In order to advise Wan, the principles of law Essay Example

In order to advise Wan, the principles of law Essay Example In order to advise Wan, the principles of law Essay In order to advise Wan, the principles of law Essay Omar wants to cognize whether he can halt Sarah from runing the concern from her belongings and whether he can implement entree rights across her land. He would besides wish to cognize whether he could take a firm stand on the hard-on of a boundary wall and farther, guarantee a part towards the drainage disbursals he has incurred. Omar’s possible rights root from compacts which Natasha entered into with Paul and besides an involvement which may be an easement. First covering with the compacts: A compact is a promise made by title [ 1 ] . When the compacts were originally made, Natasha bore the load of these compacts whilst Paul had the benefit. [ 2 ] As Omar was non secluded to the original promises made by Natasha to Paul, he can merely hold gained their benefit if it passed to him with the land. Common jurisprudence has developed four conditions for the benefit to go through. First, the compact must ‘touch and concern’ the land of the covenantee. The trial here, laid down inSwift Investings[ 3 ],demands that: the compact lacks public-service corporation if separated from the land, must impact its value or quality, and be ‘non-personal’ in nature. Satisfaction of this trial may be contended in visible radiation ofCrest Nicholson[ 4 ] which states that whilst â€Å"the benefit of a †¦covenant must be annexed to place land†¦it can be so annexed for a limited clip ( such as whilst it remains the belongings of the current proprietor [ 5 ] ) .† [ 6 ] However, it seems on balance that the three compacts appear to fulfill this first status. Second, the purpose ( when doing the compact ) for the benefit to run must be evidenced, although by virtuousness of s78 LPA [ 7 ] this can now be inferred. Third, when the compact was made the covenantee must hold held the legal estate in the land. In this instance, Paul was the covenantee when the compacts were made and he was the freehold proprietor of the land to which the compacts relate. Finally, in order to implement the compacts, rubric must hold been derived from under the original covenantee. Omar’s rubric was derived from Paul ( the original covenantee ) . Appare ntly, Omar has the benefit of both positive and restrictive compacts. Sarah will merely bear the load of these rights if it has passed to her with the land. At common jurisprudence the load will non run [ 8 ] , but in equityTulk V Moxhay[ 9 ] well introduced non-statutory land planning [ 10 ] .Tulk V Moxhayis merely applicable to restrictive compacts and turns on the issue of ‘notice’ . The consequence is, for so long as Sarah had notice of the limitation to utilize the land for concern intents, she would hold the load of this compact. The other compacts are both positive in their nature. The House of Lords inRhone V Stephens[ 11 ] â€Å"definitely ruled that, in freehold land, the load of a positive compact can non in equity be enforced against replacements in rubric of the original covenantor† [ 12 ] . Using the fact that â€Å"the original covenantor remains apt on his covenant† [ 13 ] , Omar could potentially seek to implement his rights under the positive compact against Natasha. Of class, it is likely to be more convenient to seek to implement breaches of compact against Sarah as she is readily accessible. In conformity with usual pattern, it is likely that Natasha, in order to avoid liability for future breaches of compact, would seek an insurance from Sarah, yet Sarah may hold disputed this as Natasha had already breached the compact to raise the wall by transcending the clip status. In respect to the payment towards the care of the drainage, the regulation inHalsall V Brizell[ 14 ] should use. This regulation dictates that if the benefit of a compact is to be accepted so the load of the compact must besides be born. The application of this regulation means that as Sarah has the benefit of the drains she will besides hold assumed the load of this compact. Turning so to rede in regard of the two entree issues. First, there is the entree by route from Miskin Court to the North. Second, there is the cutoff which Omar’s household have enjoyed through the fencing. It must be asked whether there is an involvement nowadays with the features of an easement and if so, whether the easement was decently created. An easement is a right over a piece of land for the benefit of another piece of land. It is a proprietary involvement enjoyed by an estate proprietor and is merely accessory to the land.Re Ellenborough Park[ 15 ] gives the features of an easement: There must be both dominant and servient tenements, the involvement must suit the dominant tenement, there must be diverseness in ownership or business and the involvement must be capable of organizing the capable affair of a grant. It appears that the entree rights have the needed features of an easement. The easements have non been created expressly as they were non mentioned in the title of transportation. It would hold been utile for Paul to include an express reserve in the transference of conveyance to Natasha so that he could reserve the usage of the route to the North of Miskin Court. However, upon finding of the facts, it may be possible to reason the implied grant of easement of necessity. Sarah, as the current proprietor of the servient tenement, has the right to procure her land, but should supply Omar with a key. In respect to the cutoff, for an easement to be created by prescription, there must hold been 20 old ages uninterrupted usage, non by force, in secret or with permission. As Omar’s household have been utilizing this for ‘as long as he can remember’ it is possible that an easement would hold been created by prescription and he can implement this right, if necessary, by taking the obstructor which Sarah erected. It appears that Omar can asseverate and implement all of the rights addressed against Sarah, or in the instance of the wall, perchance against Natasha depending upon the facts. Bibliography Legislation Law of Property Act 1925 Land Registration Act 2002 Cases Crest Nicholson Residential ( South ) Ltd V McAllister[ 2004 ] EWCA Civ 410 [ 2004 ] 15 EGCS 105 Halsall V Brizell[ 1957 ] Ch 169 Keppell V Bailey( 1834 ) 2 My A ; K 517 Rhone V Stephens1994 2 AC 310 Re Ellenborough Park[ 1956 ] Ch 131 Swift ( P A ; A ) Investments V Combined English Stores Group[ 1989 ] AC 632 Tulk V Moxhay( 1848 ) 2 Ph 774 Webb V Russell( 1789 ) 3 Tr 393 Articles Conveyancer and Property Lawyer 1994, Nov/Dec Property Law Bulletin 2004, 25 ( 2 ) Text MacKenzie, J.-A. A ; Phillips, M.Textbook on Land Law,( 9Thursdayerectile dysfunction. Oxford University Press 2002 ) 1