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Section 1

Introduction

Land law is defined as a set of rules which help govern land along with everything that is attached thereto, including buildings and trees. People who are engaged in this particular field have the task to either defend or claim with respect to the land related issues such as boundary issues and rights of way. Hence, it has often been observed that these cases involve private individuals and land owners or government bodies. Contextually, Zak has been threatened by Harewood Bank stating that they would take possession of his house if he does not pay his mortgage dues. The objective of the case is to discuss the rights and remedies that the Harewood Bank possesses to cease Zak’s house and the steps that are required to be followed for initiating the legal rights.

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Discussion

Rights and Remedies

Primary mortgage is protected against the property by the first charge against it. For instance, a mortgage is considered to be private when it is used for purchasing a home. The holder with respect to the first charge including banks has the lawful right to make the first call against the property. The holder relating to the second charge has the right to make a legal call with respect to the property in situations, when the borrower of the mortgage fails to make repayments. This can be done only after all the liabilities are settled to the holder. Hence, referring to this case, it can be inferred that Harewood Bank has every right to the cease the house of Zak if he fails to pay mortgage dues.

The lender, which in this case is Harewood bank, can take the action to the court for taking the possession of Zak’s house. It should hence be noted that the lender should follow and take the matter to the court with complete adherence to the Mortgage Conduct of Business (MCOB) rules that have been implemented by the Financial Conduct Authority (FCA). In the case Thakker & another v Northern Rock plc, the High Court confirmed that the failure of the lender to comply with the MCOB does not affect the proceedings to cease residential property. In this particular case, Mr and Mrs. Thakker borrowed £242,000 from Northern Rock. Mr. and Mrs. Thakker were also found to have borrowed a sum of £259,000 from a third party, amounting to a total amount of £585,000. The bank brought the case to the court for repossessing their property. The bank decision went in favour of Northern Rock.

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There are five lawful remedies in Wales and England, which are set out by the Law of Property Act of 1925, which involves various course of actions that are given to the lenders relating to the borrowers. The legal remedies consist of sue of possessions, appoint a receiver and exercise the power of sales along with lenders charging the borrower on personal agreement and foreclosure. Referring to the case study, Harewood Bank has threatened Zak to possess his house. Therefore, the bank can sue Zak for not paying his mortgage dues. In order to take the possession of the borrower’s property, Harewood Bank can file an application to the court for the purpose of obtaining possession order. Therefore, the lenders also prepare themselves for the court hearings. They can also provide evidence on the matter that they allow the borrower Zak every chance to bring his account to order. Under the MCOB, the banks need to confirm that the possession of the property will only be used as a last resort. Subsequently, the court can select one of the three actions, which will allow Harewood Bank the absolute possession order and permit the lender to take possession of the property within 28 days.

Once, the possession order has been granted, the lender, which in this is Harewood Bank can carry on taking possession of Zak’s house. The court makes the final decision on the date, in which the given order can be enforced. It has hence been observed that the mortgage borrower vacates the house before the date of possession.

Harewood’s Bank’s Application for Possession

In order to possess the property, the bank needs to make an application to the court to get legal orders. Therefore, the banks can possess the house, once the court grants the permission. The court could decide to delay the hearing or can even set aside the case, which depicts that no order will be granted. On the hand, the court can allow the lender, which in this case is Harewood Bank, to possess the property. If the court, orders the bank with the right, they can take over the property within 28 days after the court’s decisions regarding the matter. If the borrower fails to move out of the house, the lender has the full right to ask the court for orders on eviction.

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There is a high chance that the applications submitted by the lenders are accepted by the courts. The court on granting order to make the rightful possession of the borrower’s property will send Zak a copy of the claim made by Harewood Bank. This will in turn include fixed time and date for court hearing. In addition, it will involve various reasons, for which Harewood Bank can legally possess his home. Furthermore, it will include a defence form for the borrower to fill and return it to the court. Hence, Harewood Bank needs to provide evidence before the court takes any decision. The judges can therefore allow the borrower to evict the house within a time-span of 56 days.

Conclusion

Based on the theoretical understanding, it can be inferred that Harewood Bank has the legal rights to take possession of Zak’s house only after filing an application to the court. Hence, Harewood Bank can successfully possess the house of Zak for not being able to pay his mortgages.

Section 2

Introduction

In this particular case, Zak lives with Joanie in his farmhouse. Joanie pays almost all the household bills. In addition, she also does most of the cooking along with cleaning of the house. Furthermore, Joanie has extended the kitchen of the house at her expenses. In this case, it has been observed that the relationship between Joanie and Zak has been faltering. Contextually, Zak wishes to know whether Joanie may have any opportunity to claim the farmhouse. The objective of the study is to discuss on the interest of land and the entitlement that Joanie will receive after their relationship ends. The study also focuses on understanding whether she has proprietary interest and concentrates on whether Joanie can force Zak to sell the land.

