LAND LAW

Studying land law involves an understanding and appreciation of a certain

amount of its historical background. The inclusion of a study of the history
of land law is unavoidable because an understanding of the modern law
depends to a certain extent on an understanding of its historical
development. The real purpose of studying land law is two-fold:

(i) it will provide you with an appreciation of the various rights and
liabilities which affects land.

(ii) it provides the essential spring board for anyone who later wishes to
launch into the realm of conveyances.

The Division of Property

Unlike the continental or European systems, which are based on Roman law
and splits property into moveables and immoveables, English law, on the
other hand, divides property into three divisions. Division 1 is realty, division
2 is pure personalty, and division 3 is chattels. The reason for these
divisions is historical.
Realty

Originally, only certain types of property could be specifically recovered,

that is, could be the subject of an action in rem. (Note: An action in rem is
an action against the property itself.) The natural consequence of this is
that it shows the connection between types of property and the rights
accruing from the ownership of such property and the rights that can be
brought in court to recover the loss of the ownership of such property. This
type of property became known as realty. The main characteristics of realty,
which distinguish it from personalty are:

1) Realty could not be the subject of absolute ownership. In England, all

land is owned by the Sovereign and all that a citizen can own is an estate
2) On intestacy prior to 1925, realty passed on to the heirs
3) Wills of realty were not possible under feudal law
4) To recover the realty, you have to go to court to bring a real action
5) Realty is immoveable personalty
Pure Personalty

Originally moveable property such as clothing and furniture could not be

recovered, so if a person is wrongfully disposed of such property, the only
remedy was an action in personam. This type of remedy gives the
wrongdoer, the person who wrongly disposes or deprives you of your
property, a choice. He could either return the goods or retain them and pay
damages for the other party to recover what they have lost. Even today,
this is frequently the result in such circumstances. Though, the equitable
remedy of restitution might be available where the object was of a unique
value and damages would be an inadequate remedy.
Chattels real

This is a hybrid category of property which has, due to its historical

development, connection both with realty and with pure personalty but
which cannot be placed accurately in either of the categories. For our
purposes, the most important property which is placed within this
classification is leasehold property. One famous English author, Blackstone,
in his writings described the category as having “a mongrel amphibious
nature”.

The Nature of Land

The dictionary definition of land is: “land is a solid portion of the earth’s
surface”. Others like economists define land as “all kinds of natural
resources”. In law, however, land is given a specialised meaning. The
famous author and jurist, Coke, stated that land is the legal signification
comprehending any grounds, soil, or earth whatsoever such as meadows,
pastures, woods, waters. He also said that houses and other building
standing on the land are part of the land.

The modern legal concept of land embraces not only the physical surface of
the earth but also building, minerals, etc. on or in it. In Rogers v Longsdon
1967, the Court held that an artificial heap of waste could become part of
the land when grass and trees grow on it. The statutory definition of land is
given in the Law of Property Act 1925 Section 205 (1) (ix). Land includes
land of any tenure, mines and minerals whether or not held apart from the
surface, buildings or part of building and other corporeal hereditaments.
Cuius est solum eius est usque et ad coelum et ad inferos- he who owns
land, owns what is underneath and up to the sky.

The Doctrine of Tenure

In order to understand the doctrine of tenure fully well, it is essential to

know that throughout the development of English land law, the Crown is
regarded as the absolute owner of all land in England. All persons who hold
land in England do so under the absolute ownership of the Crown. In fact,
they are all tenants of the Crown. The term tenure is the term used to
describe how the land is held from the Crown. It denotes the relationship
that exists between the Crown and the tenant.
Classification of Tenures

The basic distinction is between free and unfree tenure.

A. Free Tenure

Free tenure was by far the most advantageous method of land holding from
the point of view of the tenant for two reasons.

- The free tenant had the right to apply to the King’s court for
protection. The unfree tenant did not have such privilege, the right
to apply to the King’s court for protection.
- The free tenant had to perform specific services so that he would
not be asked to perform more onerous tasks by his feudal overlord
when he took possession of the land and he had the right to know
what tasks he should perform. Unlike the free tenant, the unfree
tenant did not know at the onset of his tenancy what obligations he
would have to perform or when he would be asked to do them. He
was like a slave

Free tenure can be divided into two categories:

1. Lay tenure
2. Spiritual tenure

1. Lay Tenure
There are two main types of tenure in this category. The most important
tenure is that of knight service also called military service. This knight
service involves the tenant supplying a stipulated number of soldiers for
forty days in the year to the crown. This type of service was commuted
under the reign of Henry the 3rd to money payment. The money paid by the
tenants could be used by the Crown to hire mercenaries to fight for the
Crown.

The other type of tenure under lay tenure is chivalry, also known as grand
sergeantry. Under this category, the tenant was under an obligation to
provide certain services for the King. For example, he might be called upon
to carry the King’s banner into battle.

Socage tenure- this type of tenure involved the provision of non-military

service for the Crown. The service to be provided under this category is of a
mundane nature. There are three types of socage tenure:

- Common socage: Under this category, the tenant has an obligation

to provide men to perform agricultural service, such as ploughing,
for the King.
- Petty sergeant: This type involved providing small personal services
for the King. This was abolished during the Tudor period.
- Customary socage: Under this category, if the tenant dies intestate
the land descended to the sons equally. The land would not, in other
words, be subject to forfeiture. The land could be disposed of by will
and it could also form the subject of a conveyance.

2. Spiritual Tenure: In spiritual tenure, the King will give land to the Church
but the Church has to be praying for the King in return. The King gives
land to the Church in return for spiritual services.

B. Unfree Tenure

In unfree tenure, one should note the following:

- The services performed are incompatible with the position of free man.
The tenant can be called upon to perform any kind of service and he
has no right to deny.
 - The services are unspecified and there is lack of protection for the
tenant from the King’s court. Anyone could do anything to you. A
tenant with unfree tenure has a position that is tantamount to serfdom;
he is just like a slave.

The position of the tenant under unfree tenure gradually improved. By the
16th century, they could apply to the King’s court for protection.

Reduction of Tenures

In 1290, the Statute Quia Emptores prohibited the creation of new tenure by
anyone except the Crown. The Tenures Abolition Act 1660 converted
tenures in chivalry into common socage and the Law of Property Act 1925
abolished almost all the remaining incidents of free tenures and reduced all
free tenures into one class only namely socage. In modern times, socage is
freehold land. As a result of the development already mentioned, there is
only one feudal tenure left today, namely socage, which is now called
freehold.

Under feudalism, leasehold was not known. It stood outside the purview of
the feudal system. Today there are only two types of tenures today namely
(i) leaseholds and (ii) freeholds (socage). Tenure is the nature of your hand
holding.

Questions

Discuss the importance of land in legal history with particular reference to

Sierra Leone.

