Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion. In order to address the existing complexities in respect to the acquiescence of co-ownership beneficial interests in land, it is important to identify their differences. A co-ownership beneficial in an interest of land can be established thro... ... middle of paper ... ...owden' [2007] CONVPL 83, 86 M. Pawlowski, 'Imputed intention and joint ownership - a return to common sense: Jones v Kernott (Case Comment)' [2012] CPL 149, 158 P. O'Hagan, 'Quantifying Interests Under Resulting Trusts' [1997] MLR 420, 427 S. Gardner, 'Quantum in Gissing v Gissing constructive trusts' [2004] LQR 541, 548 S. Panesar, 'Quantifying beneficial interest in joint ownership disputes: is the constructive trust changing?' [2012] CONVPL. L.J 59, 67 W. Swadling, 'Explaining resulting trusts' [2008] LQR 72, 102 Cases Stack v Dowden [2007] UKHL 17 Jones v Kernott [2011] UKSC 53 Legislation Trusts of Land and Appointment of Trustees Act 1996 s 15(1)(a) Law Commission Papers Law Commission, Cohabitation: The Financial Consquences of Relationship Breakdown (Law Com No 307, 2007) Law Commission, Sharing Homes (Law Com, 2002)
in which property is owned by the state or group, to be shared in common
Robert Nozick argues in his Entitlement Theory that there are three main topics in the justice of holdings: the acquisition of ‘un-held things’, the transfer of holdings, and the rectification of injustice in holdings.1 Nozick’s theory of what makes a transfer of holdings ‘just’ should be rejected for two key reasons and the rectification of injustice of holdings should be rejected for two key reasons.
Bundle of Rights is one way to explain property ownership. Bundle of Rights Theory an individual holds a free hold estate of inheritance, that individual owns the whole bundle of rights. Some rights are considered too been known as bundle of sticks and they represent and identifiable rights. In the rights, there are two types of property real and personal property. Estates in land: life estate, leasehold estate, real estate, fee simple. It includes nonpossessory interest such as easement and liens. It talks about fixtures, property rights, mineral rights, air rights and surface rights.
Powell, Jefferson H. “The Original Understanding of Original Intent.” Harvard Law Review Vol. 98, No. 5 (Mar., 1985), pp. 885-948. Cambridge: The Harvard Law Review Association.
Throughout our class discussion on Leif Wenar’s argument on the topic of property rights, the Clean Hands Trust that he proposes stood out to me. Although his proposal may seem ideal when written on paper, I had several questions regarding the execution of this Trust, should we ever attempt to realize it.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
It has been generally acknowledged that the doctrine of proprietary estoppel has much in common with common intention constructive trusts, i.e. those that concern the acquisition of an equitable interest in another person’s land. In effect, the general aim is the recognition of real property rights informally created. The similarity between the two doctrines become clear in a variety of cases where the court rely on either of the two doctrines. To show the distinction between the doctrines, this essay will analyse the principles, roots and rationale of both doctrines. With reference to the relevant case law it will be possible to highlight the subtle differences between the doctrines in the cases where there seems to be some overlap. Three key cases where this issue surfaced were the following: Lloyds Bank Plc v. Rosset (1991), Yaxley v. Gotts (1999) and Stack v. Dowden (2007). This essay will describe the relevant judgements in these cases in order to show the differences between the two doctrines.
It is important that I make this very clear and that I do so at the earliest possible moment. I must do this because the essay that you are reading is about intellectual property, and that means that this essay must be self-referential. When one writes or speaks or communicates in any way about intellectual property, one is dealing with some of the most basic rules of the very medium in which one is operating. There is no neutral ground here, no possibility of genuine detachment or objectivity. Either I am going to claim the protection of the current laws that apply in the United States and under the World Intellectual Property Organization, or I am not.
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
...‘Consideration: Practical benefit and the Emperor’s new clothes’ in Beatson and Friedmann (eds). Good Faith and Fault in Contract Law (Oxford University Press, 1995);
Land Law The understanding and basis of land law in this country today largely stems from the substantial amount of legislation, which was developed in, and around 1925. It is important to note that reforms aimed to simplify and rationalise substantive law. Over the years there have been many developments and adjustments to the 1925 legislation, but the essential framework has all in all remained the same until 2002. When the Land Registration Act 2002 was enacted and implemented in October 2003. The policy objectives of the Land Registration Acts 1925 and 2002 was to simplify conveyancing by registering all titles to land in a central register.
George’s act of taking a second mortgage without the consent of his brother Tony is a breach of their contract . By agreeing to register the property under his brother’s name, Tony was acting upon the goodwill and utmost faith and did not expect being shortchanged. Utmost good faith is a vital principle in property management. It involves disclosure of the contract terms to both interested parties. Failure to abide by the rules often leads to severe consequences. Before the signing of the agreement, each must understand the terms and conditions of the contract.
The concept of ownership of property as a bundle of rights and types of property
One of the special concepts in land law is of overriding interests. The standard practice in the English land law is all the interest and rights affecting or is binding over particular a land should be registered in the Register. However, the concept of overriding interest denotes that there are interests which are binding on the owner (the registered proprietor) regardless of not being formally registered. It was introduced because in that era it was though that it would be unreasonable and unjust to overlook such rights and interest enjoyed. Overriding interests need not be registration to bind the legal owner of the land. Therefore, if the land is sold to another person the interests and rights would not be lost. It can be said that overriding by nature are unregistered if they are registered they will cease to be an overriding interest.
Proprietary estoppel is a legal principle which prevents someone, who has led another to believe in a particular state of affairs from illegally going back on the words which led to their belief. It arose in the case of Dillwyn v Llewelyn (1862), where a son spent £14,000 on building a house on the land with his father approval and promise that he would be in charge of that land but later found out that his father did not leave the property to him in his will. Lord Westbury held that the freehold int he land had been transferred to the son. However, four elements must be proved in order to claim for proprietary estoppel which are :