Land Law

Question 1

Central problem of Conveyancing?

Answer 1

Whether Pre existing interests will bind new interests

Question 2

the 3 Questions to tackle central problem

Answer 2

What is the nature of the right? ie is right capable of being property right
Has it been correctly created? ie deed or registration
is it enforceable against new interests? ie priority and registration

Question 3

what does terra nulliius mean?

Answer 3

Nobody’s land

Question 4

Where does Terra Nullius come from?

Answer 4

Related to lands possessed by first nations people such as Canada and Australia

Question 5

There is an assumption that a person has a property interest if

Answer 5

they are in possession

Question 6

How did colonisers steal aboriginal land if possession key?

Answer 6

Aboriginals not using land in the right way so deemed to be less than human so land is terra nullius

Question 7

Milirrpum v Nabalco 1971 Australian case FACTS

Answer 7

First time aboriginals took action over issues of land ownership

Concerned mining rights to private company Nabalco on lands which were asserted to be those of yolnu people

question whether Australia would recognise Communal native title.

Question 8

Milirrpum v Nabalco 1971 Australian case JUDGEMENT

Answer 8

Australia does not recognise communal native title so Yolnu people had no interest in the land

key reason was no ability to sell defined plot with communal native title therefore cannot exclude- wasteland

Question 9

Mabo v Queensland no2 1992 Australian case FACTS

Answer 9

Concerns annexation of Mer Island to colony Queensland

Merian people occupied Mer long before colonisation

Subject to common law subsequent to colonisation so did Britain have absoloute right over land or subject to merian peoples rights

Question 10

Mabo v Queensland 1992 Australian case JUDGMENT

Answer 10

Britain did have sovereignty over Australia meaning they had underlying title

however burdened by traditional interests of first nation Australians

meant first nation Australians entitled to possession, occupation, use and enjoyment of land against everybody

win for aboriginals compared to Milirrpum

Question 11

Dorsett criticisms of Mabo v Queensland no2 judgment

Answer 11

Means grant of freehold interest would surplant native title

expect aboriginals to fight for their rights yet illegal order imposed upon them

Merian people using land for agriculture which is easily identifiable as a proper use of land

Question 12

Ktunaxa Nation v British Columbia 2017 Canada case FACTS

Answer 12

Ktunaxa appealing against ski resort building in important spiritual area

after ktunaxa consulted numerous times decided would not be posssible

Question 13

Ktunaxa Nation v British Columbia 2017 Judgment

Answer 13

Court said consultation was properly undertaken and building of ski resort did not prevent belief in grizzly bear spirit even though significance removed perhaps

Question 14

what does Ktunaxa Nation v British Columbia judgment mean?

Answer 14

Failure to understand relationships to land that fall outside of what is considered normal

value of money and economy > spiritual values of first nations

Question 15

what is manji, there is nothing past about historical land injustices reading about?

Answer 15

happens in Present day Kenya

indigenous people failed by post independent state because they are deprived of access to most vital means of production ie grazing cattle

similarly, courts fail to recognise their claims

decolonisation period led to Kenya’s leaders cooperating in preservation of European interest’s and could be relied upon to check any more militant demands

Question 16

what is Bhandar, the colonial lives of property reading about?

Answer 16

Property law being a crucial mechanism for the colonial accumulation of capital

property laws and racial subjectivity developed in relation to one another

central argument that modern day property laws emerged along with and through colonial modes of appropriation

Slaves was creation of new forms of property

Uses Cheryl haris article whiteness as property —- property an analogue of whiteness? Whiteness shares critical characteristics with property ie the right to use and enjoyment, the reputational value, the power to exclude… all characteristics of whiteness shares by various forms of property.

Racial regimes of ownership - slave trade

Not just possession that is characteristic of white settlement but possession of land that justified ownership also determined by ideology of improvement
Link to John Locke

Question 17

Land registration act 1862 negatives

Answer 17

complicated and uneven observance of transfer registrations

prospect of fraud or mistake high

ultimately ineffective

Question 18

land transfer acts 1875 and 1897 fix 1862 act?

