Issues on Treasure, Covenants and Easements

The main issues that I would like to discuss are; treasure, covenant and easement. The first issue relates to the Treasure found on Albert’s land. All Treasure found belongs to the Crown[1]. To determine whether its treasure, it must come under the categories of treasure[2]. The two main categories that would apply are S1 (c)[3] and S1 (d)[4]. From these sections we are able to say that the 15 bronze coins would fall under S1 (c)3 and the other items found would come under S1 (d)4. Albert would have to report his findings to the local coroner within 14 days1. But Albert may be entitled to a reward, as he is the finder of the items[5]. The second part contains two issues which both are concerned with covenant. In both situations the covenant would be an equitable right, as it’s not mentioned under S1 (2)[6]. The first part is concerned with 1926 legislation, as the covenanted was made after the act, in 1958. Under the act[7], the equitable interest is divided into three categories which are family, commercial and residual interest. The covenant would come under commercial interest8. The type of commercial interest this covenant against any business activates would be class D (ii)[8] as stated in the definition. To protect this covenant it must be registered on the land charges register[9]. If the previous owner has registered the covenant correctly on the register, then it would bind Albert and future owners. If the covenant is registered it would be deemed that Albert has actual knowledge of the charge[10]. However if the covenant is not registered then Albert would not be bound by it. From the principal in Midlands’s the covenant would not bind Albert if any of the neighbours had told him about it[11]. The second issue relating to the covenant against the boundary would be before 1926 legislation. “Equitable rights bind everyone except the bona fide purchaser… without notice…”10 . Albert would be a bona fide purchaser of the value because he acted in good faith, paid a price for the property and had acquired a legal estate. For Albert to be an equity’s darling he must show that he did not have any notice of the covenant. They are three types of notice which are actual, constructive and imputed notice10. Actual notice is when the buyer knows about the rights over the property. But Albert did not have actual knowledge of the covenant as he was not expressly told. Constructive notice is when the buyer would have found out about the right “if such … inspections had been made … reasonably to have been made”[12]. Albert must inspect the deed title to see if they are any restrictions. In Hurt’s the Buyer had a duty to inspect the property and deed title[13]. In Kingsnorth’s it was held that the lender failed to take reasonable steps to avoid being fixed with constructive notice after he had visited Tizard’s house[14]. Albert may have constructive notice of the restriction. As it would be obvious if Albert looked at the title that it contained a restriction. To avoid having notice Albert could have inspected the title of the property12. Imputed notice is when the buyer’s agent has notice of the right12. If notice is given to any party acting on Albert’s behalf then it would be deemed that Albert has notice. But it is not clear whether he is given such notice. Finally in Mohammed’s situation the easement can be legal by long use. Also Mohammed and his father have been using the track for a period of time. If easement “…legal then it would bind the whole world”10. If they can successful show that the right has be used for 20 years or more then it would bind Albert. However Albert may claim under equitable rights, saying that he’s equity’s darling. This would not be a stable claim, because if inspection was made Albert may have foreseen the track being used, so therefore he may have constructive notice. In conclusion the treasure would belong to crown, which therefore Albert would not be able to sell it. However the covenant made after 1926, may not bind Albert as it is unlikely that it may be registered from the facts. The covenant made before 1926, may not bind Albert as he might not have any type of notice. Albert may be bound by Mohammed’s easement. Part B In this part I would be discussing overriding interest under registered land, fixtures and chattel. Firstly an overriding interest is an interest that is not on the register. This interest is binding on a purchaser if the interest holder can prove the elements of overriding interest[15]. Both Clive and Daisy’s interest would be dealt under overriding interest. Clive interest would be dealt under schedule 1[16] as he has a right to leasehold estates in land which is not exceeding seven years. The important elements of overriding interest are that Clive must show that he has interest in property and he is in actual occupation16. Lord Wilberforce stated that actual occupation is when physical presence on the land[17]. Clive is in presence of cottage as he has things in the cottage which he does not intention to remove, but it may be argued that he is not in physical presence as he is not living there. Furthermore Clive may have an interest in property because he intent to seek advice on his option right. In Webb’s the tenants were able to buy freehold because they were in actual occupation of the land and it was an overriding interest[18]. If Clive shows that he was in actual occupation of land, he may be able to obtain his option. The second situation would be dealt under Schedule 3[19]. For Daisy’s right to be an overriding interest she must show that she was in actual occupation of cottage[20]. It may be difficult for Daisy to shown that she was physical presence in the property17. In Chhokar’s it was held a wife had actual occupation of property when in hospital because she always intended to come back[21]. From the situation it can be said that Daisy intended to move back once her treatment is over and therefore may have actual occupation. Also Daisy would have to establish a right and interest in the property20. In Williams’s Mrs Boland had an overriding interest because she had made substantial contributions to the property17. Daisy may be able to prove an interest in property as she has carried out improvement to the cottage and has sent money. Another issue is that if reasonable inspection was made it would be obvious to known about the interest20. In Thomas it was held that if reasonable inspection of property was made then it would have been obvious that someone was in actual occupation[22]. Jayden made an inspection of property. But it was not a careful inspection because Jayden did not go inside, if had gone inside then would have seen Daisy’s things there. A fixture is part of the land and passes to new owner when land is sold[23]. A chattel is an item present on the land but is not part of the land and would not pass to a new owner23. To determine whether the stone feature was a fixture or chattel we would have to discuss the two fold part test, which is the degree of annexation and purpose of annexation test. Degree of annexation raises a presumption that if attached to the land and more firmly then would be a fixture[24]. In Holland it was held that the looms were fixtures because they were nailed firmly to the floor[25]. The stone feature may have been firmly attached to the land due to its nature and was large. Purpose of annexation is concerned whether if the item is attached to the land for purpose of enjoyment24. But if attached to land with intention of it being part of it or to improve it then would be a fixture24. In Berkley it was held the plinth was a fixture because it contributed to the overall design[26]. The stone feature may contribute to the overall design as it’s an 18th century farm. It may be argued by Brain that the stone was to be enjoyed in its own right. In Whaley it was held that the tapestry was placed in the room to enhance it[27]. The stone feature may have been placed to enhance the courtyard. In conclusion, if clavier and daisy can prove to have an overriding interest then Jayden would be bound by their interest. However Jayden may be able to overreach their interest if she pays clavier and daisy. The stone feature is likely to be a fixture and Jayden may claim it back. 1