Critically discuss the doctrine of tenure. Don’t just say what the tenures are
but boldly give your opinions on the doctrine of tenure

The Doctrine of Estate

The basic concept behind feudalism was that the Crown is the absolute
owner of all land and that doctrine has persisted up to present times. In
other words, the land the citizens or subjects in England get from the Crown
is freehold land but in principle all land is owned by the Crown.
The term estate is used to denote the extent of any one person’s interest in
land. In English land law the emphasis has been placed on possession rather
than ownership. This has become known technically as seisin. (note: discuss
doctrine of seisin)

Classification of Estate
Once the doctrine of estate was developed at the common law, two
separate categories of estate emerged:
1. estate of freehold and
2. estate less than freehold.

A common characteristic of estate of freehold is that they were all of

uncertain duration.

A. Estate of Freehold

Formerly there were three types of freehold estate:

1. Estate in fee simple: This was and still is the largest estate which can be
carved out of the absolute ownership of the Sovereign. It will continue in
existence until as such time the estate owner dies without leaving an
heir. The term ‘fee’ indicates that this is an estate of land which can be
sent to the estate owner’s heir. The term ‘simple’ indicates that the
estate is one of general inheritance. They can be inherited by the general
heirs of the owner irrespective of whether they are ascendants,
descendants or collaterals.

2. Estate in fee tail: This was an interest less than estate in fee simple
because in this case the estate could only descend to specific issues of
the tenant. For example land was granted to A and his male heirs.
Suppose A dies and only leaves female issues, the estate in fee tail which
had been created would be terminated (end) and revert back to the
original grantor.

3. Life estate: This estate can be divided into two categories

a) Life estate to be terminable on the death of the grantee: For example,
‘to A for his life’. The duration of this estate is very limited and
obviously by their nature could not be inherited.
 b) Estate pour autre vie: This was created in the following fashion. There
was a limitation to X for the life of Y. In such a case X is the tenant’s
pour autre vie and Y is the cestique vie. The tenant X pour autre vie
could alienate (transfer the land) during his lifetime and upon his death
an alienee (the person to whom the land is transferred) could hold the
land for the life of the cestique vie (the lifetime of X).

B. Estate less than freehold

These estates were originally distinguished from freehold estate because

the services rendered by the estate owners were not considered to be free
services and also the duration of these estates was fixed.

Tenure is the nature of your interest in the land while estate is the extent of
your interest in the land. Under estate less than freehold, the duration of
the interest in the land was fixed. A tenant of freehold land was considered
to have seisin of the land whereas a tenant of estate less than freehold
merely had possession of the land. The main result of this was that it could
not bring real action for the recovery of the land. Estate less than freehold
can be split into the following categories:

1. Terms of fixed duration: The best example of this is when land is leased
for a specified number of years.

2. Term of years: Under this one, maximum duration can be made certain.
The most frequent example of this is a lease from year to year with no
other provision as to its duration. This can continue indefinitely unless
either the landlord or the tenant takes some steps to determine (end) it.
However, after a year or more, either party can give half a year’s notice
to determine the relationship and thus ensures its determination on a
fixed date. This coupled with the fact that originally the lease was for an
uncertain term of uncertain duration classifies the estate as less than
freehold. The same applies to quarterly, monthly, weekly and other
periodic tenancies.

3. Uncertain period of uncertain duration: These are tenancies at will, which

means the tenancy will continue indefinitely or will be determined by
either party at any time. It is less than freehold.
4. Tenancy at sufferance: This one is very similar in nature to a tenancy of
uncertain period of uncertain duration. It arises where a tenant having
entered upon land under a valid tenancy holds over without the
landlord’s assent or dissent. It is a nebulous tenancy. Such a tenant at
sufferance or at will differs from a trespasser in that his original entry was
lawful.

Doctrine of Seisin

The doctrine of seisin and the doctrine of estate are inseparably linked. The
idea of seisin was first introduced to signify the idea of possession. It was
used to denote possession of both land and chattels. It is difficult to define
seisin satisfactorily in land law. Seisin thus denotes quiet possession of the
land.
By the end of the 15th century, seisin was only used in connection with
freeholds. The reason for this was that by this date the real action that led
to the recovery of land were confined to freeholds. By this time before a
person can bring action for the recovery of land, he had to prove the
following:
- Possession of the land
- That the land was the subject of free tenure
- He was the owner of a freehold estate

If these things were proved then the person is held to be seised of the land.
The importance attached to seisin by English land law was well put by
Holdsworth “the seised has all the rights of an owner. The person deseised
has the right to get seisin by entry or action but until he has got it he has
none of the rights of an owner”

The Device of Uses

Certain features of the common law of tenures and estates were not
conducive either to a flexible system of land law principles or to the
development of a modern system of conyencing of land. The most
important defects were as follows:
1. The heavy emphasis on the doctrine of seisin: This was because of its
importance in real action that is an action to recover land or real property
and the fact that only a person seised of land could be held responsible
for feudal services. This led to two features which were completely alien
to any type of sophisticated system of land transfer.
- All conveyances were to be public and formal to ensure irrefutable
evidence of the seisin of land.
- Seisin was never allowed to lapse if at all possible

2. The importance of feudal services and the principle that they did not
arise when land descended by the terms of a will led to the rule that
there can be no divide of freehold land.

3. The system of feudal services and the burdensome effect they had on the
owner of freehold estate was against any flexible principle of land
holding.

The Lord Chancellor, the highest judicial officer in England, at the time,
intervened and introduced the equitable device of use to avoid the worst
defects of the common law system

The Operation and Advantages of the Doctrine of Uses

In a trust, the ownership of property is vested in one or more persons who

hold it for the benefit of others and these others are called beneficiaries.
The predecessor of the doctrine of trust is the doctrine of use, which has the
same nature as the doctrine of trust. The word use was derived from the
Latin word ‘opus’ and the phrase ‘ad opus’ means on his behalf.

The modern concept of trust avoided many of the defects of the common
law system of land holding. For example, many of the burdensome feudal
incidents due to the lord, that is the work that the tenant has to do for the
lord, were avoided. Also, the rule that wills of freehold estate could not be
made was also avoided.
The device of the use ultimately improved the conveyancing of legal estate.
As the transfer of a use required no formality, the system of the use
gradually helped to revolutionise conveyancing methods.

One of the incidental results of the importance attached to feudal services

was that land could not be transferred to a corporate body because this was
a legal person with perpetual existence and thus there was no chance to
exact the feudal dues which normally came into operation on death. The
restriction was avoided by conveyancing land to the use of corporation.

The Statute of Uses 1535

On the whole because the use avoided many of the defects of feudalism, it
was unpopular with the Crown and the other landowners. They, therefore,
passed the Statute of Uses 1535 to mitigate the effect of the use. Section 1
of the 1535 Act reads “when any person(s) has seised of any hereditaments
to the use, confidence or trust of any other person(s) or any body politic, the
latter person(s) or body politic(s) shall be deemed to have the lawful seisin,
estate and possession of the hereditaments for the like estate as they are in
the use, confidence or trust”. The effect of this section is to make the use
legal estate.

In the 14th Century, in England, the common law was administered in local
courts and in the royal courts. The procedure of the common law produced
delay and became increasingly inadequate in an era of expanding trade and
commerce. The main deficiencies were the restricted nature of the writ
system, procedural complexities and inadequate remedies. As a result of
the rigidities and deficiencies of the common law, many suitors were denied
justice.