Answer 18

no, simplified but still dependant on voluntary registration

very few people bothered

parallel existence of registers under 1862 act

Question 19

Land registration act 1925 progress but also still failures ?

Answer 19

interests in land generally need to be registered in order to bind future purchasers

creeping compulsory nature

problems with overriding interests … too many etc

registered and unregistered land not equivalent

Question 20

land registration act 2002 fix?

Answer 20

met criticisms of 1925 land registration act ie limited overriding interests and harder to acquire land through adverse possession

Question 21

principles of LRA 2002

Answer 21

marketability - conveyancing process much simpler, greater transparency etc

compulsory registration- to see off unregistered land

title by registration?

Question 22

conveyancing process

Answer 22

pre contract
contract exchange
completion
Registration

Question 23

what does contract stage mean for purchaser and seller?

Answer 23

purchaser has equitable interest and access to specific performance remedy

seller holds the property on trust and can enforce the contract and have contract enforced against them

Question 24

what does com completion mean for purchaser and seller?

Answer 24

purchaser pays purchase price and equitable right falls away

Question 25

what does registration stage mean for purchaser and seller?

Answer 25

Disposition only complete by registration but registration gap can be 1 month purchaser has new equitable interest tom prevent seller taking advantage of title

Question 26

what is Sarah Keenan, smoke, curtains and mirrors: the production of race through time and title registration about?

Answer 26

argues Torrens title produces temporal order (arrangement of events in time) which enables land market coordination by rendering some relationships with land temporary and making others indefeasible

Question 27

what does sarah keenan say about categories produces by Torrens system?

Answer 27

categories materialise as race title registries in settler colonies understood as process that demarcated populations those demarcated as inhabiting a historical period that has now ended are rendered temporary and treated as waste to be removed from the land while those demarcated to be the lands future are made indefeasible and given right to ignore and exclude what came before them. therefore, demarcated populations materialise as race.

Question 28

what does Sarah Keenan say happens when there are disputes about title

Answer 28

courts do not declare anybody the owner but instead decide which party has better title at the time therefore, title is relative rather than absolute and ultimately based on physical possession. eg squatter has better title than rest of world except owner and even owner can lose possession through adverse possession.

Question 29

how does registry make conveyance process less risky?

Answer 29

produces new fresh title produce at faster rate that solicitors could make existing rights marketable under old conveyance system

Question 30

Why was torrens system inappropriate for England at the time?

Answer 30

Opposed by aristocrats as their land threatened by title registry Therefore Australia the testing ground as no hurdles from landed class or land Ladened Australia terra nullius so easy for fresh title making

Question 31

3 reasons for equitable property rights

Answer 31

1] to avoid unconscionable outcomes 2] enforcing reasonable expectations 3] mitigate against strict adherence to legal principles

Question 32

Proprietary estoppel elements

Answer 32

Representation Reliance Detriment

Question 33

Ives v high 1967 case facts

Answer 33

High and westgate were adjourning neighbours Westgate built block of flats and foundations encroached onto highs land Quid pro quo (favour in return for) was that high got right of way across westgate land Written evidence as to this promise Westgate sold to the wrights, who were aware of the scenario High built garage on his land and accessed through wrights land Wrights sold to ives who sought to sue high for trespass

Question 34

Ives v high 1967 case judgment

Answer 34

equity arisen in 2 ways : by mutual benefit and burden ie he who takes benefit must accept burden, through acquiescence Ives knew about right but it was never registered Elements for estoppel satisfied as reliance was building the garage, detriment occurred when reasonable expectation was dashed - reasonable expectation formed on basis of promise [acquiescence] Ives prevented from denying high the right of way

Question 35

How does proprietary estoppel effect registered land?

