The court in Moore v Regents of the University of California defines property as real, personal, and everything else that a person can own. Therefore, property is divided into two categories, real and personal property. From our given fact pattern, a case in point deals with land classified as real property. There are various property rights, including ownership, which is the highest form of ownership, possession, and security interest.
The doctrine of estate is a doctrine that seeks to clarify the nature of the bundle of rights owners of land could exercise. Under this doctrine, an owner of the land is entitled to possession of the land. Additionally, it was the doctrine of tenure that clearly outlined that a landowner owned a bundle of rights regarding the land but not the land itself. The issue arising from this scenario is how Jash, Lola, Bristol Bank plc, Jane and Freddy, and Pete can acquire interests in their respective estates. Additionally, a case in point also addresses the question of whether they need to be protected by registration of the interests. To establish this, it is important to note that registered land is land registered under the Land Registration Act. The right to ownership means that an owner has a residuary right to the thing owned. Knapp v Knapp adds that the general right of ownership includes exclusive enjoyment, a right to destroy, alter, alienate, and recover possession and maintain the property. Possession is prima facie evidence of ownership of property.
Under the Torrens system, property owners can transfer ownership through sale, succession, creation of an express trust, and gift another. The Torrens system has fundamental principles: the mirror principle, the insurance principle, and the curtain principle. The Torrens system’s mirror principle seeks to protect third parties who are victims of fraud or some other irregularity. Under this principle, a third party who buys land in good faith and full reliance on the registered title could be successful if he proves that the party who sold the land to him had his name properly registered in the title document. Therefore, the original owner of the land is entitled to compensation for the misdeeds of the fraudulent vendor. The insurance principle states that the government ought to compensate persons who suffer losses caused by the system. The mirror principle outlines that a bona fide purchaser is not affected by a defect in the registered proprietor’s chain of title. The Torrens registration of title removes the necessity of investigating the chain of title. It does so by establishing a maintaining a proper record of existing facts relating to the parcel from time to time. The Torrens system introduced dishonesty as a requirement that ought to be proven in fraud cases. In Friedman v BarrettFraud under the Torrens system was very narrow, thus need to prove dishonesty.
The registrar must issue a certificate of the title containing the indefeasibility title for a lot if requested in writing by the registered owner. An instrument does not transfer or create interest at law until it is registered. An unregistered interest is enforceable only between the parties to the contract and not to third parties. Abigail v Lapin establishes that the execution of an instrument that can be registered gives rise to an equitable interest. Barry v Heider proved that a contract underlying an unregistered instrument gives rise to an equitable interest. Indefeasibility of a title is the shield that wards off all attacks on a title. Exceptions to indefeasibility include failure to cancel prior certificate of title, adverse possession, earlier title, equity, short lease error in boundaries, and omitted easement. The court in National Provincial Bank v Ainsworth laid out characteristics of property. Definability, identifiability, assignability, and durability constitute such characteristics.
From the fact pattern, Josh purchased Lavender Cottage in 2010. The cottage had a barn that was also part of the property. Five years later, Josh married Lola, who begun helping him pay out the mortgage. A few years later, he sold part of the land to a couple Jane and Freddy, who intended to build a home on the property in question. The two couples agreed with their solicitors. One condition in the agreement was that there be an access point enough for pedestrians, and cars only would be included. Arguably, this condition was so critical and important that Jash would not have agreed to sell the property to the couple. On the other hand, the couple agreed with the terms of the agreement, and a deal was therefore struck between the parties. Jash also agreed to rent the barn to Pete for two years. Pete intended to use it to store farm machinery at a rate of 1000 per month. Based on the facts given, Jash is the original proprietor of the land, which became or would become his after the completion of the mortgage. A proprietor of land can transfer ownership in several ways. Among the listed grounds that perfectly fit the present case is through a sale. Once the agreement and the terms of the agreement have been concluded, the part of the couple’s property should be registered under their name. One advantage of registration is that it gives the registered proprietor an indefeasible title to the land.
An interest in land is the legal right that a person has over, under, or concerning a certain parcel of land. Notably, not all interests in land result in ownership. For instance, a lease is an interest-based on possession and does not necessarily have to include ownership. An easement is also another interest in a land free from ownership. A mortgage and profits aprendre are also forms of interests inland. The thing with interest in land is that it is attached to the land. It is not affected by change of ownership from one party to another. What matters most is the land’s existence in question as long as the land exists; the land’s interest also goes along with the land.
Jash acquired the land through a mortgage. Therefore, the interest attached to the land in question is that of a mortgage. A mortgage should also be registered as well. The advantage of registering a mortgage is that it helps other buyers to identify homes under mortgages and those not under mortgages when buying property.
Josh had insisted that there should be a right of passage enough to fit pedestrians and cars. This is also referred to as an easement. An easement is defined as a legal right that arises in respect of certain land. The legal right includes benefitting another person who is not an owner of the land in a particular manner. The land where the easement is created is referred to as the burdened land. An easement owner is a person who benefits from the easement. Normally, an easement owner needs not to possess the land ownership, but that does not stop him from enjoying the benefits of the land. An easement is also referred to as a right of way. A legal easement should be registered against the dominant land and also the servient land. Where easements are not registered, it might not be easy to prove the existence of the easement owner’s right of passage. In the present case, Jash is the easement owner. Having sold the land to Freddy and Jane, his rights to ownership of the land seized. He is, therefore, enjoying the rights that arise from another person’s land. Additionally, an easement owner has no right to occupy the burdened land. He feels that the land owner is violating his right of way; he should take relevant steps to ensure that he continues to enjoy his right adequately.
The arrangement between Jash and Pete is a lease agreement. A lease agreement is basically a contract between two parties, the lessor and the lessee, where the lessee agrees to pay a certain amount of money to the lessor for a fixed period of time. During the lease agreement tenure, the lessee acquires the right to possession and enjoys this right against all other persons, including the lessor. Based on the definition of what constitutes a lease agreement, as earlier stated, the contract between Jash and Pete had a fixed time frame, which was 2 years. The amount to be paid was 1000 per month. A lease may either be registered or unregistered. The advantage of having a lease registered is that the lessor can exercise his right to possession of the leased property upon the lessee’s default. In the present case, Jash would repossess his property and further institute legal proceedings against Pete for breach of contract.
BIBLIOGRAPHY
Statutes
Land Registration Act, 2002.
Cases
Abigail v Lapin (1934) AC 419.
Barry v Heider (1914) HCA 79-19 CLR 197.
Freidman v Barrett (1962) QD R 498.
Knapp v Knapp (1944) SASR 257.
Moore v Regents of University of California (1990) C513755.
National Provincial Bank v Ainsworth (1965) A.C. 1175.
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