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Published: Fri, 02 Feb 2018
This chronologically arranged report explores six separate issues
A contract to sell real estate will not include items of personal property unless they are expressly included. Fixtures are not always in an inventory but are included in a conveyance of land: s. 62, Law of Property Act 1925. When land is sold, sellers usually provide a list of what are fixtures and fittings (Botham v TSB Bank plc  73 P & CR D1). To determine whether the missing items are fixtures will depend on both the degree and purpose of annexation. Elitestone Ltd v Morris  1 WLR 687 emphasises the objective test of intention for such purposes.
The ‘original Georgian fireplace’ was annexed to the room; however because it is described as ‘original Georgian’ and ‘worth a fortune’, it may fall into the same category as the tapestries in Leigh v Taylor  AC 157. The purpose may have been for a better enjoyment of the chattel, as a chattel. However in Re Whaley  1 CH 615 ‘an Elizabethan room’; instalments of chattels of beauty and the unity of design meant they became part of the room and therefore part of the realty. Charlie also may not have installed the fireplace; if this is the case it may objectively be viewed as a fixture
The ‘dining room suite’ was unlikely to be affixed to the floor or walls. In Vaudeville Electric Cinema Ltd v Muriset  2 Ch 74 and D’Eyncourt v Gregory  LR 3 Eq 382 free standing seats were considered as chattels. Charlie’s verbal promise to leave the furniture for free will not show an intention to be bound and so a reasonable person would argue they are chattels.
With regards to the ‘collection of statues’: Berkley v Poulett  shows statues can be held as chattels. However, the facts of Hamp v Bygrave  and D’Eyncourt v Gregory  LR 3 Eq 382 are more similar to that of Hollyrood Farmhose and statues were held as fixtures. Therefore because the statues were old, valuable and designed by a famous landscape architect for the formal walled garden, they are objectively, likely to be viewed as fixtures
‘Apple trees’ are a corporeal hereditament; ‘fructus naturales’ are the natural fruits of the land on which they arise. They are considered to be part of the real property (s.205 (1)(ix) LPA 1925) and not separate chattels in relation to any legal conveyance of the property.damages
Howard (covenantee), as the successor in title of the dominant land may want to take action as he could be affected by Edward’s (covenantor) breach. He will only be able to take action if he can establish that he has the benefit of the covenant which is being breached and that the burden of the covenant passed to Edward upon the transfer of the servient tenement. Alan Ward will remain liable for Edward’s breaches; however Howard should pursue Edward as he committed the breach and it should stop him breaching covenants in future.
The benefit of the covenant is contained in a Conveyance between Chalrie Farnworth and Alan Ward (9th September 1990). The assignment is in writing, with express notice given to the Alan, the covenantor (s.136 LPA 1925). The ability to enforce the covenants can therefore pass to an assignee. However, Austerberry v Corporation of Oldham  established that at common law the burden of a covenant will never pass to a successor of the servient land. This principle, confirmed in Rhone v Stephens  means that at common law Howard will not be able to enforce the covenants since Edward is a new owner of the servient property.
However, the burden of a covenant may have passed to Edward in equity. In order for this to happen the four conditions developed in Tulk v Moxhay  must be satisfied. The covenants concerned which Edward has breached are negative covenants (Haywood v Brunswick Permanent Benefit Building Society ; the covenants accommodate Howard’s land?; Charlie and Alan intended the burden to pass with the servient land; and it is likely the covenants were entered as a notice on the charges register (s.32 LRA 2002) of The Barn. If they were not entered, Edward as a purchaser for valuable consideration, will be deemed not to have notice: s.29(1) LRA 2002.
If the burden of the covenant has passed in equity, Howard must also prove the benefit of the covenant passed to him in equity, so he can enforce the breach: Miles v Easter . He must show the covenant touches and concerns his land; and the covenant has passed. It touches and concerns his land because………
The covenant has passed by express annexation as the wording of the covenant shows the benefit is being attached to, and expressly made ‘for the benefit’ of the dominant land (Rogers v Hosegood ).
Howard’s enquiries are two fold: whether Fred (dominant owner) can use the main driveway of Hollyrood Farmhouse and if Howard (servient owner) can stop Fred using the cart-track, to access The Paddock
An easement is the right over another’s land; a right of way is well established as an easement (Borman v Griffith  1 Ch 493), capable of being overriding (s.70 (1) (a) LRA 1925; LRA 2002 Sch 3, para 3) and a legal interest (s.1(2) Law Property Act 1925). Both the main driveway and the cart-track would be examples of positive easements; the four requirements set out in the judgement of Evershed MR in Re Ellenborough Park  Ch 131 are satisfied. In addition, they would not require Howard to spend money (Regis Property Co Ltd v Redman  2 QB 612); would not amount to exclusive possession of Howard’s land (Coupland v Greenhalf  Ch 488) and are exercisable as a right. There is no evidence of an express grant in the land registry (s.27(2)(d) LRA 2002); however a court may imply or presume an easement was created.
