wives and other occupiers are likely to have proprietary interests.But two things must be distinguished the first is in regards to a person who is living on land in circumstances illustrated in Caunce and Boland. That person cannot be denied to be in actual occupation in accordance with the interpretation of Stamp J If there is actual occupation, and the occupier had rights, the purchaser takes subject to them..no further element is material. Stamp J keeping favour of the bank, also based his decision on the fact that it was rather unreasonable to expect a bank to make enquiries beyond the legal owner of the property, taking the view that2 it is not in the public interest that the bank mortgages should be snoopers and busybodies in wholly normal transactions of mortgage.3The courts have already concluded that where there is doubt as to whether there was actual occupation then it is looked to the question of whether the occupation would have been obvious to a purchaser.4 Turning to Tizard, Judge Finaly QC was clear that there was actual occupation as the Boland test was applied even though the fats concerned unregistered land. Although the Mrs Tizard was no longer living there, her daily activities must be regarded sufficient to disembarrass the result.ConcludingThe case law involving both unregistered and registered land earlier the 2002 Act suggests that proper enquiries were considered necessary. The leading authority in respect of unregistered land was Caunce where it was thought that notice of the presence of the wi fe did not of itself ground the bank notice of her interest in the property. But in Tizard it was obdurate that the mortgagee may be fixed with notice of the co-owners interest by her actual occupation. In Tizard it was held that the bank did have constructive knowledge because the inspection took place on a Sunday in dubious circumstances.So further nigh as registered land is concerned it will be a elevated case where the beneficiary will both be in actual occupation and unaware of the banks charge. However, there may as yet be cases where the lender is ignorant of the beneficiarys interest. The Law Commission recommended5 that occupation of the beneficiary claiming a beneficial interest should have been apparent on reasonably careful inspection and this recommendation has now been incorporated in Schedule 3 of the demean Registration Act 2002 in respect of registered dispositions. As emphasised by the Law Commission it was knowledge of the occupation that was important not k nowledge of the interest claimed.In conclusion, the law as enacted in the 2002 Act combined with the cases since Boland6 gives the lender a high degree of protection. Banks are likely to make mensuration enquiries and any failure to disclose will enable them to take free of the beneficiarys interest where, for example, a wife knows that her husband is charging the property. in that respect may still be exceptional cases where the wife n any knew nor ought to have known of the husbands charge over the property or where the wife is in occupation through an agent7 whose relationship to her is not obvious to an outsider. However, those cases are likely to remain rare.Considering the facts of these cases from a modern perspective the problem here is the matter of presumption as well as occupation. The opearned run averagetion of presumptions in English law is problematic. in that respect are situations established by case law in which is it presumed that the ecstasy of property serv icemanifests an intention to create a gift of that property. The two most usu completelyy cases are the conveyance of title of property from father to child and from husband to wife. So the use of presumption in society today is questionable. There is no logic behind the reasoning that a presumption may exist behind the enthral between father and child if the transfer may not necessarily exist between mother and child. In the times when presumptions were created it would thought natural for the court to assume that a man would be obliged to provide for his wife and children. So it was presumed that a transfer of property to a wife or child was thought to be part of his obligation to maintain them. Yet this presumption did not exist between a wife and her husband as it was thought that women did not usually have a property of their own. At this time husbands and wives were thought to be one person8as the wife was merely the shadow of her husband.9Caunce rattling much reflects an e ra where women were considered to rarely own property of their own and were not often thought of as earning incomes and so were reliant on either their husbands or fathers. The presumption of advancement between husband and wife belonged to era were men were expected to look after women for the above reasons. It was only with Caunce, in 1969, that wives were finally accepted by English law as not being solely shadows of their husbands. This meant that for the first time women were entitled to have separate rights to property outside of the rights of their husbands. In 1970 with the influence of Lord Reid in his instruct approach to rights of spouses in the matrimonial home, Pettitt v Pettitt10 considered for the first time all the circumstances in recognising the existence of rights in the home, even at a time when women were not considered to have rights independent of their husbands.The matter of the juxtaposition of a womens role in society and so her influence upon mortgage tra nsactions due to her possible proprietary rights in property is not the sole principle to be considered in the light of these two cases. Due to the bench mark decision of Boland it was accepted that the restrictive approach interpreted in Caunce was no longer applicable and the ambit of reasonable enquiries wide to making enquiries of all occupiers of the property, despite the vendor also being in occupation.11 The full extent of the purchasers task, considered in Tizard meant that the idea of investigations into all occupants of the household was now embraced. This meant that recognition was given to those living within a household living with the legal owner of the house may have rights deserving of protection when the property is mortgaged without their consent.Reference listJournalsHanbury, W., overriding Interests under the Land Registration Act, 2002 the Lenders Perspective, 2005. 3 EMIS home Service.Shea, T., Overriding Interests in Unregistered Land. Journal of Internati onal Banking Law. 1 (2), one hundred twenty-five 127Thompson, M.P., The Purchaser as Private Detective, 1986. Conveyancer and Property Lawyer, July August 283 28BibliographyHudson, A., lawfulness and Trusts, 2004. Third Edition. Cavendish Publishing, London.Pearce, R Stevens, J., The Law of Trusts and Equitable Obligations, 2002, Third Edition. Butterworths, London.Smith, R. J., Property Law, 2003, 4th Edition. Longman, London.Thompson, M. p., Modern Land Law, 2003. Second Edition. Oxford University PressFootnotes1 (1981) AC 487 (1979) Ch 3122 Thompson, M. p., Modern Land Law at page 533 Caunce v Caunce 19691 WLR 286 at 2944 Analysis of Mustill LJ in Lloyds Bank v Rosset (1989) Ch 3505 In Land Registration for the twenty-first Century (Law Com 254).6 Ibid 17 Per Lord Oliver in Abbey National BS v Cann (1991) 1 AC 568 Hudson, A., Equity and Trusts at page 3189 Ibid 310 (1970) AC 77711 Midland Bank Ltd v Farmpride Hatcheries Ltd (1981) 2 EGLR 147