The practice, then therefore, grew whereby such suitors would petition the
King, who is the ‘fountain of justice’. In time these petitions were handed
over to the Chancellor, an important member of the King’s Council. This was
the growth of the Chancery division of the High Court in England. In 1474,
the Chancellor issued the first decree in his own name and authority and he
could imprison for contempt those who failed to obey his decrees.

A new range of remedies, equitable remedies, such as injunction and

specific performance was made available. An equitable interest was an
interest in property created and enforced by the Court of Chancery. The
nature of such an interest is significant and its growth is the subject of the
law of trust.

Limitations on Ownership

There may be terms imposed on ownership which will affect the nature of
ownership. This generally takes one of two forms:

a) A conditional fee simple

b) A determinable fee simple

Conditional fee simple: Property may be given to someone but a condition

may be attached which imposes conditions on the enjoyment of the land.
For example: ‘to A on the condition you marry my niece’. However, this is
not always the case as the grantor may decide to forgo the condition
imposed on the grantee. It all depends on the magnanimity of the grantor. A
condition which offends the conscience of mankind or which offends public
policy is void. For example, the above example offends the public policy;
you cannot dictate to a person whom to marry. Also, a condition which is
uncertain is void.

Determinable fee simple: In this case the grantee does not receive the legal
estate with all the consequences of ownership but instead receives an
estate in equity. These rights, that is, the rights of the grantee will last until
the determined event occurs. For example: ‘to A until he marries’.

Leaseholds
The term leasehold or a lease includes various interest and estates. A lease
as generally understood today is a document creating an interest in land for
a fixed period of certain duration usually in consideration of the payment of
rent. It is important to be familiar with the terms used in the law of leases.

A lease is sometimes referred to as a demised. The term tenancy is

normally used for an interest in land lasting for a relatively short period
while a lease is used usually for a more enduring interest. The term lease
and the term of years absolute are virtually synonymous terms today. The
grantor of a lease is known as a lessor and the person to whom the lease is
granted is the lessee. On the grant of a lease, the lessor retains a reversion
(property belongs to the lessor at the expiry of the terms of years) which he
may assign. Similarly the lessee can assign the lease. For example the
lessor can go to the bank and assign the property to the bank for a loan.
Conversely the lessee can also do that.

The Essentials or Characteristics of the Lease

A.

The right to exclusive possession must be given by the lessor to the lessee.

This means that the tenant or lessee must have the exclusive right to
exclude all others from the premises demised (the premises let out). The
right to occupy certain premises for a fixed period cannot be a tenancy if
the person granting the right remains in general control of the property as is
normally the case with rooms in a hotel. A mere lodger has no tenancy. A
tenant must have exclusive possession of the house. See Wells v Kingston
upon Hull Corporation. In this case, a dock was let by a corporation. The
relationship was subject to certain rights of control by the lessor as to the
opening and closing of the dock gate and also that the dock is kept clean
each day. The court held that this was not a lease because the lessor
maintained certain control. The same applies if no defined premises are in
question. Thus there might be a contractual obligation to store goods but
the room in which they are stored may be changed from time to time at the
convenience of the owner of the premise. A case in support of that
proposition is the case of Interwoven Store Company ltd v Hibbard 1936. In
such cases a mere license is created even if the language used in the
document clearly shows that the parties intended it to be lease. But if the
premises are clearly defined, the mere imposition of severe restriction of
the use which can be made of them will not prevent a lease from being
created. The right as to exclusive possession is an important communication
that a tenancy, and not a license, was created. However it now seems in
recent legal development that even a license can confer such a right. Such
rights are called possessor license. However, as in many legal fields, the
nature of such possessory license is not clear.

B.
The requirement as to duration must be satisfied.

The time frame of a lease must be stated in the lease in an unambiguous

language. The lease must be for a fixed duration.

C.

The lease must be created in a proper way.

In order to create a lease that is legal after 1925, it must not only grant a
term of years absolute within the spirit and intendment of Section 1 (1) of
the 1925 Act, it must also be made with the proper formalities. Section 1(1)
of 1925 reduced the number of estates that can be found in land to two and
the number of legal interest to five. The present position of lease being
made with the proper formalities was reached in four ways:

1. At common law a lease could be granted in any way even orally. In

other words you can make a lease by word of mouth.
2. The Statute of Frauds 1677 required that every lease should be in
writing signed by the party creating it or his agent authorised in
writing. In default of this, only a tenancy at will was created.
3. The Real Property Act 1845 required a deed in all cases but leases
which could be created orally were exempted.
4. The Position Since 1925: The provisions of the Statute of Frauds Act
1677 and Real Property Act 1845 were in substance repeated in the
Law of Property Act 1925 subject to certain variations. A lease cannot
create a legal estate unless it is made by deed. The exception is a
lease which:
a) takes effect in possession, that is it starts forthwith
b) lasts for a term not exceeding three years whether or not the lessee
is given power to extend the term
c) at best rent is reasonably obtained without taking a fine

An amicable final agreement or compromise of a fictitious or actual suit

determines the true possession of land or a payment to reduce the rent at
the commencement of the tenancy. If all preconditions are complied with, a
legal estate can be created orally or in writing. Further, it should be noted
that this concession applies only to the grant of an actual lease. A contract
for a lease, for however short a period, will be unenforceable by action
unless evidenced by sufficient writing or part performance.

Equitable Leases

An informal lease is void at law (common law). A lease which did not satisfy
the above requirements was void at law and passed no legal estate.
However, although at law, the lease was ineffective to create any tenancy, a
tenancy at law arrived independently at lease for if the tenant took
possession with the landlord’s consent, a tenancy at will arise and as soon
as rent was paid and accepted the tenancy at will was converted to a yearly
or periodic tenancy depending on the way the rent was paid and on such
terms of the lease that were consistent with periodic tenancy.

Effect as a contract

Although such a lease failed to create any legal estate, it was not entirely
ineffective for it may be treated as a contract to grant the lease agreed on.
A lease is clearly distinct from a contract to grant a lease. The difference is
between ‘I hereby grant you a lease’ and ‘I hereby agree that I will grant
you a lease’. Both law and equity concurred in treating an imperfect lease
as a contract to grant a lease provided it was made for value and was
sufficiently evidenced in writing and as far as equity was concerned,
supported by a sufficient act of part performance.

The attitude of equity was particularly important for under the doctrine of
Parker v Taswell, equity will first treat an imperfect lease as a contract to
grant a lease and then order specific performance of the contract. Once the
lease had been granted in pursuance of the decree of specific performance,
the position of the parties was the same for the future as if the lease was
granted in the first place.

The Doctrine in Walsh v Lonsdale 1882

According to this doctrine, a tenant who takes possession under an

agreement which the court will specifically enforce is deemed to be a tenant
just as though a formal lease has been granted. Such a tenant stands both
as to rights and liabilities as if a lease under seal has been demised to him.
This is an example of the equitable maxim that ‘equity considers done that
which ought to be done.’ It should be noted that before there can be specific
performance, there must be a sufficient memorandum of the agreement in
writing or acts of past performance by the plaintiff unequivocally referring to
the contract.