Discussion

Interest of Land

Interest in land refers to the ownership rights concerning the real property, which includes factors such as ownership in the payment of fees along with any subsurface rights, easement and leasehold. Contextually, moving in with partners can be risky to form a legal standpoint. Zak and Joanie was not a married couple and hence were not secured as per the legal constraint. Therefore, by the time the individuals realise, the relationship breaks down. Joanie has no right to own the house until she has a proof that she makes regular payments either depositing for mortgage payments or spending on household. In addition, Joanie in order to have entitlement of owners must also prove that she possesses sufficient financial commitment such as paying a significant part of the household bills. Hence, it can be inferred that Joanie will have the ownership of Zak’s house, as she has contributed significantly in expanding the house for her financial investment. Therefore, Joanie can be entitled as a legal owner of the farmhouse along with Zak. Thus, it allows Joanie to transfer the house into joint tenants. This would further allow her to receive the entitled share of money if the property is sold.

Joanie is entitled to get the ownership of the house, if Zak dies despite the content in his will. However, if Joanie possesses the ownership based on the tenants of common, it would only allow her to acquire a share of the farmhouse and. Therefore, based on the owning tenants, both Zak and Joanie can agree on sharing the property by drawing deed of trust.

Proprietary Interest

Section 29(2)(a)(ii) under the Land Registration Act 2002 focuses on giving importance to overriding interests. Thus, the proprietary interest of Joanie can be protected on the basis of overriding interest, as set out in Schedule 3 of the Land Registration Act 2002. It includes the rights such as leases below seven year along with lawful easements and non-statutory rights. Para 2 of the Schedule has been replaced by Section 70(1)(g) of the Land Registration Act, 1925, which focuses on litigation and is considered to be relevant pertaining to the para 2. In order to enjoy continuous overriding status, it is essential to possess adequate interest in land, which should not be overreached.

For instance, in the case of National Provincial Bank v Ainsworth, Mr. Ainsworth was observed to be the second hand dealer of a car along with being a sole proprietor of the matrimonial home. It was found that he moved to his mother’s house after leaving the matrimonial home. In addition, he got separated from his wife on legal terms. Based on the separation Mr. Ainsworth got to stay in their house without paying any rent and further had to pay charges for reduced maintenance. It was later found that the house was transferred in the name of the organisation, Hastings Car Mart for securing the company’s debts. Mr. Ainsworth hence defaulted on his repayments, in addition to National Provisional bank, which sought the possession of the property. On the other hand, the wife of Mr. Ainsworth seeks for defeating the claims based on her overriding interests with respect to her rights for living in the house. Contextually, in this particular case, the court held their decision stating that wife of Mr. Ainsworth had no overriding interest. Thus, her right to live in the house was considered as personal rights against Mr. Ainsworth. It was not related to any property or interest in the house.

In the case of City of London Building Society v Flegg, Maxwell Brown along with his wife purchased a Bleak House. Half of the money for the house was paid by their parents namely Mr & Mrs Brown as well as Mr & Mrs. Flegg. The house was thus registered in the name of Mr and Mrs. Brown, who were the legal owners. It was then observed that the Fleggs and Maxwell completely occupied the newly purchased house. Few years later, Maxwell Brown in accordance to the breach of trust mortgaged the house to City of London Building Society. Contextually, the Fleggs were found to be unaware the mortgage and was evident that Maxwell Brown used the money for his personal purpose. Subsequently, Maxwell Brown defaulted on the mortgage payments. On the other hand, City of London Building took action seeking the ceasing of Bleak House. The Fleggs defended the case stating that they possessed beneficial interest in the house, as they contributed money to purchase the house under Section 70(1)(g) of the Land Registration Act of 1925. City of London Building Society asserted that interest of the Fleggs was overreached, as they paid the fund to trustees. The court thereby stated that Fleggs interest was overreached, as their rights were only applicable during the proceedings of sale.

Force Sale

Yes, Joanie being the one to pay all of the household bills and expanding the kitchen of the house gives her every right to own a portion of the property and can force Zak to sell the land. It is therefore essential for Joanie to apply the case for doing so. The Section 2(1) under the Partition of Property Act focuses on setting out the remedies related to either partition or sale. Contextually, the co-owner has the right to enforce the land, which is co-owned in this case by Zak and Joanie. This can be done by opposing the wishes of the co-owners along with the people who have interest in that particular land. According to the Section 2(1), al the tenants including tenants in common, mortgagees along with coparcerners, who have the right to possess property, may be forced to sell or partition the land based on this particular act.

