Land Ownership Dispute Analysis

Introduction

This paper focuses on a case scenario, which will aid in providing answers that would otherwise, remain questionable, if not attended. The case study is about Emily, who co-owns a piece of land with his brother Frank. This is a land, which they both inherited from their father. However, Frank does not have any interest in it, and as such, he has allowed Emily to treat it as her own. To this effect, Emily has a fruit farming business in the land, known as Nether Strathdee. In a bid to expand her business four years ago, Emily purchased a piece of land from Georgina, who is her neighboring farmer and the land was known as Upper Strathdee. Georgina does not trust solicitor and also, for the reason of saving money, they did not involve any legal paperwork for the land sale, rather, they purposed to seal their deal by shaking hands, and thereafter, Emily paid the agreed price. In the Upper Strathdee, Emily planted apple trees and during last year, she had a profitable crop out of it. Georgina also sold a number of barrels that Emily uses in transporting and storing apples. Emily also makes cider, from the apples planted in the Upper Strathdee, and she has sold some of it, whereas others are in the farm store, mixed together with the apples she has gotten from Nether Strathdee. This case has then brought forth several problems, on which the following pieces of advice are sought.

Going by a recent concern, Georgina has become bankrupt and a sequestration has been ensued. Under the land register, her trustee registered title to the Upper Strathdee. In this regard, Emily is unhappy about the whole issue and more unhappy for the fact that the trustee has removed and disposed off her apple trees that she had planted on the Upper Strathdee. The trustee claims the ownership of the apples, as well as the cider that Emily is storing and also demands a compensation of apples of the value of sold apples, which Emily planted on the Upper Strathdee.

Emily and Georgina should have signed a purchase agreement in the form of a legal document, wherefore; the document could bind them whilst it also ought to have been enforceable by law. However, being that they engaged in an oral agreement, it ought to have been legally binding, yet of importance was that they were to put it in material evidence, written, so that if any dispute arises, the court would easily decide its judgement, whilst emphasizing on the parties’ intentions towards the agreement, as well as other policy considerations. Moreover, section 359 (2) of the Insolvency Act 1986 notes that a person is declared guilty of an offence, if, in a year prior to petition, or during the initial period, he received/acquired a property from a bankrupt person. In this case, the person guilty could be knowing, or believing that the bankrupt was not able to pay the money, or in respect of the property, the bankrupt owed money. This Act makes it evident that Emily is not guilty, as she did not know that Georgina was bankrupt a year before she was pronounced bankrupt. Notably, she bought the land in good faith, just as any other ordinary business.

Emily ought to have conducted due diligence on the piece of land, prior to purchasing it from Georgina. In this respect, she ought to have taken all the reasonable steps and measures, prior to executing an agreement in terms of purchasing the property. By conducting due diligence, Emily ought to have assessed all the risks associated with the said property, review all the relevant documents, and ensure that there is no legal encumbrance associated with the property before making the actual purchase. The importance of exercising due diligence is that Emily could have gotten vital information regarding the land, as she could have gone deep into inquiring about its registration at the Land register, to know its legal ownership, in order to make necessary arrangements before buying it. In line with this Insolvency Act 1986, under section 127 and 284 (bankruptcy) make it clear that it is advisable for the buyer’s solicitors to conduct significant and relevant searches prior to exchange of contracts, which would consequently aid in revealing and petition that may be pending. In considering this approach, it is stipulated that in an instance where a petition has been revealed, an opportunity is provided for the purchase to be withdrawn, or an application can be made to the court, in order for the presented petition to be validated Overall, it is significant to note that even with the presentation of the above precaution measures, Emily should apply to the court for a prohibition order, prohibiting the sequestration trustee from interfering with the land. The injunction order, in its prohibitory measure, will forbid the sequestration trustee from further removing and disposing Emily's apple trees that she had planted on the Upper Strathdee. Moreover, this order will hinder the trustee from claiming ownership of the apples, as well as the cider that Emily is storing. Additionally, he will stop demanding for a compensation of the value of the sold apples, thus, preventing him from frustrating Emily further. Notably, if the sequestration trustee disobeys this order, will be regarded as punishable by contempt of the court. It is also significant to note that Emily had purchased the piece of land in good faith and without any form of notice. If she presents this claim to the court, the court will give a listening ear, owing to the fact that she was not aware of the risks associated with the land. She had used the piece of land for a period of 4 years, without any disturbance, until when Georgina was declared bankrupt and her trustee registered title to the Upper Strathdee. In this regard, Georgina ought to take the blame, for not telling Emily about all the issues that surrounded the land.

(b) Harry approaches Emily and claims that the barrels she had bought from Georgina were stolen from him over four years ago and that they were actually his. Emily refuses to give the barrels to him without proof that they were his and as such, Harry removes the barrels at night.