Remember that a contract for the creation of a term of years (freehold) had
to be evidenced in writing whether this term to be created was as short as
one week or as long as a hundred years. Thus such contract needs written
evidence or sufficient act of part performance before they will be enforced.
Section 40 of the Law of Property Act 1925 only requires written evidence to
make the contract enforceable.

Why could a deed be required to create a lease when mere writing

under hand (written agreement) for a lease could suffice?

The principal reason is that owing to the maxim, ‘where the equities are
equal, the law prevails’, a party with merely written lease or agreement not
under seal would be defeated by the lessor granting the lease by deed to
another who acquired bona fide and for value without notice

Types of Leases and Tenancies

Leases and tenancies will be classified under the five following headings:

1. Leases for a fixed period

a) Certainty of term: A lease may be granted for any period of certain
duration no matter how long or short. Leases for a week or hundred
years are equally valid. Both the commencement and the duration of
the term must either be certain or else be rendered certain before the
lease takes effect.
b) Reversionary Lease: Before 1926 there was no restriction on the length
of time that might elapse before the term began. A lease could be thus
granted in 1950 to commence in 1960. Such a lease is known as a
reversionary lease. The perpetuity rule was not infringed by such a
grant, for the lessee took a vested interest forthwith. It is only the
vesting in possession that is postponed. The perpetuity rule does not
infringe such a grant because the lessee took a vested interest
forthwith. What the lessee did not have was a vesting in possession, as
 he was not going to have possession until 1960. The grant was made
in 1950 but the vesting in possession was postponed until 1960.
However, the grant of a term to take effect more than 21 years from
when the instrument was created is void if made after 1925 at a rent
and the same applies to any contract made after 1925 to create such a
term. It should be noted that this does not affect grants or contract
before 1926 or leases taking effect in equity under a settlement.
c) Interesse Termini: Before 1926 there was a common law rule that a
lessee acquired no actual estate in the land until he had taken
possession during the term of the lease. Until he had possession or
exercised his right to take possession he had a mere interesse termini
(interest in a term). This troublesome doctrine has been abolished in
respect of all leases either before 1926 or after 1926.

The general rule is that a lease for a fixed period automatically determines
at the expiry of the fixed period.

2. Yearly Tenancy

A yearly tenancy is one which continues from year to year indefinitely until
determined by proper notice (involves putting notice in writing)
notwithstanding the death of either party or the assignment of his interest.
Such a tenancy may be created either expressly or by implication. For
example an express grant to A from year to year or as a yearly tenant will
create a yearly tenancy. However, a grant to X for one year and thereafter
from year to year will give X a tenancy for at least two years. He has been
given a definite term of one year followed by a yearly tenancy which can be
determined only at the end of the first year thereof. A yearly tenancy arises
by implication whenever a person occupies land with the owner's consent
and rent measured with reference to a year is paid and accepted. The
limitation to this principle was unless there is sufficient evidence to show
that some other kind of tenancy was intended. A yearly tenancy also arises
when a tenant holds over (remains in possession, that is stays in the
property) at the end of his term and rent is paid and accepted on a yearly
basis.

A yearly tenancy may be determined at such time and by such notice as the
parties agree.
3. Weekly, monthly and other periodic tenancies

4. Tenancies at will: A tenancy at will occurs whenever a tenant with the

consent of the landlord occupies land as a tenant on the terms that either
party may determine the tenancy at any time. A tenancy at will comes to
an end when either party does any act incompatible with the continuance
of the tenancy. The tenancy is also determined if either party dies or
assigns his interest in the land.

5. Tenancy at sufferance: A tenancy at sufferance arises when a tenant

having entered upon land under a valid tenancy holds over without the
landlord’s assent or dissent. Such a tenant differs from a trespasser in
that his original entry was lawful and from a tenancy at will in that his
tenancy exists without the landlord’s assent. No rent as such is payable.
{In its strictest sense what is accepted is compensation referred to as
mesne profit.} But the tenant is liable to pay compensation for his use
and occupation of land.

Determination of Tenancy

A lease or tenancy may come to an end in the following ways:

1. By expiry: A lease or tenancy for a fixed period automatically
determines when the fixed period expires. There are certain
exceptions. In some cases the lease may be renewed.

2. By notice: A lease or tenancy for a fixed period cannot be determined

by notice unless this is expressly agreed upon. A lease for a substantial
term such as 21 years often contains provisions enabling the tenant to
determine it at the end of the seventh or fourteenth year. In which
case the length of the notice required, the time when it is to be given,
and other matters of the kind depend on the terms of the lease. In the
absence of any such provisions, the lease will continue for the full
period. Yearly, monthly, weekly and other periodic tenancies can be
determined by notice. Many periodic tenancies have statutory
protection against eviction.
 3. By Forefeiture: A landlord’s right to forfeit a lease may arise under
three heads:
a) Forfeiture clause: Nearly every lease contains a list of things which
the tenant shall and shall not do and these may be phrased as
conditions or as covenants. If as is normally the case, they are
phrased as covenants, the landlord has no right to forfeit the lease if
they are broken unless the lease contains an express provision for
forfeiture on breach of covenant.
b) Breach of a condition: If the tenant’s obligations are worded as
conditions, the lease can be forfeited
c) Failure to pay rent or service charged

The Distinction between a Lease and a License

It used to be said that exclusive possession of the land is crucial in the

determination of whether one has a license or a lease. In some of the
authorities, the Courts have looked into the intention of the parties to be
informed from all the circumstances. In the case of Barnes v Barratt 1970,
Lord Justice Sachs summarized the attitude of the Court of Appeal as to the
distinctions between a lease and a license. “Whether any given
arrangement does in law produce a tenancy or on the other hand a license
is rarely easy to determine though perhaps not so difficult as it was 20
years ago. In this case as always it is necessary to give weight to the fact
that exclusive possession has been given to the occupier. That, however, is
no longer a factor that is conclusive and indeed appears nowadays to have
diminishing weight. Weight also has to be given to the words of potential
import used by the parties. Again, however, these are not conclusive either
when written or spoken. In the end, it is the substance of the transaction to
which the parties must have regard and when deciding its intended effect it
applies to that substance of the law and not the label of either of the
parties. In this way the law has adapted itself so as to deal with the
complexities of the Rent’s Acts in England without causing patently
unintended injustice to landlords, whilst guarding against improper
avoidance by the latter of the provisions of those Acts”.

Heslop v Burns 1974

In this case, the executors of the will of one Edward Timms claimed
possession of a house in Warner Road, Camberwell where Mr and Mrs Burns
lived. The house was owned by Mr Timms and since 1954 he had allowed
the defendants to live there charging no rent, paying all the outgoings,
visiting the house regularly and treating it as a second home. He orally
promised to leave the house for Mrs Burns but he failed to do so. From
1963, Mr Timms kept some documents and two rent books which purported
to show that the defendants were tenants paying a rent. The rent was never
paid but Mr Timms included a notional payment in his income tax returns.
The question was whether the defendants where tenants at will in which the
case for possession would be barred by the Limitation Act 1939 Section 9
(1) or whether they lived there under a revocable license. The Court held
that the defendants were licensees; there was no intention to create legal
relations between the parties or to give the defendants any right to exclude
Mr Timms from his house.