Hence, referring to the case, Joanie can forcefully sell the land on the basis of Section 2(2) of the Partition of Property Act, thereby stating that the Section 2(1) can be applied to both legal as well as equitable estates. In this context, it can be determined that equitable estates refer to the land property in equity, which includes beneficiary’s interest under the trust. Thus, if the property including land is subjected to trusts, then these individuals can grasp their interests within tenants in common. In addition, the beneficial title is often subjected to either partition or sale that is similar to the lawful title of the land.

Conclusion

Based on the study, it can be stated that interest in land has allowed Jonnie to be entitled as the co-owner of Zak’s house. This is due to that fact that Joanie is responsible for paying off the household bills and expanding the kitchen area of the house. Joanie can hence be protected on the basis of Land Registration Act 2002, thereby applying her right in case of the property’s force sell.

Section 3

Introduction

Lease is a type of agreement that allows a landlord to provide another individual known as lessee his property rights in exchange of money or services. The objective of the study is to focus on lease agreement along with the obligation of the landlords towards a lessee. In addition, the study focuses on lawful eviction within lease agreement.

Discussion

Type of Agreement

The agreement between Zak and Rishi can be considered as a lease. Contextually, it can determine that lease agreements refer to the transfer of immovable property. Contextually, lease refers to the property rights of an individual in the land, which they call home. Under Section 105 of the Transfer of Property Act, is the transfer of rights that allow an individual to enjoy property made for a specific period of time either expressed or implied. In addition, lease is an agreement that is made in exchange for a price and is paid in terms of money or services in return. Thus, the agreement of lease gives the lessee the right to enjoy property and is mostly transferred in the support of the lease, thereby enjoying rights throughout the lease duration. Referring to this case, Zak has allowed Rishi to stay in his flat for a period of six months, in exchange for working in his farm. The agreement of lease therefore involves transaction that is associated with immovable property.

When there is a lease agreement signed between two parties, which in this case are Zak and Rishi, it is essential that there must be some fixed considerations in terms of money as well as share in crops. In addition, services can also be provided in return for the lease agreement, which is rendered periodically to the lessor by the lessee. Lease agreement often sets out various legal conditions with respect to tenancy, which can either be in the written form or oral, in addition to being fixed or periodic. In this context, referring to the case scenario, the responsibilities of the landlord, which in this case is Zak, must be able to keep the property free from any kind of hazards.

Obligation of Zak

Referring to the case, Rishi has been continuously complaining about the problems that he is facing. Rishi is found to have raised certain issues about the flat, which includes maintenance of heating facility and fixing the issue of thin walls. Based on the rules and regulation of renting out property in Wales and England, there are certain responsibilities that are to be followed by the landlord. In this particular scenario, Zak being the lessor, must fix the issues that Rishi has been facing at the time of residing in the flat provided by Zak. A landlord is responsible for repairing the property that applies to private, housing and council association landlords. Contextually, the responsibilities of the landlord includes fixing interior of the building including walls, banisters, stairs and roofs along with windows and doors. This further includes fixing of the baths, sinks, pipelines and sanitary fittings.

Based on the Tenant Act 1985, the landlord is not responsible for repairing any damage that has been caused by the lessee or for restructuring the building. The obligation of the landlord varies in the courts. As per the lease agreement, the landlord is obliged to repair the buildings including internal renovation. It is essential for the landlord to meet the requirements of the tenants. Walls are often regarded as the foundations and must be treated in an adequate manner. The landlord is thus responsible for fixing all the problems related to the house that they have leased or rented. These responsibilities of the landlords are also included in the UK Housing Act, 2004. Hence, it can be inferred as the right to demand for appropriate standard of living in the property. In addition, the landlord must also repair the heating system in the flat. Thus, the landlord, which in this case is Zak, must focus on repairing the heating system including radiators.

Lawfully Eviction

The landlord, which in this particular case is Zak, must follow certain procedures if he wants Rishi to leave his property, as it depends on the tenancy agreement and its terms and conditions. If Zak does not follow the procedures, he may be held guilty of unlawfully evicting Rishi from the flat. Based on the rules and regulations of the Assured Shorthold Tenancies (ASTs), the periodic lease runs on either week-by-week or on a monthly basis. Hence, if Rishi fall under any of these categories, Zak must provide him with a notice to evict based on the tenancy agreements. The Private Tenancies (NI) Order, which was implemented by the UK government in the year 2006, came into force in the year 2007, which underlined the right and responsibilities of both the landlords along with the tenants. The UK Legislation authorising the rights along with the responsibilities of the tenants are often found to be complex. The tenant, which in this case is Rishi, will at least get a written notice with a minimum of 28 days prior to taking any action by the court. The landlord, if focuses on taking back the property with no reason needs a notice period of two months in written stating that they wants their property back. Contextually, Zak has to give time of two months to Rishi before taking his flat back.

