Land Law Problem Question
1.) Adverse Possession of “Grahams Mushroom Patch”
The first issue to address is whether or not Graham can apply to be registered as proprietor of the mushroom patch. As mentioned in the problem question he started selling wild mushrooms found across the bottom of the estate and well beyond the mushroom cottage’s garden in 1986, which is under apple manor’s land. In the summer of 1991, Teresa told Graham the licence agreement had to come to an end that following autumn as she intended to apply for planning permission to build another residence on that part of the land. Even though payments were not made, Graham continued to cultivate the land as his business was doing well and he was making substantial profits.
In order to establish whether or not graham can be registered as proprietor of the land, Grahams claims must come into a very specific time frame. As aforementioned, the license agreement between Teresa and Graham would end in autumn 1991, so his claim depends on when exactly that autumn the license agreement was ceased. This is because he came into adverse possession when Land Registration Act (1925) and Land Registration Act (2002)were abolished and came into force. If his license agreement ended prior to October 13th 1991 LRA 1925 applies. If his agreement any time subsequent of that date, LRA (2002) applies in his case changing his claims.
Land registration Act (1925) vs (2002) in the case of Graham
If Grahams license agreement falls within the time frame that the LRA (1925) was still in force, Graham would be able to make 2 claims against Teresa. Under s. 15 of the Limitation Act (1980) it states that a “Land owner shall loose the right to recover land following the expiration of 12 years from the date the action accrued him”. Under the old law, Graham can claim adverse possession if he was adversely possessing the land 12 years prior to October 13th 2002, where the LRA 2002 came into force. If this is the case, Graham can try and dispossess teresa under s.15 of the LA. However, this claim depends on whether or not he can prove that Teresa gave him permission to do use the land. Graham can make a claim that he had been in steady use and cultivation of the land subsequently after the license agreement had ended in this case, thus proving possible “permission”.
However, if Graham is unable to prove that Teresa gave him permission to use the land despite the end of the license agreement he cannot, under old law, try and dispossess the current owner of the land. In this case Graham can make a claim under the process of adverse possession. (explain adverse possession) If this is the case, the only thing Graham must prove is that he temporarily dispossessed the land for 12 years without the consent of Teresa. Therefore, under the old law in order for Graham to succeed to be registered as a proprietor of “Grahams mushroom patch” is he must show that benedetta, whom held legal title of apple manor, gave him permission to use the land from 1991 onwards if the land is unregistered. He can also make a claim for adverse possession if his 12 years of possession was completed prior to October 13th 2002.
Land Registration Act (2002)
If however, Grahams license agreement in autumn (1991) ended after October 13th Graham would have no claim to dispossess Teresa of the land due to 12 years of uninterrupted use. Such 6 of the LRA (2002) abolished the Limitation Act (1980) and set out new rules regarding adverse possession. In JA Pye LTD v Graham (2003) elements of legal possession under the new act were established. Firstly, a sufficient degree of physical custody and control must be proven. Moreover, an intention to excersize such custody and control of owner on behalf and for ones own benefit, more simply an intention to possess the land must be proven. Moreover, Sch. 2 para 6 LRA 2002 established certain conditions that must be met in order to make a successful adverse possession claim. In accordance to Sch.2 Graham must have enjoyed 10 years of uninterrupted factual possession. However, it must also be proven that it would (1) be unconcionable for the registered proprietor to try to dispossess the applicant, (2) that the application is entitled to be registered and lastly that (3) the land in question is adjacent to land owned by the applicant, and he reasonably believed that land belonged to him.
If the time frame fell bellow the 2002 act, Grahams claim to become proprietor would fail. Although he can prove uninterrupted factual possession, he would not have a reasonable belief that the land belonged to him since he was merely renting mushroom patch and had no interests in apple manor. Moreover, Graham failed to make a claim to register the land before autumn 2013 and merely continued to cultivate after the license agreement had been ceased. Therefore, Teresa should establish the time frame of the agreement to try and resist an attempt by Graham to be a registered proprietor of the mushroom patch.
The Fence Argument
Teresa can also make a claim against Graham by proving that he had no intention to possess. As seen in Pye v Graham LTD one of the elements to prove legal possession of land is to prove one has intention to possess land. Teresa can argue that following the end of the license agreement, Graham did not maintain the fence stating “Grahams Mushroom Patch – Keep Out!”. She can argue that by not maintain the fence he had not proven intention to possess the land in question. However, since Grahams factual possession of cultivating the land for him business is established, intention to possess the land is subsequently proven.