So in effect social changes in society have had an effect on the law. They
show less and less that the Court will be inclined to infer a tenancy at will
from an exclusive occupation of indefinite duration. In summarising, it is my
considered opinion that the distinction between the lease and a license
remains a difficult issue. But since the decision in the case of Street v
Mountford 1985, there are three main indicators outlined by Lord
Templeman which when applied together will indicate a lease. These
indicators are:
- Exclusive possession
- For a fixed or period time
- In consideration of a premium or periodic payments

In Street v Mountford, the agreement specified that the relationship

between the parties was one of license. Lord Templeman held that the issue
will be determined by the nature of the agreement rather than by the name
giving by the parties to the agreement.

The Significance of the Lease-License Distinction in Law

1. The tenant can assign his interest in land and the lease is enforceable
against the original lessor. A licensee has a personal interest only and
it cannot be assigned.
2. If the lessor transfers his interest in land, then the lease is capable of
binding the transferee. You can register a lease while a license cannot
be registered.
 3. A licensee cannot claim statutory protection for security of tenure
under the Landlord and Tenant Act.
4. Residential tenants under long leases may have the right to purchase
the freehold. This is not available to a licensee.
5. Tenants have the right to enforce repairing and other covenants in the
lease but this right is unavailable to licensee. (Every lease has express
and implied covenants. If they are not expressly stated, you can imply
them in law such as the right to repair the premises (the exterior)).

Easement

Although, land in law is generally owned by one person, it is possible that

others may enjoy rights over a land that is owned by somebody else. These
rights enjoyed by others over that land owned by somebody else are known
as easements. They may also be called servitude (from the latin word
meaning ‘slave’). The rights of easement may consist of a right to use or
restrict the use of the land of another person in some way. For example, a
right of way, a right to light, a right to water flowing through your
neighbour’s land. A wide range of rights have been held to constitute
easements. There is no closed or settled definition of what can form the
subject matter of an easement.

There are four essential characteristics of an easement and if any of these

characteristics are missing, then the right cannot be capable of existing as
an easement. The main characteristic of an easement are laid down in the
following case: Re Ellenborough Park 1956. The owners of Ellenborough Park
and surrounding land sold some of the land to property developers. The
developers built on the land and sold various parts of the land which include
certain rights such as the right to enjoy the land in particular the pleasure
ground, Ellenborough Park. But this was subject to the payment of a fair and
just proportion of the cost, charges, and expenses for keeping the grounds
in good order and condition. The claimant bought the land and tried to
prevent the purchasers of the various plots from enjoying the use of the
park. In that case, the Court held that:

1. There must be a dominant and a servient tenement . The Court also

held that the right must relate to two separate plots of land. The
dominant tenement is the plot of land whose owners enjoys the right
 constituted as an easement. A servient tenement refers to the plot of
land over which the easement is exercised or the land burdened by the
easement. If the easement is the right of way, it is the land that is
crossed that constitutes the servient tenement.

2. The easement must accommodate the dominant tenement. This

means that the right must be for the benefit of the land and not merely
for the benefit of the person in his personal capacity. If the right can be
said to be attached to the land, then it is assumed that it is for its
benefit. The dominant and the servient land do not have to adjoin each
other or have a common boundary but they should be close enough to
establish a connection between the two. There must be an element of
propinquity.

3. The dominant and servient tenement must be owned by different

persons. This means that the dominant and servient land must be
either owned/or occupied by different persons. It has long been
accepted that you cannot have an easement over your own land. It is
possible to have quasi-easement but this is not binding in law until you
have a full easement.

Can a tenant acquire an easement over his landlord’s land? A tenant can
acquire an easement over his landlord’s land because although the
dominant and servient lands are owned by the same person, they are
occupied by different persons. The key factor is that the land is occupied by
different persons.

4. The easement must be capable of forming the subject matter of a

grant. There are several different aspects to these.

a) There must be a capable grantor and grantee- This means only a

person with a proprietary interest can grant an easement over a
land. In other words, the grantor must be legally capable of making
the grant. If a grantor does not have a legal estate in land, then he
cannot grant an easement. The grantee must also be capable of
acquiring an easement. This means that it must be granted to a
definite person or a definite body of persons. There could be no
effective grant to a fluctuating group of persons. For example:
people living in the village, or gypsies, or nomadic tribes.
 b) The right itself must be sufficiently definite- It must not be too vague
or uncertain. It must be clear to the grantee and the grantor.
Because if it is vague or unclear, it will be difficult to determine the
extent of the grant (or whether the easement rights have been
exceeded).

c) The right must be in the nature of an easement. This means that the
right must be in the categories of rights already recognised as
easement or be very similar to such categories.

The law recognises that the categories of an easement are not closed but
nevertheless there must be justification before the Courts are prepared to
admit new types of easement.

Definition of Easement by Dr. Cheshire: “An easement is a privilege without

a profit, that is to say it is a right attached to one particular piece of land
which allows the owner of that land either to use the land of another person
in a particular manner for example walking over someone’s land or
depositing rubbish on it or to restrict its use by that other person to a
particular extent that does not allow him to take any part of its natural
produce or its soil”.

Encumbrances on Land

a) Easement

b) Profits a prendre: This confers the right to take something from the
land of another. For example to fish, to pasture cattle on somebody’s
land, to draw water from a natural stream or a spring. It is an
easement not a profit a prendre, since there is no ownership of natural
water but the right to draw water which is confined in a reservoir or
lake is a profit a prendre because it is a subject of ownership
(somebody owns it).
 c) Restrictive covenants: These differ from easements and profits a
prendre in that they are not jura in rem (they can’t be subject to an
action in court) because they are not enforceable against the
purchaser of the legal estate in the land, over which they operate, who
buys without notice thereof.

Difference between restrictive covenants and easement and profits

1. Restrictive covenants arise only in equity but easements and profits

are known to the common law.

2. Restrictive covenants are only negative in nature. For example, a

covenant not to build whereas easements and profits are almost
always positive in nature and in form.

d) Natural rights: Easement and profits are exercised in alienosolo

denoting thereby land in occupation of another for a substantial
interest and such interest can be one of leasehold. Natural rights may
be vested in a party simply by virtue of his or her ownership or
occupation of his or her land. For example, the right of a riparian owner
and that person has the right to extract from the stream flowing over
the land. Natural rights exist under the general law and no title to them
needs to be shown when they come into operation. Natural rights have
no servient tenement. They cannot be severed from the land to which
they are annexed. For example: a land owner whose land borders the
bank of a river or stream cannot transfer his right to extract water from
the stream.

e) Public Rights of Way: Any member of the public may use the highway
or a public footpath but an improper use thereof may constitute a
trespass to the owner of the highway. The public have only the right to
come and go. The ownership of the highway is on those who own the
land. A public right of way arises through statute or delegation and
acceptance. At common law, the owner of land might dedicate it as a
public way and by using it as such the public could accept the
dedication. Although dedication might be formal, the ordinary method
 is normally informal, that is inferred from its use by the public for a
certain length of time. Open users of a right must have come to the
knowledge of the land owner. The land owner by not interfering with
the use of the land is deemed to have dedicated the way to the public.
In this instance what the land owner has done is given a license for its
use and that license does not amount to users as of right.

