Law Case Study

Introduction

English land and property law has had many years to be developed. The law now tends to focus more on the needs of the tenants more or less equally as those of the property owners. Thus, any person that feels that their was any kind of unfairness towards their rights may see redress either through common law or equity.

PART A

Possible claim of Mr. Jones

Mr. Jones had been granted the permission to walk through the 3 Bishop Close gardens by the previous owner, Mr. Seymour. The permission granted may have been oral or in writing. It may also be granted expressly or impliedly, there are no formalities required, R (Beresford) v Sunderland CC[1]. Common law allows an individual to use consent as a defense for trespass which is considered a tort.

In this case, Mr. Trudeau may file a suit against Jones for trespass on private property. Under tort law, trespass on land occurs when an individual goes onto land that belongs to another person without that person’s permission. In this case, permission/license implied or otherwise, was granted to Jones by the previous owner. In most cases, licenses are irrevocable unless there is a flaw in the agreement or the permission was granted by way of contract. Consent plays an important role in any trespass case. In this case, the license is viable unless the defendant violates the term of the license by exceeding the terms set out in the license. In most cases, the person who gave it in the first place is the only one that can withdraw consent. In this particular case, Mr. Seymour disappeared without saying anything to this effect. Furthermore, there was no contract between Mr. Trudeau and the seller of the property that stated anything to such an effect. The kind of license in this case can be described as a bare license. A bare license comes in where gratuitous permission is granted.

Trespass takes place where the consent granted by the owner of the piece of land is removed. Common law has been able to establish that bare license can be used as defense against trespass. In Goldsack v Shore (1950) 1 KB 708, the court determined that indeed when granted permission to enter into another persons property by that person then that does not amount to trespass. However, case law also establishes scenarios where a bare license amounts to trespass. In Hillen and Pettigrew v ICI (Alkali) Ltd[2], Lord Atkin stated that ‘So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.’ [3] This means that the court recognizes that at some point, permission can be granted for an individual to trespass, however, if the permission granted is taken advantage of, then it can be revoked. Similarly, case law has established that if an individual enters the place that they have granted permission to enter for other reasons other than those he was given permission to enter for in the first place, bare license would be revoked and the action would amount to trespass, R v Pratt[4]. Finally, the courts have set out one last condition that may negate a bare license situation. This was outlined in R v London CC, ex p Corrie[5]. In this case judge Darling, established that where it is known, or understood, that the occupier of the land would not have given permission then would amount to trespass.

In this case, all Mr. Jones has to prove to the court is that the previous owner, to be able to use the garden as a path, had indeed granted him permission. Once this has been established, he has to prove that he has been using the garden as a path and that he has not used it for any other purpose other than that spelt out in the agreement that he had with the previous owner. It is also his duty to prove that the previous owner had not revoked the consent.

PART B

Possible claim of Mr. Jefferson

Jefferson had an oral agreement with the previous owner Mr. Seymour. The agreement was that the previous owner would sell the property to him. In the first instance, Jefferson had made the offer to buy, but there had been no acceptance on the part of Seymour, who had not been ready to sell the property. In the second instance, four years later, Seymour had made an offer to sell the property to Jefferson. Jefferson had accepted the offer and stated that he had instructed his lawyer to complete the paperwork. This is in effect an oral contract between the two parties[6]. There is also the fact that Seymour indicated that the offer was valid for the next ten years.