2.) Stopping YourMoney mortgages from repossessing
The second issue in regards to the problem is whether or not Teresa can stop YourMoney mortgages from repossessing. In order to do so, edibles estate must be argued by its 3 separate registered titles.
Apple Manor
In regards to apple manor, Teresa has a strong interest in avoiding the repossession of land. Although apple manor was registered solely under Benedetta’s name, Teresa provided equitable improvements to the land to carry out essential, costly repairs on the roof. Teresa can argue on the fact that she has constructive trust over the land. Constructive trusts have been defined in Gissing v Gissing (1971) and work within the assumption that a trustee to a plot of land had entrusted another to act on their behalf in case of death, with the assumption that under their detriment they would acquire a beneficial interest in the land in question. A constructive trust assumes two principles which were restated by Lloyds Bank v Rosset (1991) which can also be understood as the Rosset Test. The test assumes that in order to have beneficial interest in land, there must be common intention and detriment. Regarding Apple Manor. Teresa established an inferred common intention. Although there was no express agreement involved, her conduct regarding substantial payments regarding the roof of Apple manor proved such intention. The next thing Teresa must prove is that she acted in her detriment. In Eves v Eves (1975) that home improvements, such as that of Teresa entitled her of beneficial interest under a constructive trust.
Moreover, Teresa was in actual occupation of the land in question. Under para 2 Sch. 3 of the Land Registration Act (2002) , being in actual occupation is considered an overriding interest. As seen in Williams & Glyns Bank LTD v Boland it was held that beneficial interest could be an actual occupation over-riding interest. It is important to acknowledge in this case, as in the case of Teresa that it is the right of herself as an occupier that bind purchasers and not the occupation itself. In order to stop YourMoney mortgages from repossessing, she must prove that she was both in actual occupation of the land as well as had interest in it. In regards to apple manor, Teresa has a strong case against them since she can prove both both beneficial interest, and actual occupation in land.
Mushroom Cottage
Assuming that mushroom cottage falls within its own registered title, Teresa can argue equitable interest in the land due to her 1/3 contribution to the purchase price of the land. Despite the fact that she is not registered as a proprietor of the land, due to her equitable contribution she is said to have an implied constructive trust. This is confirmed by the Trusts of Land and Appointment of Trustees Act (1996). Section 166 if ToLATA makes clear that equities can bind purchasers of registered land, and accordingly, can be overriding interests. However, the case in question differs to that of Boland case. Since Mushroom Cottage was registered by Both Benedetta and Jacopina, the power of the trustees overreach that of Teresa’s beneficial (equitable) interest in the land. In City of London BS v Flegg the house of Lords held that there was a “crucial difference where a mortgage is executed by 2 trustee’s”. Thus, meaning that a mortgage under such circumstances will be treated as a “proper, authorised transaction”. Although dependancy on the number of trustees being able to overreach that of a beneficiaries interests must be questioned, it was held that there is no reason why overriding interests should give extra protection to registered land.
Therefore, in the case of Mushroom Cottage Teresa’s beneficial interest in land will be overreached by that of the two trustees. Thus, her argument regardless of her beneficial interest will not succeed in court due to the 2 trustee rule.
Blackberry Lodge
The second problem to be addressed is whether Teresa can stop YourMoney mortgages from repossessing BlackBerry Lodge. According to the problem question, Teresa was only aware of Blackberry Lodge being mortgaged and unaware of the rest of the properties. In this case, Teresa can argue presumed undue influence. The action of mortgaging all 3 properties rather than just Blackberry Lodge can be proven to only benefit the party in a fiduciary position – in this case the two trustees Benedetta and Jacopina. Teresa could try and prove because of the familial relationship between her and her daughters, she held both trust and confidence in both of them in order to safe guard her own interests in the land. However, in order to have a stronger claim against them using this principle she would have to prove that she gained no equitable interest in the land in question through the mortgage which has not been made clear.
Thus, in this case Teresa should try and secure 2/3rd of the purchase price that she contributed to BlackBerry Lodge, and she has a legal title over the land. Since, as previously mentioned she has a constructive trust in the land previously determined through the Rosset Test she can further explore the options she can take regarding repossession of the land. In s.14 of ToLATA she can make an application subject to the trust of land relating to a declaration of the nature of her interest in Blackberry lodge. Since there was no express declaration of trust, Teresa can secure her 2/3rds of the purchase price. By making this declaration, she can then use s 36. Administration of Justice Act (1970) that states that “if it appears to the court that in the event of its excersising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage. By claiming s.36 and by establishing her interest in land Teresa can try and extend the mortgage repayments. Thus, possibly extending the repossession of the land.