Easement
The issue in relation to the given scenario is what shall be the interests of Sebastian in relation to the property of ‘BagEnd’ in the following instances: –
- Anthony crossing the bottom of the garden of Jasvinder.
- The painting of the house by Indira and utilizing the house for commercial purposes.
- Byron living in the ‘BagEnd’ house.
An easement can be said to be the specific rights that any individual may have over the land of any other. An easement may encompass the right of path or way, the right of utilizing service conduits (like power supply lines, drains and pipes, telecommunication cables), the right of light and others. In this regard, the right of path or way shall be discussed.
In Hair v Gillman (2000) 80 P&CR 108, it was said that in many situations, the grant or allowance of a specific easement (of right of way) might be implied, normally transpiring on the conveyance or transference of the land. It was also specified that the when a particular land is actually transferred (subject to any opposing intent), the existing easements shall also be conveyed automatically as per section 62 as provided in the Law of Property Act of 1925. In the case of International Tea Stores v Hobbs [1903] 2 CH 165, it was stated that a specific right of way (which were granted in the form of licenses) shall be considered to have been modified or transformed into a specific easement after the impacted (servient) land has been conveyed or transferred.
The case cited to be Tulk v Moxhay (1848) 41 ER 1143 can be regarded to be a pertinent case in connection to the given scenario. In this particular case, it had been stated that in case of a covenant, where the covenant is a negative one, the concerned party shall be prohibited from performing any specific thing. The concerned party shall be prohibited from performing a certain kind of action. Another pertinent case in this regard can be said to be the case of Gafford v Graham (1998) 77 P & C.R. 73. In the Gafford v Graham case, it had been specified that the negative covenant to not carry on or perform any kind of business or trade on the concerned land in order to preserve the residential feature of the neighbourhood can be considered to be a valid covenant. In the case of P&A Swift Investments v Combined English Stores Group Plc [1989] AC 632, it had been stated that any covenant should concern as well as touch the specific land. It was specified that if the negative covenant levied by the initial covenantee, benefits the covenantee as well as the entire society, then such covenant shall be considered to have touched the land.
In Morrell and Another v Stewart and Another [2015] EWHC 962 (Ch), it was said that as per the rule relating to Caveat Emptor, in any purchase and sell of property, the onus shall be upon the purchaser to investigate or examine the specific property that is being acquired and the specific seller shall be under a restricted responsibility to disclose or reveal the concealed defects and incumbrances in relation to the title. However, it has also been specified in this case that ever since the year of 2013, the selling of a property is conducted as per the ‘Consumer Protection Against Unfair Trading Regulations’. This actually places the burden or onus upon the specific seller to disclose or reveal anything that might cause an impact upon the decision of the purchaser to continue with the purchase. If the specific seller leaves out anything of significance (regarding which the seller had knowledge about), then the seller might be faced with prosecution irrespective of whether or not the purchaser wished to know about the issue.
Covenant
In the given situation, Anthony goes for a regular walk crossing the garden of Jasvinder. Indira wishes to paint her house with bright colors and start a sweet business in person from her house. Byron has paid 30 per cent of the price of BagEnd and lives in BagEnd peacefully. After all of this Jasvinder wishes to sell BagEnd to Sebastian.
Applying Hair v Gillman (2000) 80 P&CR 108, it must be said that the right of way of Anthony could be implied upon the conveyance or transference of the land to Sebastian. As per section 62 of Law of Property Act of 1925, when BagEnd is actually transferred, the right of way of Anthony shall also be conveyed automatically. Applying International Tea Stores v Hobbs [1903] 2 CH 165, the specific right of way of Anthony (which might have been granted in the form of licenses) could be modified or transformed into a specific easement after the BagEnd has been conveyed or transferred to Sebastian.
