Divergent Evolution of English Property Law

Question: Discuss about the Divergent Evolution of English Property Law. Answer: Introduction: Maria, after her divorce, bought Trafalgar house in March 2015. She was registered as the sole legal owner of the property. She shifted to the house with Philip who paid an amount of 75000 as the purchase price of the house against which an express trust was created confirming Philips interest. On 6 March 2016, Maria leased an extension to the property to Saeed that was to commence on 5 August 2016 and was to last for one year. Davinia, neighbor of Maria claims that on 28 March 2016 she was given easementary right over the back of Marias garden. Then, Hillary, Marias friend claims that Maria entered into a contract to sell the house to her on 15 April 2016. On 4 July 2016, Maria sold the house to Kenneth in the absence of Philip who was in South Africa at the time of sale. In English Law, when more than one person owns a land, the ownership of the land is acquired through a trust of the land. A trust of land distinguishes the lawful title of the land from the equitable ownership rights. The trustees hold the land on trust on behalf of the beneficiaries who are entitled to the rights of the equitable ownership. Co-ownership may be recognized as tenancy in common and joint tenancy. In case of joint tenancy, all the co-owners of the land own the entire property together. It includes the following four essential elements: Unity of possession- each owner is entitled to possess the entire property and cannot prohibit the other parties from any part of the property; Unity of title- the right to title of all the owners must be acquired through the same transaction. Unity of interest- the interest arising from the transaction is same for all the parties. Unity of time- all the parties acquired the interest at the same time. In tenancy in common, not all the tenants own the property, instead each of the tenants are entitled to their separate shares. As it is not feasible to divide the property among the tenants, they own their separate estimated shares to the property. In cases where there is a sole legal owner of the land but other people have contributed in the payment of the property, there still arises a trust even in the absence of a written declaration and such a trust is known as implied trusts. A trust can also arise in the form of an express trust constructive trust and resulting trust. EXPRESS TRUST - In English Law, an express trust is the declaration by the legal owner of a property that they hold the property on trust for particular beneficiaries. An express trust, in order to be valid must include these essential elements certainty of intention, subject matter and object. The importance of these conditions were recognized by Lord Langdale MR in the famous case of Knight v Knight where the principle was established that an express trust cannot be formed in the absence of these essential certainties. According to section 53(1) (b) of Law of the Property Act 1925, the declaration must be in written format and contain the signature of the legal person declaring the trust. It must include the material terms of the trust. In case there is no such document that creates a trust, the intention can be determined from the conduct or words of the parties. In Morice v Bishop of Durham, it is held that certainty regarding the object determines who the beneficiaries are so that the court can decree performance in favor of the beneficiaries. Moreover, each tenant under the tenancy in common, possesses an individual share in the property that is co-owned with the other tenant. The owners in a tenancy in common property are entitled to sell or mortgage their individual shares. However, all the co-owners are entitled to use the entire property irrespective of the percentage of shares held by them. The owners are not entitled to transfer or dispose of anything except their respective shares. The tenants in common can lease, mortgage, sell the property provided all the owners agree for the same. In the absence of such agreement the entire property cannot be sold or given or mortgaged by any one of the tenants. In case of sale, the new owner of the property under the tenancy in common agreement inherits all the privileges and the rights of the tenancy. The tenants in common, individually, cannot make any changes in the property without the consent of all the owners. When one of the co-owners of the property sales his individual interest in the property, it depends on the buyer whether to pay the market value after taking into consideration all the issues associated with the tenancy. Application In express trusts, the parties are at liberty to decide as to what extent they are entitled to the trust. The parties or tenants mention in the written document their respective shares in the payment of the property and set out other conditions relating to the sale of the trust property[9]. However in this given case, an express trust has been drawn against Phillip but the extent to which both Maria and Philip is entitled to the trust is not mentioned. The written declaration must include the extent of shareholding of each tenant as held in the case of Goodman v Gallant. However, in the absence of any express trust or in case the parties fail to declare their extent of entitlement to the trust, beneficial entitlement is implied from the conduct of the parties to the tenancy agreement. In this case, Maria and Phillip are parties or tenants in common to the property. Maria is not entitled to sell or lease the property without the consent of Phillip. Maria is entitled to sell or lease her undivided interest in the property, but in the given case, neither Maria nor Phillip has specifically mentioned the percentage of their shares in the property. However, in the absence of any such specification, the court usually assumes that the property is held in equal shares. Maria is alleged to have given easementary right of way to Davinia over her house garden. She is not entitled to give easementary right as her undivided interest is not specifically mentioned. Maria has sold the property to her Hillary, which is also not valid as she is not the sole owner of the property and being a tenant in common, she did not receive consent from the other tenant in common either. Further, she entered into another sale contract to sell the house with Kenneth, which is also not a valid sale contract because she has already sold the house to Hillary. Reference list Anderson, Jerry L. "The Divergent Evolution of English Property Law."ABA Probate and Property5 (2015). Bridge, Michael.Personal property law. OUP Oxford, 2015. Cross, Emma. "The Validity of Trusts: Is the Beneficiary Principle Still a Relevant Requirement."Exeter Student L. Rev.1 (2015): 28. Hudson, Alastair.Equity and trusts. Routledge, 2012. Morgan, Rachel. "The Difference between the Acquisition of Rights and the Quantification of Shares of Co-Ownership Interests in Land."Exeter Student L. Rev.1 (2015): 35. Penner, J. E. "The (True) Nature of a Beneficiarys Equitable Proprietary Interest under a Trust."The Canadian Journal of Law and Jurisprudence02 (2014): 473-500. Penner, James.The law of trusts. Oxford University Press, 2016. Pettit, Philip H.Equity and the Law of Trusts. Oxford University Press, 2012. Sexton, Roger, and Barbara Bogusz.Complete land law: text, cases, and materials. Oxford University Press, 2013. Sitkoff, Robert H. "Trusts and Estates: Implementing Freedom of Disposition." (2014).