Conclusion

Based on the theoretical understanding, it can be inferred that the agreement related to immovable property is known as lease agreement. A lease agreement is only agreed in terms money, services or share of crops. Hence, Zak allowing Rishi in one of his flat in return for his services can be viewed as a lease agreement. In addition, Rishi complains to Zak regarding the problem he was facing in the flat. This includes the issues related to heating and repairmen of the internal walls. Under the Tenant Act of 1985, it is the responsibility of Zak to fix the property issues faced by Rishi. Furthermore, Zak hearing his continuous complaints gives seven days notice to Rishi for evicting the property, which is considered as unlawful. Zak should give him a prior notice at least before two months under the UK law for evicting the property.

Section 4

Introduction

In addition to the land law, the UK legislation of 1925 embedded a specific perspective for evaluating the value of land regardless the subsequent developments that has a significant impact on the modern land law. The Land Registration Act of 1925 has therefore been replaced by the 2002 Land Registration Act. In this context, use value of land is viewed in terms of asset for occupation along with its use. On the other hand, exchange value of land can be perceived as investment asset. It has often been observed that the exchange value of land is given more importance as compared to its use value. The objective of the study is to discuss the reason for exchange value to have a greater significance in comparison to the use value.

Discussion

Exchange Value and Use Value of Land

Land refers to a property that holds values with respect to the economic, legal and political discourses. The key focus is often given its use and exchange value of land. Use value of land is based on intrinsic as well as material characteristics related to the products along with its usefulness that can assist in satisfying the needs of man. On the other hand, the exchange value can be recognised within the market for sale. The notion of land often referred as a thing with an identified use value has an outdated concept of land as wealth giving emphasis on the exchange value. The development of theories along with policies and laws relating to the values associated in a legal structure has been observed to have a significant impact on the concept of home. There has also been a major shift from the use value being the aspect to dominance in case of exchange values.

The legislation of the UK under Law of Property Act of 1925 was enforced to treat the real property of an individual as capital. This was done for meeting the needs of industrialised as well as the commercial society. The passing of the law of property bill by the House of Commons stated land to be treated as a commercial asset. The Law of Property Act focused on targeting the co-owned land until it became a buying land. Subsequently, this particular act concentrated on protecting the buyers from co-ownership issues by placing co-ownership interest behind the trust for sale. Contextually, the objective was to ensure that the lawful owner of the land is capable to transfer the ownership to the buyer of the land. Therefore, the equitable land claims made by the co-owner opposed the overall proceedings of the sale. The impact of the 1925 legislation under the Law of Property Act went beyond, as it was simply not related to the selling point. This indicated that the property interest of co-owner was perceived as interest in capital instead of considering it as an interest in land.

The principle of conversion focused on the objectives of the 1925 legislation, which denied that the interest in land has any value in the eyes of law as compared to the other capital interest. In addition, the legislation further valued interests in the land that is co-owned based on their exchange value. Furthermore, the notion stating that particular piece of an actual property can be valued as a significant thing was rejected explicitly. Subsequently, the refusal related to the use of value with respect to land is provided as a realistic effect with the support of the doctrine of conversion. The debates in the UK Parliament after the Law of Property of 1925 confirmed the policy of the government relating to the land along with other types of property. This was hence assimilated indicating that land would not carry significant meaning rather it would be perceived as a wealth instead of treating it as a ‘thing’. Hence, it assisted in identifying the exchange value and not the use value.

Emphasis on Exchange Value

Land has a specific exchange value, which is realised only after sale of a property. It refers to the price, which is fetched, when sold within an open market. On the contrary, the use value of land is generated with the support of property’s ability to produce the real value through consumption. This is pursued by the individuals, who seek to enjoy the benefits through consumption. Exchange value is often developed, in case the property has the ability to generate a return on investment. Exchange values are of utmost importance, as it helps the individual to enjoy the returns. Therefore, the landlords along with developers and financial institution are the individuals, who are always searching for exchange values. The 1925 legislation openly set the rule that stated land to be treated as a commodity and make sure that the rights related to land were accepted within the market. Thus, the idea of land in terms of material along with organic property was all treated to be outdated, as land was perceived as a wealth.

