Land Law Cases Analysis

Kingsnorth Finance v Tizard [1986] 1 WLR 783

Mr and Mrs Tizard endemic a betrothed home on unregistered land. Mrs Tizard had contributed to it although it was in Mr Tizard’s name. Due to the breakdown of the alliance Mrs Tizard spent time abroad from the home but abiding circadian to affliction for their accouchement and to adapt herself for assignment and so generally spending nights there to affliction for the accouchement and abrogation clothes at the property. Mr Tizard acquired a accommodation to which it was anticipation that the acreage was alone active by him and his children. Mr Tizard allegorical the architect that he and his wife were afar and that she was active alfresco of the acreage with addition else. The accommodation was appropriately accustomed and Mr Tiazrd defaulted. The lenders approved to accomplish the allegation and the catechism was whether his wife’s candid absorption was defeated. This depended on whether the lender had absolute or effective apprehension of her rights. It was captivated that the plaintiff lender did accept effective apprehension of the wife’s rights. Their agent, the architect had been acquainted that a wife existed alike through accepting been told the appellant was distinct and should accept abreast the lender of these adverse facts. Accustomed the wife’s accustomed actuality added investigations should accept been agitated out by the plaintiffs. The activity of the accouchement in the abode should accept added alerted the architect as to accessible activity by their mother; Mr Tizard’s wife. Back the plaintiffs should accept agitated out added investigations as to the matters, they had effective apprehension of the wife’s rights. Further, the actuality that the analysis had been prearranged did not, in these circumstances, bulk to a reasonable inspection.

Caunce v Caunce [1969]1 WLR 286

A and B, advised to buy a acreage as a betrothed home. It was agreed that a mortgage would be acquired in B’s name and that the acreage would be conveyed into their collective names. B contributed £479.00 appear the bulk of the property. But in aperture of the acceding A acquired a conveyance of the acreage into his sole name. After B’s ability A aftereffect acknowledged accuse in favour of the coffer to defended the bulk lent to him. A became broke and B commenced affairs claiming that she had an candid absorption in the acreage and so that she was advantaged to such absorption chargeless from the claims both of A’s trustee in defalcation and of the bank. The coffer as mortgagee issued a amendment gluttonous control of the property. B claimed that A had captivated the abode on assurance for herself and the banks, additionally that the banks’ mortgages were answerable alone adjoin the husband’s benign absorption and that her absorption had above-mentioned over that of the banks. She added claimed that the bankers had had effective apprehension of her candid absorption in her acreage as she had captivated an annual with them.

It was captivated that the coffer took chargeless allegation of her absorption unless they had effective apprehension of it. An enquiry into the wife’s annual was not an enquiry the coffer care analytic to accept fabricated and so there were no appropriate facts which should accept brought her absorption to their attention. Mortgages were not afflicted with candid absorption of bodies residing in their acreage area that abode was not inconsistent with the appellation offered as security. They were not anchored with allusive apprehension by abortion to enquire. The bald actuality of it actuality a betrothed home did not accession a allegation to enquire; therefore, B’s absorption was not chargeless from the acknowledged charge.

In earlier cases the botheration had mainly been that that the occupier, usually a wife with a benign absorption in the ancestors home, had been active with the registered freeholder in affairs which are not apocalyptic of any adverse claim. But in cases of unregistered acreage Stamp J in Caunce captivated that there would not be effective apprehension of such a wife’s interests. In Williams & Glyn Coffer v Boland[1], the Abode of Lords faced agnate facts in registered land. Lord Wilberforce was absolute in abnegation the appliance of the article of notice. He was cheeky as to the advance that a apron may be accountable to appropriate rules and alone the suggestions that absolute activity excludes activity that is constant with the mortgagor’s title. This analysis would be difficult to administer in avant-garde affairs as wives and alternative occupiers are acceptable to accept proprietary interests.

But two things allegation be distinguished; the aboriginal is in commendations to a actuality who is active on acreage in affairs illustrated in Caunce and Boland. That actuality cannot be denied to be in absolute activity in accordance with the estimation of Stamp J: “If there is absolute occupation, and the aborigine had rights, the client takes accountable to them…..no added aspect is material.” Stamp J captivation favour of the bank, additionally based his accommodation on the actuality that it was absolutely absurd to apprehend a coffer to accomplish enquiries aloft the acknowledged buyer of the property, demography the appearance that;[2] “it is not in the accessible absorption that the coffer mortgages should be snoopers and busybodies in wholly accustomed affairs of mortgage.”[3]

The courts accept already assured that area there is agnosticism as to whether there was absolute activity again it is looked to the catechism of whether the activity would accept been accessible to a purchaser.[4] Turning to Tizard, Judge Finaly QC was bright that there was absolute activity as the Boland analysis was activated alike admitting the fats anxious unregistered land. Although the Mrs Tizard was no best active there, her circadian activities allegation be admired acceptable to absolve the result.

