Rights Of Way, Mortgages, Loans
Section A - Compulsory Question
There are a potential problems and a number of potential parties
in the given scenario. The main issues discussed below are:
1) John Fury's
right of way between Meadows Lane and Prenton Place.
2) The Flowers' complaints
about the noise coming from Joe's garage.
3) Jane Green's complaint about
the maintenance of the fence.
4) The mortgage (and default of it) and the
loan secured against the house.
1. John Fury's right of way between
Meadows Lane and Prenton Place.
John Fury's right of way will be classified
as an easement. In the context of registered land, legal easements are included
in the category of overriding interests (Land Registration Act 1925, s70(1)(a)),
and are therefore enforceable against any successor in title to the servient land
(Joe's property).
Protection
The easement should and has been
registered on the register of the servient tenement. It appears as entry 2 on
the Charges register.
Enforcement
Any wrongful interference
with this easement would potentially constitute a nuisance in respect of which,
the remedies of damages and injunction are available. In order for the interference
to be actionable by John, it must be shown to be a substantial interference. This
is a question of fact and degree depending on the nature of the right, the dominant
and servient land, and the particular circumstances of the case. Here, the interference
of the right of way by car appears to have been substantial since John can no
longer drive his car along the passageway. Whether or not it is actually a substantial
interference is at the courts discretion. If it does interfere substantially,
John can (i) get an injunction against Joe to prevent him from using the garage
or (ii) obtain damages to compensate for this breach.
2. The Flowers'
complaints about the noise coming from Joe's garage.
The Flowers' concern
over the noise from Joe's garage relates to covenants affecting the use of land,
namely causing nuisance, annoyance or disturbance to the neighbours.
Protection
Jim and Wendy's proprietary interest is protected via a restrictive covenant.
With registered land a restrictive covenant must be registered as a minor interest
on the Charges register of Joe's tenement. The restrictive covenant in entry 1
(b) on the register restrains Joe from doing anything on the property which may
become a nuisance, annoyance or disturbance to occupiers of neighbouring property.
Enforcement
Even though the original covenantee was William
Clarke, the burden of the restrictive covenant will run with the land as intended
under the rule in Tulk v Moxay 1 . It satisfies the requirements and is intended to bind successors in title and
so Joe is bound. The usual contractual remedies of damages and/or injunction are
in principle available. Therefore, in the circumstances the Flower's can obtain
an injunction to prevent Joe from using the garage and making a nuisance or obtain
compensation from Joe as a result of the breach of covenant. Since Joe has been
making noise at night, there is likely to be a breach; an injunction would be
the most appropriate remedy.
3. Jane Green's complaint about the maintenance
of the fence.
Jane Green's demand to repair the fence concerns a positive
covenant.
Protection
With registered land a covenant such as
this must be protected by an entry on the Charges register of Joe's land and is
found in entry 1(a) of the register.
Enforcement
The burden of
a positive covenant cannot run with the land to subsequent purchasers, so whilst
William Clarke was bound, Joe is not.
4. The mortgage (and default of
it) and loan secured against the house.
Protection (Mortgage)
Regarding the mortgage by Grabbit, any mortgage on registered land must be registered
as registered charges in the Charges register of the mortgagor's title and are,
under entries 3 and 4 on the register.
Enforcement (Mortgage)
Grabbit can only redeem the mortgage if the power of sale arises. The power of
sale is the most important remedy where a mortgagor defaults on the loan. Section
101 of the Law of Property Act 1925, a mortgagee has a statutory power to sell
the mortgagor's legal estate (if by deed). Under section 103 of the same Act,
the power of sale is not exercisable until:
" Joe has defaulted in
a repayment of capital for three months; or
" A repayment of any interest
due is two months in arrear; or
" Joe has broken some provision in the
mortgage.
Provided that this is the case then Grabbit will be able to exercise the power of sale and repay themselves from the proceeds. Grabbit will be able to take the proceeds free from Loansharks interest since their interest was subsequent to Grabbit's.
Protection (Loan)
The loan by Loansharks Building
Society will need to be registered as a legal charge over the property and is
so under entries 5 and 6 of the register.
Enforcement (Loan)
They will be unable to exercise their power of sale since Grabbit has a prior
registered legal interest in the property. However, any money left from the sale
by Grabbit is available to Loansharks as a lower creditor.
Conclusion
Joe is bound by all of these interests except the positive covenant requiring
maintenance of the fence, since this does not pass in a conveyance of property.
With regards to the complaints from John Fury and Jim and Wendy Flowers, if neither
are successful with methods advised above, either of them try to could enforce
the restrictive covenant contained in the Charges register (entry 1 (c)). Joe
is in breach of this covenant by using his property for business purposes. The
original covenantor could, assuming he was willing, gain an injunction against
Joe to stop him running his garage from home, thus satisfying both complaints.
Any advice to Joe regarding the mortgage is based on the Administration of Justice Acts 1970 and 1973. This applies where the mortgage is of a dwelling house and the mortgagee is bringing an action for possession. If the court is satisfied that the mortgagor is likely to be able, within a reasonable period, to pay sums due under the mortgage, it can adjourn the proceedings or suspend the effect of an order for possession for a period the court thinks reasonable. If the mortgage is by instalments, this period will only be until the court thinks he may pay the instalments due.
- (1848) 2 Ph 774[^ Return]
BIBLIOGRAPHY
Abbey, R. (2000) 'A Practical Approach to Conveyancing', 2nd edition, Blackstone Press Limited, London.
Butt, P. (2003) 'Conveyancing' Jordan Publishing, Bristol.
Gravells, N. P. (1999) 'Land Law (Text and Materials)', 2nd edition, Sweet and Maxwell, London.
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