TLATA - Property Law Research Essay

Since the trustees are no longer required to sell land as a result of the TLATA introduction the beneficiaries are now eligible to share in any proceeds from the sale or occupation of the land. This may serve as the main justification for contesting Franco's title. None of the equitable owners were consulted by the guardians Albert and Betty. The beneficiaries could challenge the trustees after the sale as a remedy, but Franco is under no obligation to make sure they are informed. The trustees committed a breach of trust by their inadequate deliberation on relevant matters as it displaces all the independent judgment on the financial position of the property with the main trust consultants placing the decision-making the process open to serious questioning.

The trust deed contains a requirement of obtaining the consent of beneficiaries' before exercising their powers and this especially includes the power to sell the property. This requirement extends beyond consultation. The title of the property could be placed on restriction in cases where there is no requirement compliance by the Land Registry.

The expert advice provided by David (their trust accountant) and Franco (business advisor) raise some concerns that should have prevented the trustees from approving the intended sale as the decision did was not made in benefit of the beneficiaries. A case in point is Franco's promise to bequeath the property to both Albert and Betty in his will that could see them and their families benefit from the property. This indicates the trustees acted with selfish interests and this brings about a conflict of interest when making the decision on the sale of the property. The other point of challenging the title of Franco is commonly referred to as Fraud on power about the trustee's act although within the scope of their powers was exercised for an intention. In such a case there is no need even for the beneficiaries to prove that the trustees acted dishonestly and in such cases, the power exercised by the trustees will be void.

a) Advise Jamal

The law provides protection for unregistered interests through section 74F of the Caveat lodging system through any individual claiming to have any equitable interest in Franco's property. This can stop Jamal from making any further recording of dealings without the caveator's approval thereby freezing all activities that may impact the caveat subject. This means that the caveat will affect both the capital bank dealings, the sale of Xio to Jamal and the Equity bank dealings. As all dealings were completed after Judith had lodged a caveat. Xio fraudulently used the transfer to sell to Jamal, but before they could register their dealings, Judith lodged her caveat thereby this injects the sale. Therefore this makes the conflict be between the interests of both Jamal and Judith. The priority of unregistered interests is prioritized based on the time of creation of the individual equitable interests. However, for this, case, Jamal might file for displacement of Judith's equitable interests in favor of his interests created second in the time since the conduct of Judith has consequences that Jamal has a better equity on the same. Hence the appellant's equitable interests may have to be postponed to those of Jamal.

As a general rule it is impossible to protect the rights of a beneficiary under a land charge as this type of interest is not covered under the categories capable of protection in s.2 however the equity interest of Judith will be protected under the Doctrine of notice through the enforcement of the beneficiary of trust.

b) Advise Karen and David

The case of Franco and David reflects joint ownership through joint tenancy a case whereby all the owners are entitled to equal and undivided share in it. In addition to this, the joint tenancy attributes through the rights of survivorship what is bound to happen in case of the owner's death. In cases of death to one of the owners of the joint tenancies then the remaining owner receives the deceased owner's share upon their death. So in the case of Franco's death, David assumes full ownership (100% equity) on the property.

Although Franco tries to transfer his equity share to her sister, it should be clearly noted that the ownership share on properties of joint tenancies cannot be transferred to their heirs through a will. This implies that the documentation made by Franco, her sister, the local solicitor (Ms Wildchild) and two witnesses (Harmony and Grace) is all in vain.

In cases whereby the joint tenant murders their partner then there is severing of the joint tenancy and the replacement of tenancy in equal and common shares. This implies that the remaining (David) member of the joint tenant assumes the entitlement to the ownership of the property. However, the law challenges any benefits resulting from illegal acts thereby David cannot profit by killing Franco hence in such a case the joint tenancy becomes converted to a tenancy in common. In addition to this, the victim's share within the joint tenancy property is transferred according to Franco's will whereas the David's share (murderer) will be transferred to public trustees. It ensures that the murderer doesn't benefit from the illegal crime acts.

Considering that the procedure of writing a will had been legally followed and completed then Karen is entitled to the whole share entitled to his dead brother, Franco.

Question 2

a) Advise Tess about her rights in relation to the property

Gerry's right of land ownership doesn't preclude Tess from having rights over their land as well as she has a right use their properties. According to the Wheeldon v Burrows rule (1879) Ch D 31, the grant on part of the tenement holds subjects to similar interests or entries recorded in the folio but free of the rest of the estates or interests not recorded in the except. In the case of Gerry's case omission of the easement described in the easement subsisting immediately before the bringing of the land into the new act provisions that was validly created under any other act before or at that time, then the easement is enforceable as an exception specifically to indefeasibility. The provisions of RPA clearly outline an easement that was previously recorded but is now omitted from the section is within this section. The terms validly created under this or any other act may imply that the easement that were created under the Tess v Gerry can't be validly said to have been created under the RPA or any other act for that case.

The claim over part of the land adjoining Tess's Land and Gerry has been for some time left for her use for parking her car and boat. There is evidence proving of a deal execution between Gerry and Tess, but Gerry decides to remain silent over the omission from the register and goes ahead to destroy the original document. Basing the argument reasoning on the Golding v Tanner case then s42(1)(a1) is not applicable but submits the personal right arising as a result of no change in the registered proprietorship. By Gerry leasing the property to a second party, he is in breach of the first deed promise as the personal equity s created in favor of James against Tess thereby breach of the obligation to the party seeking access and benefits of the parking area.

b) Advise James about his rights to the property

Gerry as the owner of the land has reasonable use of the piece of land, and this may include the right to build a fence blocking Tess's access to the Shed or property, and these rights are capable of making an easement. James's farming can be interpreted as the servient owner having substantial use for their piece of land, and this includes the subsurface or the airspace. The agreement is however expressed as a deed although the rights granted were made like an easement.

For the easement to be validly created, they should be in compliance with the RPA provisions as of the time of creation is different from what they are at the moment. Since the RPA does not interpret as diminishing to the property owner rights without compensation terms unless the construction is apparent by necessary implication or expression of the provision terms. Since the land was in the old system originally, the easement id validly created, however, the bringing of land under the Torrens system it may qualify as an indefeasibility exception. James should have consulted with the registry of lands on the expiry of the easement rights of way hence the easement on deed will remain with the land in perpetuity.