Property Rights Evolution and Legal Disputes

QUESTION 2 The first matter for consideration is how the legal and equitable interests in Veldalan were held in 2015 and how these interests have been affected by the events in 2016, 2019 and 2021.

In 2015, when Veldalan was first purchased by Andrew, Barney, Claire, and Diane with all four registered as proprietors, they bought the house as beneficial joint tenants. As all four are registered as proprietors, they have legal interest in the property to possess or use it. Law of Property Act 1925, Section 34 (2) allows legal estate to be vested in a maximum of four individuals. Therefore, all four have legal interests in the property as joint tenants. Joint tenants have the equal rights to the whole property and the principle of jus accrescendi is applicable to the interest so that they cannot dispose of their interest by making a provision in a will. The four unities of title, interest, possession and time, are applicable to joint tenancy which means that wherein each owner legally holds the same interest as the other owners (AG Securities v Vaughan [1990]1 A.C. 417). However, as in this case the joint tenants have unequal contributions in the property, a case may be made out that in 2015 they had legal joint ownership while they were tenants in common of the equitable estate. Generally speaking, equity follows the law, so as to mean that there is an assumption that a person who is a joint tenant of the legal estate is also a joint tenant of the equitable estate (Pettitt v Pettitt [1970] AC 777). In certain circumstances however, this presumption does not hold and the words or conduct of the parties may indicate that they intended to take the equitable estate as tenants in common and not as joint tenants. These circumstances were laid down in Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549, with one of them being unequal contributions to the purchase price. In other words, where the legal proprietors of the property have contributed to the purchase price unequally, it may be give rise to the presumption that they intended to take distinct and proportionate shares in the property depending on their respective contributions. In this situation, Andrew and Claire contributed £100,000 each and Barney and Diane each contributed £50,000 each. Thus, based on the Malayan Credit case principle, it may lead to a presumption that were tenants in common of the equitable estate. Finally, joint ownership of the property leads to legal and equitable interests which require a trust of land under the Law of Property Act 1925, Sections 34 and 36 and under the Trusts of Land and Appointment of Trustees Act 1996, a trust is established where there are two or more legal owners of the land.


In 2019, Andrew’s interest in the land has been passed on to the surviving joint owners because he was killed in an accident. As per the rule of survivorship, his interests have passed on to the surviving joint tenants. However, the joint tenancy is severed by Claire when she took a job in London and sold her interest to Edward. A joint ownership can be severed when a joint tenant acts on his own share; this can happen when he sells the property (First National Securities Ltd v Hegerty [1985] QB 850). Under LPA 1925, Section 36(2), a final and irrevocable unilateral act of alienation of own can lead to the severance of joint tenancy. Therefore, in 2019, Claire’s interest is severed from the joint tenancy and is no longer subject to the rule of survivorship.

With regard to right to ask a court to stop the sale and on the basis that the court could make the order, TOLATA 1996, Section 14, allows a property owner to apply to the court for an order for declaration of the extent of the parties’ individual ownership of the property and for requesting a sale of the property. Therefore, Barney can make such an application for sale of the property. The court will not necessarily make the order for sale and the factors on which such orders may depend may include consideration of the intentions of the joint owners when they purchased the property, the purpose for ownership, and their shares in the ownership of the property (TOLATA 1996, Section 15).

If Veldalan is sold, a buyer may have concerns about the will by Diane in March 2021 leaving all her estate to her fiancée Frank. Therefore, Frank’s beneficial interest in the property may be a matter of concern. However, as Diane’s interest in the property was joint tenancy, therefore, she could not have left her property to Frank by a will as severance of beneficial interest can only be done inter vivos (Gould v Kemp (1834) 39 ER 959). Therefore, the buyer is protected against any claims by Frank to the beneficial interest in the property.

QUESTION 4 With regard to the first matter, which is whether Mary can prevent Helen from using the driveway and/or force her to contribute towards the maintenance of the driveway, the law of easement and covenants can be discussed. The question is whether Helen can be prevented from using the driveway and whether Mary can enforce the covenant of making Helen pay the maintenance.