For a right of way to be established, the use of a highway by the public must
be uninterrupted by the owner of land. However, the owner can, for
example, once in a year interrupt the right of way so that the public will not
obtain the right of way. There is no fixed length of time for users to indicate
the dedication by the land owner of a right of way in favour of the public.
The owner of the land may deposit a notice stating that some portion of the
land is not for public use or he can also deposit a map in the local council
and that map can contain a statement clearly showing which part of land he
admits that are highway.

How do you grant easement?

Easement can be granted in a number of ways:

1. Express Grant:

A grant is made when one land owner. For example, A creates an easement
over his land in favour of his neighbour, B. If Peter lives next door to Henry
and Henry wants to use Peter's garden as a shortcut to the woods at the
back of the garden, Peter must formally grant Henry an easement. This
easement must be created by deed as the right of way is an interest in land.
If the document used were not in the form of a deed, then only an equitable
easement would be created. If a formal grant is not made, the law may
imply an easement but within strict rules.

A reservation arises when one land owner transfers part of his land to
another but keeps or reserves for himself a right to use part of the land he
has sold. For example, if Peter has a huge garden which he then sells to
Henry when the house is sold to Henry, Peter must expressly agree with him
that he must continue to use a shortcut which runs to Peter's house through
Henry's new garden.

The courts have always viewed reservation with suspicion because the
vendor is trying to reserve right over the land he has sold. He's trying to
hold rights over the land back from the purchaser for himself. The purchaser
does not know the land as well as the seller so the purchaser could be said
to be at a disadvantage. The overall principle here is that the seller must
not derogate from his conveyance. This principle prevents the seller from
certain rights which have not been expressly reserved except in very limited
circumstances and these circumstances are in the case of necessity or
intended easement.

2. Implied Grants:

Sometimes the grant of an easement will be implied or simply inferred in

favour of a purchaser of land. These easements will take effect as legal
easements. It is important to see that the right that can be implied into the
transfer. It must be capable of existing as an easement under the conditions
in Re Ellenborough Park. Easement by implied grants can arise in the
following ways:

a) Necessity:

Easement of necessity usually arises where the land will be landlocked

without the right. The court will always imply an easement in these
circumstances. The land must be genuinely landlocked. If Rodney develops
his garden and builds two houses which are then bought by Charles and
Karina, they will be concerned as to how they are to gain access to and from
their properties. If there is no mention of access in the conveyance, and the
only way Charles and Karina can access their house is by using Rodney’s
drive, the court will not allow Charles and Karina to be landlocked. Instead
they will imply into the transfer, the right of access over Rodney’s land. The
easement of necessity is strictly controlled. The dominant tenement must
have no access at all. It is not enough to show that there is a route that is
inconvenient or a much longer way round. However, the route must be safe.
There is no question of denying such a right where the alternative route will
be dangerous such as along the edge of a cliff.
 b) Intended Easement:

Easement may be implied in favour of a transferee, in order to give effect to

the common intention of the parties. The law is generally very generous in
cases of intended easement than in cases of necessity. There are two
circumstances where an easement of common intention will be implied:

1. It is necessary for the enjoyment of a right that has been expressly

granted

2. If it can be implied from the circumstances in which the grant of way

is given. This easement has been described as such easements as
will be necessary to give effect to the common intention of the
parties.

c) The Rule in Wheeldon v Burrows 1879:

This category of implied easement is much more significant than easement

of necessity and intended easement. It can only apply to grant of easement
and cannot apply to reservations. The rule will apply where land is
subdivided into two or more plots and sold to a purchaser. The purchaser
can claim the benefit of any right in the nature of easement enjoyed by the
seller before the sale. These rights are referred to as quasi-easement. The
purchaser will now own the dominant of land. The parcel of land bearing the
burden of the easement will be referred to as the servient land and will be
retained by the seller. The rule is that when a vendor sells off part of his
land, the purchaser will acquire through implication all those continuous and
apparent quasi-easements which are necessary to the reasonable
enjoyment of the property granted and which have been and are at the time
of the grant used by the owners of the entirety (the whole property) for the
benefit of the part granted.

The rule is based upon the rule against derogation from the grant. You
cannot renege. The rule therefore concerns so-called quasi-easements. In
other words, the rights which the owner previously exercises over the land
he retains for the benefit of the part he has disposed of. These rights can be
elevated to proper easements either legal or equitable on the dealing with
the quasi dominant tenement.

The conditions necessary for the creation of a Wheeldon v Burrows

easement are:

1. There must be common ownership and occupation of the entirety of

the land prior to the rule being triggered. One without the other is
insufficient.

2. The quasi dominant tenement must be dealt with. For example, sold
or leased or acquired by will.

3. The rule only applies to implied grant and cannot be relied upon to
justify an implied reservation.

4. The right must be continuous and apparent. Continuous appears to

mean permanent. That is the right must be regularly exercised.
Apparent implies that there must be discernible trace of the right in
the land itself which must, at the very least, be one that will be
revealed by careful inspection of the land. The right must be
reasonably necessary for the enjoyment of the land. It has never
been authoritatively established whether this reference is an
alternative to the right being continuous and apparent or whether
both conditions have to be satisfied.

5. The right must have been used by the common owner up to the time
of the grant. Wheeldon v Burrows does not operate to resurrect past
rights.

6. There must be no express contracting out of the operation of the

rule

d) Section 62 of the Law of Property Act 1925:

According to Sec 62 (1), ‘a conveyance of land shall be deemed to include

all buildings, erections, fences, waterways, etc., easement appertaining or
reputed to be appertaining to the land. In the case of Wright v Macadai
1949, the tenant gained the right to store coal in the shed of her landlord
after the lease was renewed. Prior to the renewal of the lease she had a
license which means there was no conveyance. The new lease was a
conveyance of a legal estate in land, so the previous license she had,
became an easement implied under Section 62.

Concurrent Interest

An individual can own land on his own and that ownership is ownership in
severalty. As opposed to that, you can have ownership owned by several
people and that ownership is ownership in community and that is co-
ownership. The distinction between ownership in severalty (that is simple or
individual ownership) and ownership in community (co-ownership) has been
summed up by Cheshire as follows: “the owner of an interest in land may be
entitled in possession either alone or in conjunction with other persons and
in both cases he may be entitled to take possession now or at some time in
the future. If he is entitled in his own right without having any other person
joined with him, in point of interest he is said to hold in severalty. But where
he and other persons have simultaneous interest, they are said to have
concurrent interest.”