The notion related to each and every piece of land is considered to have a unique value, which was openly stated in accordance to the UK legislation of 1925. This allowed setting out for removing remnant of the feudal system relating to land owning system. Hence, the economic agenda regarding the reforms were all clear. Therefore, the evolution from a law property to law of contract with respect to the property rights significantly changed from the use value to the exchange value. The English Land Law after the property reforms of 1925 has been significantly dominated by the philosophy of rationality and logic. Contextually, the relationship between the landlords and tenants are often considered to be strictly commercial along with negligible social bonding. In addition, the values that are attached to the land are often viewed as exchange value. It is essential to identify that the categorisation of the land law is the outcome of the policy agenda including legislative commitment with respect to the theme of separation instead of being inherent.

The notion of land consisting home must be valued in terms of an exchangeable capital as compared to its subjective value to the user of the land, which is even regarded as one of the most essential aspects of the 1925 legislation. Thus, it focuses on transferring land in an easy and securable way, which can be instantly exchanged as similar to other products. In addition, the legislation of 1925 also focused on denying the motion of land to have a special meaning considering that it was perceived to be occupied in terms of home. Therefore, the 1925 legislation highlighted upon the exchange value of a land, which has a greater emphasis over the use of value of land. In fact, strength of the key principles implemented by the year 1925 depicted that after solving the parliamentary debate in the favour of the occupation-oriented idea of a land, it has co-owned.

Conclusion

Based on the theoretical understanding, it can be stated that, exchange value perceives land as an investment. On the other hand, use value refers to the land being used as an asset for occupation. Hence, the exchange value is considered to have more significance in comparison to the use value of land. This is due to the fact that, the owners are mostly interested in getting the exchange value for the land instead of making use of it.

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Journals

  1. British Columbia Law Institute, ‘Consultation Paper on the Partition of Property Act’ (2011) University of British Columbia, 4.
  2. Conway L, ‘Legal Charges on Family Home – Repossession’, (2008) House of Commons Library, 2
  3. Crown, ‘Repairs: A Guide for Landlords and Tenants’, Communities and Local Government (2011), 3, 5
  4. Pivo PV, ‘Use Value, Exchange Value, and the Need for Public Land-Use Planning’ (2012) BPJ 41-42
  5. Temelini PD, ‘National Provincial Bank v. Ainsworth, [1965] 2 All E.R. 472’ (2017) 4 OHLW, 133
  6. The Law Society, ‘Your Guide to Setting Up Home With Your Partner’, (2008) SYF, 1

Books

  1. Cowan DS, L Fox O’Mahony and N Cobb, Great Debates in Property Law (1st edn Palgrave Macmillan, 2012).
  2. McFarlaneB, N Hopkins and S Nield, Land Law: Text, Cases, and Materials (3rd edn, Oxford University Press 2015)
  3. O’Mahony LF, Conceptualising Home: Theories, Laws and Policies (Bloomsbury Publishing 2006)
  4. Thomas M, Blackstone’s Statutes on Property Law 2014-2015 (22 edn, Oxford University Press 2014)

Websites

  1. All About Careers Ltd, ‘Land Law’, All About Law (2016).
  2. Citizens Advice, ‘What Happens When Your Mortgage Lender Takes You to Court’, Law and Courts, 2017).
  3. Crown, ‘Private Renting for Tenants: Evictions’, Home (n.d.).
  4. Crown, ‘Private Renting for Tenants: Tenancy’, Home (n.d.).
  5. Crown, ‘Repossession’, Home (No Date.).
  6. E-LawResources, ‘Overriding Interests in Registered Land’ Home (n.d.).
  7. Fieldfisher, ‘A Lender’s Right to Take Possession of Residential Property’, The Wealth Finance Brief.
  8. Get Revising, ‘Land Law Cases Overriding Interests and Co Ownership’, Law (May 19, 2017).
  9. Mortgage Strategy, ‘The Remedy for a Common Problem’, Archive (October 7, 2002) .
  10. Shelter, ‘7 Steps to Home Repossession’, Shelter England (December 31, 2016).
  11. Shelter, ‘Landlord and Tenant Responsibilities for Repairs’, Shelter England (August 20, 2015).
  12. The Tenants’ Voice Ltd, ‘Structure and Exterior-Repair of Rented Properties’ Guides (January 20, 2017).
  13. US Legal, ‘Interest in Land Law and Legal Definition’ Interest in Land (2016).
  14. Verma P, ‘Difference between Lease and License’ Home (February 22, 2015).
  15. Wallis V, ‘Can I Force a Co-Owner to Sell’, The Guardian (April 30, 2008).
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