From the above question it is obvious that Davina is exasperated because the register of title had contained no mention of the covenant, right of way and Becky’s rights. Therefore we must advise her on the legal proceedings she will be able to bring. We must ask ourselves three questions in order to understand this question. One, how does the registered title affect Davina? Two, due to the purchase agreement and Davina as duly registered as the new proprietor, what is her situation in consideration to Becky? E. g. does Becky have a beneficial interest?
If so, how does that affect Davina? And three, what are the easements affecting Davina? Looking at the registered title, we must place Davina with what notice she will cover. As Davina failed to make reasonable enquiries before completing the transaction she is deemed to have “constructive notice” of all the matters that would otherwise have been discovered, Law of Property Act 1925, s. 1991. Therefore, Davina will be able to consider the two factors concerning constructive notice, one being the “investigation of title” and two being the “inspection of land”.
Taking into account the investigation of title we can investigate the Allan’s title to the land by checking previous conveyances (title deeds) going back at least 15 years, Law of Property Act 1925, s. 232. Therefore, in 2000 William sells to Allan, and then in 2008 Allan sells to Davina. The purchaser is deemed to have notice of any equitable rights recorded on the title during that time under the Law of Property Act 1925, s. 443.
Looking for equitable rights that bound the property we trying to find the ownership of a fee simple, going back to the last conveyance of property as someone may have not sold the property for 50 years. In the view of investigation of title we can gather information acquired by inspecting the land itself and to query anything that appears inconsistent with the title offered by the vendor, in this case Allan is fraudulently operating a sales business without the consent of Becky, who in fact can be seen as a beneficial owner.
To further strengthen the idea of the rights in the registered land, under Schedule 34 the rights of a person in actual occupation (Allan) will not override a purchaser where either enquiries have been made of the right-holder and he has failed to disclose the right in circumstances where he could reasonably be expected to disclose it or the right-holder’s actual occupation is not obvious on a reasonable inspection of the land, and the person potentially bound did not have actual knowledge of the interest at the time of the disposition.
Looking at the Law of Property sections and Schedule 3 you can see how Davinas’ case against Allan is starting to take form. Looking back at the question the purchase price was i?? 200,000, Allan contributed i?? 150,000 and Becky, Allan’s girlfriend, contributed i?? 50,000 giving her beneficial interest based on the contributions she has made to the purchase and the intentions of both partners when the home was bought.
However when Davina came to inspect the property she was aware that Becky has been living with him in the Cornershop but she did not want to inquire into the living situation between Allan and Becky in case they had just recently split up and if the tensions were high. However, this act Davina refused to make an inspection upon has caused a lot of conflict in this case, as Allan, in fact, has hidden her possessions to give the impression that she was not there.
This case can be closely compared with the following case of Kingsnorth Finance Co Ltd v Tizard5. A wife who is separated from her husband but spends some part of virtually every day in the matrimonial home remains in occupation. A purchaser (Davina in the question case) needs to carry out a full inspection of property in order to discover who other than a husband is in occupation, and has to look behind the husband’s attempted concealment of his wife’s occupation.
The marriage between a husband and wife broke down and the wife left the matrimonial home but returned there regularly, including sleeping there when the husband was away. The house was in the husband’s name. The husband approached mortgage brokers and signed the application form and stated that he was single. The surveyor saw evidence of the occupation by the husband and his children, but no evidence of occupation by any other female. Shortly after, the husband and son emigrated.
It was held, since on the facts the wife spent some part of virtually every day in the former matrimonial home, it was clear she had been in occupation and her change of habits had not altered that. The report to the “son and daughter” itself should have put the plaintiffs on further inquiry which would have led them to discover the wife’s beneficial interest by virtue of the Law of Property Act 1925 s. 199(1)(ii)(a)6. The husband’s attempt to conceal the wife’s occupation could not be relied on by the plaintiff as preventing the need for further inquiry.
The plaintiffs’ claim for possession was dismissed. Relating this case to the question, it can be seen that Becky was in fact still living with Allan and so therefore, as seen in the case above, has a beneficial interest in the property due to her contribution of i?? 50,000. If a partner has a beneficial interest, this means she has the right to occupy the home by applying for an occupation order, she may be able to prevent the sale or use of the home as security to raise a loan and is entitled to a share of the proceeds of the sale of the home based on her beneficial interest.
However, Davina has certain powers from being duly registered as the new proprietor under the Land Registration Act 2002, s. 23 (1) (a) (b)7 it states that an owner’s powers in relation to a registered estate consist of (a) the power to make a disposition of any kind permitted by the general law in relation to an interest of that description . . . and (b) the power to charge the estate at law with the payment of money. The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate.
Allan also inserted an easement (a right of way across the backyard of the shop, which William needed to get his Wheelie Bin to the street from his new home, which was next door). However, c8 A legal easement which, at the time of the disposition (a) is not within the actual knowledge of the person to whom the disposition is made, and (b) would not have been obvious on a reasonably careful inspection of the land over which the easement or profit is exercisable. Therefore, following this section it can be seen that Davina can rely on certain aspects of this schedule.
However, Allan did insert a promise in the conveyance that Davina would give effect to the covenant with William but he never made this entirely clear. Therefore, drawing to a conclusion, having answered the three questions stated at the beginning, from the above analysis and the information provided, Davina will succeed in certain areas of the law. Firstly relating back to Kingsnorth Finance Co Ltd v Tizard9 the plaintiffs’ claim for possession was dismissed due to his fraudulent and dishonest behaviour, this situation is similar to that of Allan.
Under Schedule 310 the rights of a person in actual occupation will not override a purchaser. Additionally, Davina has certain powers from being duly registered as the new proprietor under the Land Registration Act 2002, s. 2311. With regards to Becky, Davina may not succeed; however, due to the nature of the purchase agreement between Davina and Allan, in that, Allan did not fully and honestly give clear details about the transaction, she does have standing.