The case cited to be Tulk v Moxhay (1848) 41 ER 1143 can be regarded to be an applicable case in connection to the given scenario. Applying this particular case, it must be stated that in case of the covenant amidst Indira and Jasvinder, if the covenant is a negative one, then Indira shall be prohibited from conducting the business or painting her house with bright colours. Indira shall be prohibited from performing such actions. Another applicable case in this regard can be said to be the case of Gafford v Graham (1998) 77 P & C.R. 73. Applying the Gafford v Graham case, it can be specified that the negative covenant upon Indira to not carry on or perform the business of sweets on the concerned land in order to preserve the residential feature of the neighbourhood can be considered to be a valid covenant. Applying the case of P&A Swift Investments v Combined English Stores Group Plc [1989] AC 632, it should be stated that the covenant amidst Indira and Jasvinder is certainly concerning as well as touching the specific land. The negative covenant levied upon Indira by Jasvinder (regarding the business and bright colours), benefits Jasvinder as well as the entire society, and hence, such covenant shall be considered to have touched the land.
Applying Morrell and Another v Stewart and Another [2015] EWHC 962 (Ch), as per the rule relating to Caveat Emptor, in the purchase and sell of BagEnd, the onus would have been upon Sebastian to examine BagEnd and Jasvinder would have been under a restricted responsibility to reveal the fact relating to Byron. However, after the year of 2013, considering the ‘Consumer Protection Against Unfair Trading Regulations’, the burden or onus shall be upon Jasvinder to reveal the fact relating to Byron being 30 per cent owner and living in BagEnd. If Jasvinder leaves out such information, then he might be faced with prosecution irrespective of whether or not Sebastian wishes to know about Byron.
Conclusion
In conclusion: –
- Anthony may have right of way after the sale of BagEnd to Sebastian.
- Indira may not paint her house with such bright colors or continue with her commercial business if they are nuisance to Jasvinder and afterwards Sebastian.
- Byron living in the ‘BagEnd’ house should be informed by Jasvinder to Sebastian.
In the year of 1925, Land law in United Kingdom went through noteworthy modification and reform. A structure or an outline relating to the registration of title had been established in Land Registration Act of 1925 in relation to few areas of the land. In accordance to this structure or outline, the ownership in connection to the land as well as any burden in connection to such land are formally documented and recorded in any public Land Register. Presently, the structure, system or outline is governed or regulated by the Land Registration Act of 2002, and ever since the year of 1990, the entire United Kingdom has actually been subject to necessary registration on the “triggering events”. A primary objective of the above said Act of 2022 had been to convert the Land Register into a completely electronic and automated registry system so that it would be possible to investigate and examine title in relation to land online, with the least of the additional inspections and enquiries. This is actually known as the “mirror principle”. This essay shall forward a critical discussion in connection to the “crack in the mirror” concerning the system land registration.
Disclosure of Information
For several years the superseding interests in relation to the registered land have actually been the focus of debate and discussion (such as section 70 as provided in Land Registration Act of 1925). A specific reason regarding such controversy can be said to be the characteristics of this collection of interests that have the nature of legal estates as they bind and obligate even a buyer for a value in the absence of notice. This collection of the superseding interests is defined as the well-recognized onuses, burdens or responsibilities that are effortlessly discoverable, however, they cannot be opportunely entered in to the particular register. Moreover, section 3 as provided in the Land Registration Act of 1925, mentions that the superseding interests automatically bind and obligate the 3rd party purchaser, regardless of the fact that it is not possible to ascertain them by simply having a look at the specific register of the title, or regardless of the fact that 3rd party buyer is not truly aware regarding their presence. Although, the fundamental and central principle in relation to registered land can be said to be the ‘mirror principle’. The ‘mirror principle’ means to reflect in a complete and accurate manner and beyond every argument the present facts that would be material or essential in relation to the title of any man. However, registered land actually puts the burden or onus upon the buyer who must inspect and examine the specific land physically and make the enquiries and investigations of the individuals who live there.