Concurrent Ownership

Under the law before 1926, concurrent ownership took one of the following
forms:

a) Joint tenancy

b) Tenancy in common

c) Co-parcenary

d) Tenancy by entireties

Joint Tenancy:

A joint tenancy arises over the common law when there is a grant to two or
more persons without any indication from the words used in the grant that
they are to take distinct shares. In other words, where the grant indicates
an intention that the grantees shall hold as co-tenants one and the same
identical estates. Before a joint tenancy can exist, it is essential that the
four unities are present. They are as follows:

1. Unity of Title: All the grantees can claim under the same instrument or
the same act

2. Unity of Time: At common law, the estate of all the tenants had to
come into being at the same instance. Exceptions to these are:

- Where the estate were created by use or trust

- Where the estate were created by way of executor devised by will

3. Unity of Possession: Each tenant is seised or possessed of the whole of

each part of the property

4. Unity of Interest: Each joint tenant must have the same estate and
interest in the land. Thus if one of the co-owners is a lease-holder and
the other a free-holder, there can be no joint tenancy because the co-
owners will not have the same estate in the land.

Doctrine of Survivorship

The doctrine of survivorship is the clearest distinguishing characteristic of

the joint tenancy as compared with the tenancy in common. The right of
survivorship means, for example wherein A, B and C own land as joint
tenants, if A dies, the estate exclusively vests on B and C. That is when A
dies, B and C are the survivors. The right of survivorship can only be
overridden by a disposition operating inter vivos. For example, in the case
of A, B and C above, wherein A before he dies (while he is still living)
transfers the right of survivorship to D (another person).The right of
survivorship operates at the moment of death. A deceased joint tenant
cannot dispose of his estate by his will nor does it pass intestate (without a
will). The will or intestacy takes effect immediately after death. The
following should be noted

1. The common law favours the doctrine of survivorship as the feudal

overlord. The feudal lord favoured survivorship because it favoured
feudal views
 2. From the point of view of conveyancing, a joint tenancy was preferable
because in the cause of tenancy in common, the separate titles of all
the tenants would have to be investigated. Under a joint tenancy,
however, they only have to investigate a joint tenancy.

3. Equity looks with disfavour on joint tenancy because of the doctrine of

survivorship because equity is equality.

Creation of a Joint Tenancy

At common law, where land was conveyed to two or more persons, a joint
tenancy will be created. Unless, either words of severance were used or one
of the four entities were absent. In equity, however, there is a strong
leaning in favour of the tenancy in common such as:

(i) Where land is mortgaged to two or more joint tenants in equity as

tenants in common whether they advanced the money in equal or
unequal shares. For example in the case of A, B and C who want to
buy a land of about Le 2,000,000 and A and B each deposit Le
400.000 but C deposits Le 200,000, the land is said to belong them
in equity as tenants in common.

(ii) Where land is conveyed to two or more purchasers jointly it belongs

to them in equity even if they advanced the purchase money in
unequal shares. For example A pays 2000 and B pays 1000, A is in
equity an owner of 2/3 of the property and B is 1/3 of the property
ad they are both.

(iii) Where land is purchased by partners, equity will regard them as

holding the land as tenants in common.

(iv) Where land is conveyed to two or more as trustees, to hold to the

use (for the benefit) of two or more, it will confer upon the latter
(trustees) as tenants in common though it is not expressed in their
favour.
Determination of a Joint Tenancy

a) By converting it to a tenancy in common.

You convert a joint tenancy into a tenancy in common

(I) By Merger: where a reversion or a remainder in severalty

expectant on a joint tenancy of an estate or less duration
becomes vested in one of the joint tenant. For example to A, B
and C for life, remainder to X in fee simple. If A acquires X’s
remainder, it becomes tenancy in common for life for B and C who
become joint tenants for their whole lives. On the death of the
survivor of B and C, A has the fee simple absolute. Whether he is
alive or death is immaterial for if dead it will pass under his will or
intestacy

(II) By Severance: where the share of a joint tenant becomes vested

in a stranger or in one or two more continuing joint tenants.
Provided such vesting takes place inter vivos, A, B and C are joint
tenants in fee simple. For example, A conveys his interest to X a
stranger, X becomes a tenant in common of a third of the
property. B and C remain joint tenants in the remaining two-
thirds.

b) By converting the ownership direct into severalty:

This arises in the following ways:

(i) The vesting of all the shares in all surviving joint tenants

(ii) One joint tenant releases his shares to the other where there are
only two of them.

(iii) By use of the principle of partition. By this principle, there will be

a physical division of the property into shares, each tenant being
allotted a specific portion. In England, there is an Act called the
Partition Act 1868. According to the Act, powers are given to the
Court to sell the property in lieu of partitioning. For example, the
 Court may order a sale where by the reason of the nature of the
property or number of parties, a sale will be more beneficial.

Beneficial Joint Tenancy or Tenancy in Common

The principle is co-owners who contributed to the purchase money or price

are presumed to own the property as beneficial tenants in common.

Bull v Bull

In the case of Bull v Bull (1955), the plaintiff and his mother jointly
purchased a house for the two of them. The property was conveyed into the
plaintiff’s name as he had contributed a larger portion of the purchase price.
The plaintiff subsequently got married and differences occurred between
the mother and the plaintiff’s wife. The plaintiff gave his mother notice to
quit and applied to the court for possession of the house. The plaintiff and
mother where equitable tenants in common even though they had
contributed to the purchase price in unequal share. The Court held that they
were in tenants in common even though they had contributed to the
purchase price in unequal shares. The Court also held that they were both
entitled to possession of the house and neither was entitled to evict the
other.

Stack v Dowden

Another case is Stack v Dowden (2007). In this case Miss D and Mr. S
bought a house at their family home for £190,000 out of which Miss D
provided £58,000 from her savings and £67,000 from the sale of a property
which she had owned. The balance of the purchase money was by way of a
mortgage. The house was purchased in their joint names but contained no
declaration of trust. By the time they had purchased the house, Miss D and
Mr. S had been living together in the house for 18 years and had 4 children.
Their relationship subsequently broke down and S obtained a declaration
that the house was held for them as beneficial tenants in common in equal
shares with an order for the sale of a property. D appealed against the order
and the Court held that the parties were beneficial joint tenants. The Court
also held that the onus was on the claimant to show that the parties
intended to hold the beneficial ownership as tenants in common. In this
case also the Court held that even though they had cohabited for a long
time, they had their financial affairs separate, which according to the Court
was a strong indication that they did not intend to hold the house joint
tenants. Accordingly, they held the beneficial ownership as tenants in
common and therefore Miss D was entitled to a higher share for the house.

Please note that in the case of married couples, the Court has sometimes
reached the conclusion that even though there contribution to the purchase
price was unequal, a joint tenancy can be inferred. However, as in clear in
the case of Stack v Dowden, this is dependent on the facts and
circumstances of each case.

Lake v Craddock 1732

The case involved five individuals who purchased some waterlogged land
from the Commissioner of Sewers. The property was conveyed to them as
legal joint tenants. They intended to drain the land and then sell it for
property. A dispute, however, arose and they went to Court. The Court held
that the parties held the property as tenants in common in equity as they
had contributed to the purchase price in unequal shares and that the
doctrine of survivorship or the ius accrescendi was inconsistent with the
commercial enterprise undertaken by the parties and if the parties had
intended to hold the property as joint tenants then the Court must give
effect to their intentions.