[1] The Treasure Act 1996, S2(1) [2] The Treasure Act 1996, S1 [3] The Treasure Act 1996 ,S1 (c) [4] The Treasure Act 1996, S1 (d) [5] The Treasure Act 1996, S10 [6] Law of Property Act 1925, S1 (2) [7] Land Charge Act 1972 [8] Land Charge Act 1972, D(II) [9]Land Charges Act 1972, S3 (1) [10] Law of Property Act 1925 [11] Midlands Bank V Green [1981] AC 513 [12] Law of Property Act 1925, S.199 [13] Hurt V Luck [1901] 1 Ch 45 [14] Kingsnorth Finance Co Ltd V Tizard [1986] 1 WLR 783 [15] Land Registration Act 2002 [16] Land Registration Act 2002, schedules 1 [17] Williams & Glyn’s Bank V Boland [1981] AC 487 [18] Webb V Pollmount [1966] 1 ALL ER 481 [19] Land Registration Act 2002, schedules 3 [20] Land Registration Act 2002, schedules 3 (par2) [21] Chhokar V Chhokar [1984] FLR 313 [22] Thomas V Clydesdale Bank [ 2010] EWHC 2755 [23] Law Property Act 1925, S.205 [24] Law Property Act 1925 [25] Holland V Hodgson [1872] LR7 CP 328 [26] Berkley V Poulett [1976] EWCA [27] Whaley V Roehrich [1908] 1 Ch 615

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