The buyer has to face the issue of finding out and searching as much details as possible prior to buying the land. This specific burden or onus actually distorts and alters the absolute certainty that can be said to be the idyllic of every registered system all over the world up to the degree that the absolute title turns out to be something of an incongruity or a contradiction. There seems to be an inconsistency or a contradiction amidst the idea regarding the registered land and the collection of the superseding interests in connection to the registered land. This specific contradiction or inconsistency results in the distortion and alteration of the specific ‘mirror image’ that is known largely known to be the ‘crack’ in the specific ‘mirror principle’. For assessing or evaluating the ‘crack’ as well as the extent or degree of such ‘crack’, it would be necessary to inspect or examine the specific controversial and debated sections of the collection, in regard to the current cases.
A specific group or collection that should to be inspected or examined in the section 70 can be said to be section 70(1)(a). The wording that has been provided in section 70(1)(a), has been critically inspected and examined by MP Thompson, thereby identifying the inconsistencies or contradictions as well as the extent or degree of the specific ‘crack’. The specific words that should be focused upon would be “easements not being equitable easements required to be protected by notice on the register” in the above said section. A specific issue in relation to section 70(1)(a) can be said to be whether or not the equitable easements actually fall within the class of the superseding interests. The Act of 1925 comprises in the class of superseding interests just the specific equitable easements that are not mandatory to be safeguarded or protected by the notice in connection to the register. However, as per Dixon, it should be noted that nothing that is provided in the Act of 1925 mandates the equitable easements to be safeguarded or protected by the notice in connection to the register. Until very recently, just the decision that was forwarded in the case of Payne v Adams (1971) CLY 6486, mentioned the equitable easements in the form of the overriding or superseding interests. Although, no uniformity exists regarding the opinion amongst the academics. Hence, a reluctance exists in connection to the construal of the equitable easements in the form of overriding or superseding interests, as well as a wanted method of interpreting section 70(1)(a) as barely as possible in order to improve or augment the consistency and dependability of the specific register (thereby, contrasting the ruling in the case of William & Glyn’s Bank v Boland [1981] AC 487) and minimalize the degree of the ‘crack’ that is left in section 70(1)(a).
Application
In regard to the above, it should be noted that there are certain other provisions, which are actually pertinent in connection to the specific matter. For instance, section 70(1)(f) of the Land Registration Act of 1925. This particular provision relates to adverse possession of land. This can be considered to be an instance of an overriding interest, which specifies the local land rights as well as charges that are attained or being attained with the help of adverse possession in accordance to the Limitation Act of 1939. Another relevant provision in this regard would be section 70(1)(g) of the Land Registration Act. This specific provision again deliberates an overriding interest, which mentions the rights of all the individuals in the actual occupation of land or else in receiving of the profits and rents thereof and such rights are not actually disclosed (except when investigation is conducted in relation to an individual). Section 70(1)(k) of the Land Registration Act is another important provision in this regard. This particular provision specifies an overriding interest, which indicates the leases for a specific term or an interest that does not exceed 21 years, and which is granted at any rent in the absence of taking any fine.
The case cited to be City of London Building Society v Flegg [1987] UKHL 6 can be considered to be a relevant case in relation to the subject matter. This particular case relates to the over-reachable rights. In the above said case, it was held that Fleggs claim shall not be successful. Even though the Fleggs possessed a right in relation to the property because of their financial role and contribution in respect of the purchase, the right particular rights of theirs had actually been ‘overreached’. It was specified that as the particular rights had been over-reached, their interest in relation to the land ceased to exist. Therefore, they shall also not have the ability to make a claim regarding an IO. The case of Caunce v Caunce [1969] 1 WLR 286 is also an important case in this regard. In the case, the concerned property was actually an unregistered land, and husband acquired sole lawful title. Afterwards, the husband wished to sell the land short of the consent of the wife. Then, the wife wished to stop the sale in accordance to the doctrine relating to notice, proclaiming that the buyer did not fulfil the responsibility regarding the identification of the beneficial interests and privilege in relation to the concerned property, and particularly, as she had the actual occupation, thereby, holding an overriding interest in accordance to Law of Property Act of 1925. It was found by the Court (controversially) that any wife shall not be able to seek to use the doctrine relating to notice because the law perceived the husbands as having the ability to consent for the wives. Another pertinent case in this regard is the case of Hunt v Luck [1902] 1 Ch 428, where it had been mentioned that the doctrine relating to notice shall be applicable in case of in unregistered lands and not in case of the registered lands.