It is significant to again take note of the fact that Emily had bought the land and the barrels from Georgina in good faith and as such, she was not aware that the barrels were stolen. As such, it was right for her not to give them to Harry, as he did not present any evidence that the barrels were his. Moreover, she had been in possession of the barrels for a long period, without any issue risen regarding a stolen barrel, until when Harry approached her. However, it was very wrong for Harry to steal the barrels at night, which then presents the need for Emily to sue Harry for theft. Theft Act (NI) 1969, section 1 (1) stipulates that any individual would be pronounced guilty of theft in an instance where he or she dishonestly appropriates a property that belongs to another individual with the intention of depriving the other individual of it. The three most vital aspects/ elements of theft, in this case, are as follows: First is appropriation; second is property; and the third is belonging to another. On the other hand, the two mens rea aspects are as follows: First, is dishonesty, and second is the intention to permanently deprive another person of the property. It is significant to note that all of the five aspects/elements must be satisfied for Harry to be liable of a theft crime, and whilst considering his case, property was involved, appropriation, barrels belonging to Emily, an aspect of dishonesty and finally he intended to deprive Emily of the barrels. As such, before the court of law, he would appear guilty, unless otherwise. In addition, the Theft Act 1968, section 5 (1), also notes that a property should be regarded as a belonging of someone that has its possession or control over it. In this regard, at the time of appropriation, Emily was the only person in control and possession of the barrels. Similar to this case, is the case of Edwards v Ddin, in which the principle laid was the fact that when the defendant put the petrol in the tank, it belonged to himself only, as there was no any other person in possession of it. As such, he had its control, the propriety right over it and interest. Similar to this, is the case of DPP v Gomez [1993] 4, where the defendant was charged with a theft, which is contrary to the Theft Act 1968, section 1 (1). The judge held that owing to the fact that the goods in question had been sold and the contract was between the shopkeeper and the customer, there was no form of appropriation of a property that belonged to another. In this regard, he pleaded guilty was as such convicted. He then appealed in the appeal court, the criminal division, and his appeal was allowed against conviction.

(c) Frank also re-appears unexpectedly and demands Emily to pay him for using his part of the land, and this includes a share of the profits she had derived from selling the apples she had grown on Nether Strathdee

Before the court, Emily can make an estoppel defense, by stating that his brother Frank allowed her to treat Nether Strathdee effectively as her own, and in turn, the court would stop him from claiming anything. For instance, the court will stop him from making demands for Emily to pay him for using his part of the land, which includes the profits she had derived from selling the apples she had grown on their shared piece of land. This is owing to the fact that Frank initially knew that Emily’s activities on the land could accrue profits, yet he did not make it clear to her before, that he was interested in gaining from those profits later. He ought to have told Emily his intentions earlier on, but being that he did not, he was not supposed to make any demands. The significance of making an estoppel defense before a court of law was noted in the case of Crabb v. Arun, where it was established that equity comes in mitigating the rigors associated with strict law. As such, it prevents an individual from enforcing and also insisting on his or her strict legal rights when it would be inequitable for him or her to do so, owing to the dealings that have taken place between the involved parties. Whilst considering its broad sense, estoppel defense purposes to prevent a party from asserting either a fact or a right that is contrary to the party's past conduct or previous allegations or denials. In this case, Emily having to make an estoppel defense to a lawsuit is right, as it would prevent him from asserting his right, which is contrary to his past conduct. His past conduct, in this case, is that Frank did not have any interest in Nether Strathdee, and as such, he had allowed Emily to treat it as her own. As such, he cannot just re-appear and claim that he demands the profits of Emily’s hard work. Overall, it is significant to note that in a bid to asserting the defense of estoppel, it is necessary that the representations, either consisting of words, conduct, acts, or even omissions of Frank were believed by Emily who should claim the estoppel.

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Conclusion

From the above indications, it is evident that Emily was actually not at fault for having purchased the land from Georgina. However, prior to purchasing the land, she ought to have conducted due diligence on the land. Moreover, the two parties needed to have signed a legal document, in agreement for the sale of the property, rather than just shaking hands, owing to the fact that there was no evidence attached to it. However, it is evident that The Insolvency Act 1986 provides stipulations, which denote that Emily was not actually at fault. On the second question, it is advisable for Emily to sue Harry, owing to the fact that having taken the barrels at night without Emily’s consent was regarded as theft. This is based on the five elements provided in the Theft Act (NI) 1969, section 1 (1), which include the following: First is appropriation, second is property, and third is belonging to another. On the other hand, the two mens rea aspects are as follows: First, is dishonesty, and second is the intention to permanently deprive another person of the property. Finally, it is significant to note that Emily can make an estoppel defense, by stating that his brother Frank allowed her to treat Nether Strathdee effectively as her own. In turn, the court would stop him from making demands for Emily to pay him for using his part of the land, which includes the profits she had derived from selling the apples she had grown on their shared piece of land.

Bibliography

Insolvency Act 1986, section 359 (2)

Insolvency Act, section 284 (bankruptcy)

The theft act 1968, section 1(1)

The Theft Act 1968, section 5(1)

Theft Act (NI) 1969, section 1 (1)

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