Answer 35

Section 116 LRA 2002 Confirms an equity by estoppel has the effect from the time the equity arises as an interest capable of binding successors in title subject to the rules about the effect of dispositions on priority

Question 36

Rules regarding the effect of dispositions on priority in section 28 LRA 2002

Answer 36

Priority is on basis of first in time But purchaser for valuable consideration has defence against unprotected interests [s29 + 30] Interests are protected by entry of notice in register or as an overriding interest

Question 37

Chaudhry v yavuz 2011 case FACTS

Answer 37

2 neighbouring properties Title plan for 35 owned by mr Vijays and included alleyway Mr Chaudhry needed access to upstairs of 37 Vijay agreed that Chaudhry could build staircase in alleyway giving access to upstairs of both properties Chaudhry paid for stair case No problem with agreement but property then sold to Yavuz who removed the staircase Chaudhry argues that easement by estoppel capable of binding purchaser

Question 38

Chaudhry v Yavuz 2011 case JUDGEMENT

Answer 38

Yavuz was purchaser for valuable Consideration so has defence against unprotected interests Chaudhry interest not protected by notice ie registered and not an overriding interest as no actual occupation

Question 39

Overriding interests are the what in the mirror ?

Answer 39

Crack in the mirror as rights that will bind irrespective of them not being registered Created out of social reality

Question 40

What schedule relates to overriding interests in LRA 2002?

Answer 40

Schedule 3 Para 1 relates to leases that can override ie below 7 years Relates to interests of those in actual occupation Relates to easements

Question 41

Why is chhokar v chhokar 1984 case important

Answer 41

Illustrates what amounts to actual occupation

Question 42

Relativity of title principle

Answer 42

Title is good against all except those who can assert a better claim

Question 43

Vulnerability in the idea that there is a right to defend possession against subsequent possessors ?

Answer 43

If completely true then would always be vulnerable to claims from earlier possessors

Question 44

Asher v Whitlock facts

Answer 44

Williamson ( a squatter) enclosed land on manor belonging to unnamed lord in 1843 and built cottage Lived their with wife Lucy and child marry Ann until death in 1860 Left land to wife for period of widowhood - thereafter land devolves to marry Lucy remarries mr Whitlock in 1861 but Lucy and Whitlock do not give up possession to marry Marry dies in 1863 followed by Lucy also in 1863 Marry distant relative argued title passed to her Whitlock said Williamson had no title as squatter

Question 45

Asher v Whitlock judgment

Answer 45

Distant relative title better than mr whitlocks - title relative

Question 46

Elements of adverse possession

Answer 46

Factual possession , actual physical possession and intention to possess which need to be adverse ie without permission

Question 47

Factual possession means?

Answer 47

Complete and exclusive physical control over the land

Question 48

Hounslow v minchinton 1997 said what counts as factual possession ?

Answer 48

Small garden of which they did trimming and weeding

Question 49

Powell v mcfarlane 1977 said intention to possess must be ?

Answer 49

Clear to the world

Question 50

Pye v Graham 2002 facts

Answer 50

Grahams were licensees of pye but license expired in mid 1980s AP period began as Grahams stayed on land and continued to work land Grahams kept asking for new license but pye refused but did nothing to remove them from land Grahams offered rent Graham did for 12 year which barred pye from recovering possession ( limitation act 1980)

Question 51

LRA 2002 sch 6 says application can be made for AP after 10 years but …

Answer 51

Registered proprietor has 13 weeks to counter and a further 2 years to commence possession proceedings

Question 52

LRA 2002 sch 6 para 5 says applicant entitled to be registered if equity by estoppel or if had not done correctly when should have or neighbour boundary dispute

Question 53

Best v chief land registeree 2015

Answer 53

Land register could not reject me best application merely because of mr bests criminalised squatting Hypothetically possession + satisfying the new process = application successful irrespective of legal aid , sentencing and punishment of offenders act 2012

Question 54

What reasons does manji give for suggesting the law might fail to remedy past harms relating to land injustices?