Conclusion
According to Dixon, rectification can be said to be the procedure of the alteration of the specific Land Register in any manner that might cause an impact upon any registered proprietor. It should be noted that the alteration of the specific register is required for updating the register while the land is being encumbered or transferred. In a presently ever more electronic structure relating to registration, mistakes by machine and man are likely. If no system exists for rectifying such mistakes, then it might apparently make the above said Act valueless, thereby, creating another big “crack in the mirror”. For striking a specific balance amidst correcting the genuine or honest mistakes and the fraudulent or deceitful attempts for changing the register, the occasions and methods in which it shall be conceivable to change the register have been restricted, as well as listed in the Schedule 4 as provided in the Land Registration Act of 2002. It had been argued in the case of Sainsbury’s Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 (Ch) that whether in certain specific circumstances the specific law was actually being avoided through the rectification. It was specified that it must be asked as to whether the specific rectification must be permitted in order to improve or augment the position of a proprietor while causing damage to any other if both the parties had been at fault. If one specifies the section 18 as provided in the Land Transfer Act of 1875, the equitable easements had been overriding or superseding interests, and it is not certain as to whether such position must be changed or altered. Another specific argument might be that the specific equitable easements are not actually in section 70(1)(a). Such argument had not been accepted in the case of Celsteel Ltd v Alton House Holding Ltd [1985] 2 All ER 572. Even in the earlier case of Re Charwood’s Reg Land [1933] Ch 547, overriding or superseding interests had been caused.
In conclusion, it can be said that the Land Registration Act is a clear piece of statute, regarding which the method relating to registration appears to function in a proper manner, particularly in comparison to ‘Land Charges System’. However, for the law that was intended to decrease the issues and modernize the law, the overriding or superseding interests give rise to a serious failing in comparison to the initial objectives of the particular act. The specific ‘cracks’ might be justified as the restriction and reduction of the particular interests in the Act must mean that fewer individuals would depend upon such interests in future. However, ultimately any buyer would still be at the risk of being obligated or bound by the unidentified interests. In the world of any specific purchaser, it would be doubtful that such provisions seem fair.
Celsteel Ltd v Alton House Holding Ltd [1985] 2 All ER 572.
Dixon, Martin. Land Law Q&A. Routledge-Cavendish, 2002.
Gafford v Graham (1998) 77 P & C.R. 73.
Hair v Gillman (2000) 80 P&CR 108.
Herian, Robert. “Legal recognition of blockchain registries and smart contracts.” EU Blockchain Observatory and Forum, 2018.
International Tea Stores v Hobbs [1903] 2 CH 165.
Keenan, Sarah. “From historical chains to derivative futures: Title registries as time machines.” Social & Cultural Geography 20.3 (2019): 283-303.
Keenan, Sarah. “Property: changing formations of having and being.” (2020).
Land Registration Act, 1925.
Land Registration Act, 2002.
Land Transfer Act, 1875.
Law of Property Act, 1925.
Morrell and Another v Stewart and Another [2015] EWHC 962 (Ch).
Nwafor, Ifeanyichukwu Valentine, Raphael Oshiobugie Sado, and Inipami Prince Johnnie. “A Review Of Land Information Management Systems.” Sustainable Development 5.1 (2022): 109-125.
P&A Swift Investments v Combined English Stores Group Plc [1989] AC 632.
Payne v Adams (1971) CLY 6486.
Re Charwood’s Reg Land [1933] Ch 547.
Sainsbury’s Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 (Ch).
Tulk v Moxhay (1848) 41 ER 1143.
William & Glyn’s Bank v Boland [1981] AC 487.
City of London Building Society v Flegg [1987] UKHL 6.
Caunce v Caunce [1969] 1 WLR 286.
Law of Property Act, 1925.
Hunt v Luck [1902] 1 Ch 428.
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