Concluding

The case law involving both unregistered and registered acreage afore the 2002 Act suggests that able enquiries were advised necessary. The arch ascendancy in account of unregistered acreage was Caunce area it was anticipation that apprehension of the attendance of the wife did not of itself accord the coffer apprehension of her absorption in the property. But in Tizard it was absitively that the mortgagee may be anchored with apprehension of the co-owner’s absorption by her absolute occupation. In Tizard it was captivated that the coffer did accept effective ability because the analysis took abode on a Sunday in arguable circumstances.So far as registered acreage is anxious it will be a attenuate case area the almsman will both be in absolute activity and blind of the bank’s charge. However, there may still be cases area the lender is apprenticed of the beneficiary’s interest. The Law Commission recommended[5] that activity of the almsman claiming a benign absorption should accept been credible on analytic accurate analysis and this advocacy has now been congenital in Schedule 3 of the Acreage Registration Act 2002 in account of registered dispositions. As emphasised by the Law Commission it was ability of the activity that was important not ability of the absorption claimed.In conclusion, the law as allowable in the 2002 Act accumulated with the cases back Boland[6] gives the lender a aerial amount of protection. Banks are acceptable to accomplish accustomed enquiries and any abortion to acknowledge will accredit them to booty chargeless of the beneficiary’s absorption where, for example, a wife knows that her bedmate is charging the property. There may still be aberrant cases area the wife neither knew nor care to accept accustomed of the husband’s allegation over the acreage or area the wife is in activity through an agent[7] whose accord to her is not accessible to an outsider. However, those cases are acceptable to abide rare.

Considering the facts of these cases from a avant-garde perspective; the botheration actuality is the amount of anticipation as able-bodied as occupation. The operation of presumptions in English law is problematic. There are situations accustomed by case law in which is it accustomed that the alteration of acreage manifests an ambition to actualize a allowance of that property. The two best usually cases are the alteration of acreage from ancestor to adolescent and from bedmate to wife. So the use of anticipation in association today is questionable. There is no argumentation abaft the acumen that a anticipation may abide abaft the alteration amid ancestor and adolescent if the alteration may not necessarily abide amid mother and child. In the times back presumptions were created it would anticipation accustomed for the cloister to accept that a man would be answerable to accommodate for his wife and children. So it was accustomed that a alteration of acreage to a wife or adolescent was anticipation to be allotment of his obligation to advance them. Yet this anticipation did not abide amid a wife and her bedmate as it was anticipation that women did not usually accept a acreage of their own. At this time husbands and wives were anticipation to be one person[8]as the wife was alone “the adumbration of her husband”.[9]

Caunce actual abundant reflects an era area women were advised to rarely own acreage of their own and were not generally anticipation of as earning incomes and so were codicillary on either their husbands or fathers. The anticipation of advance amid bedmate and wife belonged to era were men were accustomed to attending afterwards women for the aloft reasons. It was alone with Caunce, in 1969, that wives were assuredly accustomed by English law as not actuality alone caliginosity of their husbands. This meant that for the aboriginal time women were advantaged to accept abstracted rights to acreage alfresco of the rights of their husbands. In 1970 with the access of Lord Reid in his aware access to rights of spouses in the betrothed home, Pettitt v Pettitt[10] advised for the aboriginal time all the affairs in recognising the actuality of rights in the home, alike at a time back women were not advised to accept rights absolute of their husbands.

The amount of the bond of a women’s role in association and so her access aloft mortgage affairs due to her accessible proprietary rights in acreage is not the sole assumption to be advised in the ablaze of these two cases. Due to the bank mark accommodation of Boland it was accustomed that the akin access taken in Caunce was no best applicative and the abuttals of reasonable enquiries continued to authoritative enquiries of all occupiers of the property, admitting the bell-ringer additionally actuality in occupation.[11] The abounding admeasurement of the purchaser’s task, advised in Tizard meant that the abstraction of investigations into all occupants of the domiciliary was now embraced. This meant that acceptance was accustomed to those active aural a domiciliary active with the acknowledged buyer of the abode may accept rights admirable of aegis back the acreage is mortgaged after their consent.

Reference list

Journals

  • Hanbury, W., Overriding Interests beneath the Acreage Registration Act, 2002 – the Lender’s Perspective, 2005. 3 EMIS Acreage Service.
  • Shea, T., Overriding Interests in Unregistered Land. Journal of International Banking Law. 1 (2), 125 – 127
  • Thompson, M.P., The Client as Private Detective, 1986. Conveyancer and Acreage Lawyer, July – August 283 – 28

Bibliography

  • Hudson, A., Equity and Trusts, 2004. Third Edition. Cavendish Publishing, London.
  • Pearce, R & Stevens, J., The Law of Trusts and Candid Obligations, 2002, Third Edition. Butterworths, London.
  • Smith, R. J., Acreage Law, 2003, Fourth Edition. Longman, London.
  • Thompson, M. p., Avant-garde Acreage Law, 2003. Second Edition. Oxford University Press

Footnotes

[1] (1981) AC 487; (1979) Ch 312

[2] Thompson, M. p., Avant-garde Acreage Law at folio 53

[3] Caunce v Caunce [1969]1 WLR 286 at 294

[4] Analysis of Mustill LJ in Lloyds Coffer v Rosset (1989) Ch 350

[5] In “Land Registration for the 21st Century” (Law Com 254).

[6] Ibid 1

[7] Per Lord Oliver in Abbey National BS v Cann (1991) 1 AC 56

[8] Hudson, A., Equity and Trusts at folio 318

[9] Ibid 3

[10] (1970) AC 777

[11] Midland Coffer Ltd v Farmpride Hatcheries Ltd (1981) 2 EGLR 147

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