Fred can not acquire a right of way by virtue of necessity if he can use the cart-track as an alternative route: Manjang v Drammeh  61 P&CR 194. Also, even though Andrea had owned the Paddock for over 20 years it is unlikely that she used the driveway and obtained an easement by prescription. However, a court may imply an easement under the rule in Wheeldon v Burrows  12 Ch D 1281; this would elevate the main driveway from a quasi-easement into a full easement. The conditions for the operation of this rule are likely to be satisfied In Goldberg v Edwards  Ch 247 a right of access was not be acquired under the rule in Wheeldon v Burrows because there was another route. However, in Borman v Griffith  a secondary access route to dominant land was acquired under this rule because it was the only practical access route for heavy vehicles involved in the claimant’s business. The main driveway seems more than mere convenience for Fred (Wheeler v J.J Saunders Ltd  Ch 20). The easement would therefore be legal if it was created by deed (s.52 (1) LPA 1925; s.1(2),(3) LP(MP)A 1989) and binding under schedule 3 paragraph 3 LRA 2002; otherwise equitable and should be entered on the register (s.32 LRA 2002).
The Paddock is land-locked with no direct access to public roads; without an easement the land is inaccessible. Andrea would have therefore acquired an implied easement of necessity as it was essential to any use of the land: Pryce v Mcguiness  Qd R 891 and Union Lighterage v London Graving Dock Company  2 Ch 557. Andrea and Charlie would have intended for there to be an easement, but have not included it in the conveyance: Nickerson v Barraclough  Ch 32. London Corporation v Riggs  13 Ch D 798 emphasises that an easement of necessity is restricted to the needs of the dominant tenement at the date of the grant. Thus, if Andrea did not use a vehicle this easement may not extend to Fred’s needs. However the easement may extend to Fred’s needs and could be overriding (s.70 (1)(a) LRA 1925, sch 12 LRA 2002). But if he does not have this right of way The Paddock would be land locked; giving him a stronger position with regards to the use of the main driveway.
Under the Treasure Act 1996 (TA ’96) treasure vests, subject to prior interests and rights (s.4(1), (2)), in the Crown. Treasure is defined in s.1, TA ‘96 and so if it falls within the definition, Fred will not have the right to keep it but must report it otherwise he may be committing a criminal offence: s.8, TA ’96. Furthermore items which would have been treasure trove if found before the Act would also be included. However if the ‘treasure’ is modern it will not be within the Act. Possible claimants would therefore be Fred, Howard, Charlie and Andrea. In addition Fred is unlikely to have the right to dig into the land: Waverley Borough Council v Fletcher  4 All ER 756 (CA). If either Charlie or Andrea could establish that they were the true owner and they had lost it, they would have prior claim (Moffat v Kazana  3 All ER 271). The Law of Property Act 1925, s.62 will not operate to pass title of the treasure on the conveyance. The true owner will have six years from the time of the find before his rights are barred (Limitations Act 1980, ss. 2, 4 and 32). However this time will not start until Fred attempts to trace the true owner. Howard is likely to establish a prior possession than Fred to the treasure if it was attached to the land (Elwes v Brigg Gas Co  33 Ch D 562 and Waverley Borough Council v Fletcher ).
This issue concerns a letter addressed to Charlie and whether Gabriella has an interest in Hollyrood Farmhouse which would bind Howard.
The land register gives notice of Gabriella’s matrimonial home rights. This is a protected minor interest (s.20 (1) LRA 1925) and the Family Law Act 1996 (FLA 1996) protects rights of persons in occupation. However, under s.31(8) FLA 1996 these rights are brought to an end by the termination of Gabriella and Charlie’s marriage (s.31(8)(b) FLA 1996); unless the court directs otherwise by an order under s.33(5) FLA 1996. It is therefore unlikely that Howard will be bound by this legal interest.
Through financing the serious refurbishment and using her expertise, Gabriella also has a minor interest in Hollyrood Farmhouse by means of a constructive trust. Because it is not entered on the land register (s.29 (2) LRA 2002) it will not bind Howard for valuable consideration (s.29 (1) LRA 2002). It will only be binding if it is upgraded to ‘overriding’ by satisfying the requirements of schedule 3 paragraph 2 LRA 2002. If the requirements are not met, Gabriella’s interest will no longer exist and Howard will not be bound.
Under sch.3 para.2 LRA 2002 Gabriella can establish that: she has a proprietary interest which existed at the time of the disposition. However she must also have been in actual occupation. Such occupation must have been obvious upon reasonably careful inspection of the land; or if Howard had actual knowledge of her interest. Howard clearly did not have actual knowledge of her interest, but acknowledged “female influence” and female clothing. The sale took place on the 26 November 2010, so there is the issue of whether Gabriella was in actual occupation at that time. ‘Actual occupation’ requires “physical presence” (Williams and Glyn’s Bank v Boland  AC 487) on the land, involving “some degree of permanence and continuity” (Lord Oliver in Abbey National Building Society v Cann  3 WLR 832). Actual occupation may not be prevented by justified, temporary absences (Chhokar v Chhokar  FLR 313). In contrast despite what may have been her clothing; Gabriella seems to have been in Spain for a “long time”, with no clear intention of returning to live in Hollyrood Farmhouse (Thompson v Foy  1 P & CR 16). If this is the case, she would not satisfy the requirements of sch.3 para.2 LRA 2002 and thus not have an overriding interest.
If the requirements under sch.3 para.2 LRA 2002 were met, Gabriella would have an overriding interest over the land which she actually occupied (reversing the decision of Ferrishurst Ltd v Wallcite Ltd ). Howard would be bound as he had not taken the necessary steps at the date of the sale to overreach Gabriella’s beneficial interest.
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