Answer 54

Land wrongs in Kenya do not fit near temporal categories of law and policy constructed around terms such as historical and land injustice Land reform has become reduced to land law reform so critical debates such as redistributive politics have been excluded

Question 55

How does bhandar colonial lives of property link to manji , nothing past about historical land injustices ?

Answer 55

Manji talking about land injustices in present day Kenya Bhandar emphasising that property laws built off of colonial appropriation thus encompass racial subjectivity Therefore obvious that current land injustices will continue

Question 56

What is Blomley boundaries of property about ?

Answer 56

Property is “done” Property law is complex and always courts trying to make sense of things Easy way for layman to understand through boundaries Gives example of trespass when crossing boundaries etc No set of property rights can survive unless moral significance taken - understood through stable spatial boundary lines

Question 57

Law commission report on land registration for 21st century 2001

Answer 57

Objectives of bill Electronic conveyancing Complete and accurate reflection of title Make unregistered land registered Reduce overriding interests Change adverse possession

Question 58

Breskvar v wall 1971

Answer 58

Breskvars owned property but wanted loan so had to execute a transfer for security purposes Transfer not executed properly as name of transferree was blank Second respondent who was meant to be the name filled in his grandson , first respondent Grandson used document to register himself and then tried to transfer to third respondent who was bona fide purchaser for good consideration Breskvar lodge caveat before transfer complete Held even though fraud first respondent still acquired title by registration

Question 59

Rosset case

Answer 59

Limits implied bargain to financial contribution to purchase price , deposit or mortgage repayments

Question 60

Royal bak of Scotland v etridge 2001

Answer 60

Wife standing surety case Bank needed to make wife aware of risks by meeting Wife needed independent advice Bank take reasonable steps

Question 61

Williams and Glynns bank v boland

Answer 61

Bank needs to make inquiry to see if beneficiaries This was not done so wife had overriding interest over mortgagor

Question 62

Norgan case

Answer 62

Gives mortgagee another chance

Question 63

John Locke labour theory of property

Answer 63

Connects to improvement of land or mixing labour with it

Question 64

Joint tenants means

Answer 64

Right to survivorship S36 aja 1970 + Norgan available Cannot claim overriding interest based on actual occupation BS v Flegg 1988

Question 65

When does overreaching apply

Answer 65

2 trustees ie registered proprietors

Question 66

Williams and glynns bank v boland 1981 Facts and judgment and reasoning

Answer 66

Husband sole trustee Falls into arrears Wife holds beneficial interest and living in property Wife ruled to have overriding interest Takes priority over bank Reasoning : Anyone who lends money on security of a matemonial home nowdays ought to realise that wife may have a share in it Should make sure wife agrees or make inquiries of her Wrong to say didn’t know she was in actual occupation

Question 67

How boland would go down today

Answer 67

Does not enable us to say mere presence alone gives beneficial interest Does not enable us to say occupation secure s14 and s15 TOTLA

Question 68

Sch 3 para 2 LRA

Question 69

Bs v Flegg 1988

Answer 69

Boland does not apply to 2 registered properiators Overreaching will take place even if in actual occupation.

Question 70

Bristol & west building society v hemming 1985

Answer 70

Implied consent will negate overriding interest as if know about mortgage and benefiting Also can extend to re mortgage situations

Question 71

Royal bank of Scotland v etridge 2002

Answer 71

Surety case Held banks need to take reasonable steps to ensure wives understand risks Notice etc

Question 72

Ropaegealach v Barclays Bank plc 2000

Answer 72

Bank exercised right to sale Took possession as person not residing there at time C did not need court order

Question 73

Inwards v baker

Answer 73

Representation - don should build property on his land and will be his own Reliance - son does not buy elsewhere and builds Detriment - nothing left to son in dads will and half brothers try to revoke his licence Estoppel - satisfied by life interest