Severance of a Beneficial Joint Tenancy or Tenancy in Common

a) Severance by Notice in Writing under Section 36(2) of the Law of

Property Act 1925

The notice must show a clear intention to sever immediately. In the case of
Harris v Goddard 1983, Harris and his wife, Goddard, were joint tenants of
their matrimonial home. In 1979, the marriage broke down irretrievably and
Harris’ wife petitioned for divorce. The petition contained a prayer for
property adjustment orders. Harris was injured in a car accident three day
before the hearing of the divorce petition and died about 5 weeks later. The
plaintiffs who were executors of Harris’ estate sought a declaration that the
equitable joint tenancy between Mr. Harris and wife had been severed prior
to his death, thereby creating an equitable tenancy in common in equal
shares. The question arose as to whether the prayer in the divorce petition
amounted to a notice in writing for the purpose of Section 36(2) of the Law
of Property Act 1925. The Court held that a notice in writing for the purpose
of Section 36(2) of the LPA had to evince an intention to sever immediately.
The prayer in the petition did no more than to ask the Court to consider at
some future times whether to exercise its jurisdiction under the Matrimonial
Act 1973. Therefore this was sufficient to amount to notice in writing of the
intention to sever the equitable joint tenancy. The wife was entitled to the
whole of the proceeds of sale of the former matrimonial home.

Re 88 Berkeley Road (1971)

In this case the plaintiff and the deceased were joint tenants of a property,
88 Berkeley Road. The deceased’s solicitors sent a notice in writing to the
plaintiff giving notice of the deceases intention to sever the equitable joint
tenancy. When the notice arrived at the address by recorded delivery, the
plaintiff was not there and the deceased acknowledged receipt of the
notice. Upon the deceased’s debt, the plaintiff claimed to be entitled to the
property by reason of survivorship, ius accrescendi. The Court held that as
the notice was validly served on the plaintiff in accordance with the LPA
1925. Therefore, according to the Court, the equitable joint tenancy had
been severed.

b) Section 36(2) of the LPA in addition to providing notice in writing also

allows the joint tenant to do other sort of things as would have been
effectual to sever the tenancy in equity:

In the case of Re Dennis 1995, a bankruptcy case, a husband and wife were
the beneficial joint tenants of two properties. The husband committed an
act of bankruptcy in 1982. In February 1983, the wife died and in her will
she left the property to her two children. A receiver order was made in May
1983 and the husband was adjudicated a bankrupt in November 1983. The
trustee in bankruptcy sought a declaration as to the beneficial ownership of
the properties. The Court held that the title of the trustee in bankruptcy
goes back to the date of the husband’s act of bankruptcy. The Court held
that the husband’s act of bankruptcy in September 1982 had severed the
beneficial joint tenancy. Therefore, the wife’s half share in the properties
passed under the terms of her will. A joint tenancy in equity may be severed
by mutual agreement.

Mortgage

A mortgage is a conveyance of land or other property for the purpose of

securing the carrying out of an obligation usually the payment of a loan.

Note the following terminologies:

a) The mortgagor- this is the person who charges his property with the
repayment of a loan

b) The mortgagee- this is the person who lends the money on the security
of the land and who acquires an interest in the land.

c) The mortgage debt – this is the debt for which the security is set up.

The great advantage of a loan secured by mortgage of land is that if the

mortgagor goes bankrupt before the mortgage debt is paid off, the
mortgagee will be entitled to obtain his loan out of the land charged in
priority to the unsecured creditors in bankruptcy proceedings.

Distinguishing a mortgage from other transactions

It is important to distinguish or to identify a mortgage as opposed to certain

other similar transactions.

a) A Pledge: In this transaction, possession of property is handed over in

return for a loan but ownership does not pass. In common law, there is
an implied power of sale if the loan is not paid off in the stipulated
time.

b) A Lien

(i) Common Law Lien: This is the right of certain persons to withhold
delivery of possession until the payment of the debts owed to him
is paid off. For example, if a van driver agreed to carry furniture
for a family moving to another house, he will have a lien over that
 furniture for all carriage debts owed to him by the owner of that
furniture until they are paid off.

(ii) Equitable Lien: This is similar in effect to an equitable charge and

is not based on possession. It arises when the vendor conveys the
land to a purchaser before he has been paid. It becomes a title by
operation of law to an equitable lien of the land for the amount of
the unpaid purchase money, which he can enforce by sale under
the direction of the Courts.

History of Mortgages

Under the early common law, a mortgage was in the

a) The Vivum Vadicum (Living Pledge): The lender enters into possession
takes possession of the land, collects rents and profits accrued from
the land in discharge of the loan and the interest thereto.

b) The Mortuum Vadicum (Dead Pledge): In this kind of mortgage, the

agreement is that the lender should collect the rents and profits
accruing from the land only in discharge of the interest; the loan
remains outstanding.

Modern Classification of Mortgages

Under the LPA (1925), two types of mortgages can be created.

a) Legal mortgages: Prior to 1925, legal mortgages were created by

deed, transferring the whole estate of the mortgagor to the mortgagee in
fee simple subject to a proviso for redemption. In rare cases, a mortgagor
if entitled to a fee simple used to grant the mortgagee a long term, say
1000 years subject to redemption. The LPA 1925, Section 85(1) has laid
down two methods for creating this type of mortgage.

1. The first method is a demise for a term of years absolute to the

mortgagee, subject to a proviso for redemption by the mortgagor. If a
mortgage is now made in the old form of a conveyance of a fee simple
to the mortgagee, the 1925 Act provides that it shall operate as a lease
of the land for 3000 years without impeachment for waste subject to
 redemption. It is important that one appreciates that by this method,
the mortgagor and the mortgagee obtain legal estate. In other words,
the mortgagor has the freehold reversionary estate and the mortgagee
has the term of years absolute.

For example, X is the owner of Murray town and he makes the following
mortgages. He mortgages each to Y by way of demise for a term of years
absolute. He creates a second mortgage in favour of Z by way of demise for
a term of years absolute, in this case, 3000 years +1, subject to Y. In this
example, X holds the freehold reversionary estate in Freetown which is a
legal estate, owes a term of years absolute and the same applies to the
estate held by Z. However, one should note that Z gets 3000 years + 1,
according to Section 85(2) of the LPA, second and subsequent mortgages
each take one day longer than the term of standing in the preceding
mortgage.

2. The second method is a charge by way of legal mortgage by deed. The

effect of this method is to give the charge, the same legal protection as if
the mortgage is by way of a lease for 300 years. See Section 87of the
LPA. The advantage of this form is its brevity and the fact that it is always
appropriate to the mortgage of leaseholds and so provides a method of
creating a mortgage where the property given as a security comprises
both freeholds and leaseholds.

b) Legal Mortgage of leaseholds

[Link] Old Form: Prior to 1926, a mortgage of leasehold land could be

created in either of two ways by assignment of the remainder of the
mortgagor’s term to the mortgagee subject to the proviso for redemption
or by granting to the mortgagee a sub-lease, say the remainder of the
term less than 3 days. The disadvantage of the assignment is that the
covenant will bind the mortgagee as far as it touched and concerned the
land.
[Link] Form: Section 86(1) of the LPA provides for the modern form.