An easement is a right arising from another property, which permits use of another person's property for the right. Right of way as an easement right is contained in Land Registration Act 2002 and is an overriding interest under Schedule 3. The easement right in this case is given under a registered deed to Gary Kelly providing access to and from the main road and in the same document, Gary covenanted to pay half the cost of maintaining this driveway. As such, easement binds the successive owners of the property and Mary is also bound to allow the right of way. An expressly granted easement is legally required to be registered under Section 27 of Land Registration Act 2002. In this case, it may be assumed that being a registered property, the easement is registered. In this case, Helen cannot be prevented from using the right of way. However, Mary may be able to enforce the payment of maintenance by Helen.

All covenants are not enforceable against the successor to the title of the land. Positive covenants which involve expenditure or performance of some service by the other party do not generally run with the land and cannot be passed to the successor in title. Positive covenants are binding between the original parties to the covenant deed and cannot be passed to the successor in title (Tulk v Moxhay (1848) 2 Ph. 774, 41 E.R. 1143., 1848). In such cases, it may still be possible for Mary to enforce the covenant under the doctrine of mutual benefit and burden, which enforces the burden on the successor to the title under the principle that is one takes the benefit then they should also share the burden. Positive covenants can bind the successor if there should be a mutuality of benefit and burden (Rhone v. Stephens [1994] 2 AC 310, 1994). This was applied in one case against the successor in title because the latter was receiving benefits under the covenant (Halsall v Brizell [1967] Ch 169, 1967). However, there must be a choice provided on whether or not to partake of the benefit (Thamesmead Town Ltd. v. Allotey (2000) 79 P&CR 55, 2000). In this case, Sundip Mapara, the previous owner of Redlands, granted Gary a right of way over a driveway crossing Redlands, providing Gary with access to and from the main road and the latter covenanted that he would pay half the cost of maintaining this driveway. Now, Helen who is the new owner of Westwinds is refusing to contribute to the maintenance of the driveway. This means that she wants the benefit of using the driveway without paying the maintenance. Mary may claim mutuality of benefit and burden to demand that Helen pay the maintenance in order to continue to use the driveway. Discover additional insights on Property Ownership Under LPA 1925 and TOLATA 1996 by navigating to our other resources hub.

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With regard to whether Mary can stop David from blocking the light to her greenhouse, the law of easement can be discussed. In this case, where easements was not registered, the case may be one of implied legal easements as per Wheeldon v Burrows (1879) LR 12 Ch D 31. In case of implied easement, Land Registration Act 2002, Schedule 3, Para 3 is applicable and as per this, the easement holder has to establish the knowledge of purchaser about the existence of the easement; possibility of gaining knowledge of easement through inspection of the property, or exercise of right once in the year preceding the purchase. An overriding interest against the purchaser of the property can be established if any one of these can be proved by Mary. Another option for Mary is to establish easement by prescription, which is created when a freehold landowner uses the right without force, secrecy and without permission and continuously as against another freehold landowner (Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738). As right to light is claimed in this case, the easement right to light comes within the scope of the Prescription Act 1832. Section 3 provides that right of light may be created by prescription if used for more than 20 years without interruption even where there is no deed or writing that established this right. A right established in this manner is a right in rem available against the whole world and entitling the owner to an injunction in case of obstruction (Colls v Home and Colonial Stores [1904] UKHL 1). However, it must also be established that the interference with the right to light leaves insufficient light for normal purposes considering the purposes for which the building was designed (Regan v Paul Properties Ltd [2006] EWCA Civ 1319). In this case, the light is for a greenhouse, which is more than 20 years old because it was erected by Sundip in 1998. The normal purpose for having a greenhouse is to grow plants and vegetables for which light is necessary and without such light, the purpose will not be achieved. In Allen v Greenwood [1980] Ch 119, Buckley LJ has specifically noted that if the building is a greenhouse, then what is adequate light for the building must be measured by reference to its reasonably satisfactory use as a greenhouse. David Billesley acquired this land in 2015 and could have known that there is a greenhouse on the adjoining property which is used for growing plants and vegetables and also prize orchids. Therefore, Mary may make an application for injunction against David to prevent him for adding another storey that will block light to her greenhouse.

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