Based on the facts provided, there is likelihood that Mr. Jefferson may take the legal action of applying for an estoppels order[7]. The fact that the agreement was that the offer was up for ten years means that there was an implied contract. In this case, the Estoppel likely to be relied upon is that of a promissory[8] nature. Under Equity law, promissory Estoppel arises when one party gave a promise and the other party relied upon the promise and acted upon it. Equity law considers Estoppel as a shield in law[9]. Thus, Jefferson could argue that the previous owner had made a promise to him and that that promise had not been fulfilled. Lord Denning set out the conditions in which estoppel way be applied in Central London Property Trust Ltd v High Trees House Ltd[10]. In this case, Denning established that promissory estoppel requires that 1) there was a promise made either by way of words or by way of actions, 2) that their was a change in the position of the promise because of the promise and finally that 3) it would be unfair if the promisor was to go back on their promise. In this situation, Jefferson would have to lose the house that he had really wanted. The law is clear as to the fact that promissory estoppel may in fact be considered in situations where a pre-contractual exist. Lord Denning in Brikom Investments Ltd v Carr [11]established that promissory estoppel may arise where promises were made in the midst of negotiating a contract[12].

Two factors have been put into consideration before one can be able use promissory estoppel in a court of law. The first is the fact that generally, estoppel is used as can only be used as a defense. The general doctrine is that promissory estoppel can only be used as a ‘shield not a sword’. Thus, the doctrine cannot be used to bring an action against a person in a court of law. Generally, estoppel is used in evidence to prevent the promisor from denying the truth of the existence of the promise that the promisee had relied on[13]. However, the court has changed this position in Evenden V. Guildford City AFC[14] where the court held that ‘promissory estoppel can be a cause of action’ in a court of law. The courts are fast in outlining the fact that whiles the promise need not be expressly made; there is need for the promise made to be precise and unambiguous. In this case, promissory estoppel is in order because of the fact that the house had been promised to Jefferson and an oral contract had been made, thus it can be concluded that there was a promise made in the cause of contract negotiations that was not fulfilled.

The second factor to determine before using promissory estoppel is the fact that it is a temporary measure which can stop at any given time. Estoppel does not extinguish the original rights of the parties involved in the suit. The position of the court on this matter was established in Tool Metal Manufacturing v Tungsten[15], where the court held that estoppel merely suspended the legal rights of the parties rather than extinguish them.

Alternatively, Jefferson may opt to sue for anticipatory/repudiated breach of contract. This kind of breach occurs where a promise was made then a party declares that it does not intend to fulfill their obligations under law. the courts have established that where a repudiated breach occurs, the performing party to the contract is usually excused from their obligations[16]. The courts position on the matter was first established in Hochster v De La Tour[17][18]. In this case, the court found that in the event that a contract is repudiated before the performance date, the offended part y may claim for damages immediately. Lord Campbell in this case stated that ‘If a man contracts to execute a lease on and from a future day for a certain term, and, before that day, executes a lease to another for the same term, he may be immediately sued for breaking the contract’[19]. Thus, the fact that there was a contract between the two parties and the previous owner negated on the promise made gives Jefferson the right to seek compensation from the courts for breach of contract.

 

 

 

PART C

Possible claim of Mr. Adam

Claims from Adam could arise from the fact that there existed a six year lease contract between him and the previous owner. Under English property law, the leaseholder owns holds the lease to the property of the freeholder. This is like renting the property for a given period. Under English common law, there are number of statutes that determine how leases are handled in the United Kingdom. These include; Landlord and Tenant Act 1954, Law of Property Act 1925 and Housing Act 1988. Recently, leases and their definition are created under Common hold and Leasehold Reform Act 2002 s 17. The law on leases is the same as any other contract law. This means that breach of any law is results in penalties for both parties. The law requires that all leases under seven years be written but not necessarily registered. In most cases, a lease divides property by time. It also seeks to protect the tenants and his interests. The Law of Property act 1925 outlines the terms that dictate that a tenant not be unfairly dismissed because in most cases the tenant has lower bargaining power than that of the owner. Case law sets out the conditions of required in determining the definition of leases. In Street v Mountford[20], the court determined what a lease is under common law and equity.

The fact that the lease is contract like any other, there are a number of considerations that have to be put in place. The first is that if the contract is terminated, then the client can sue for breach of contract by the owner. This is more so in a situation where the tenant has not been fore warned of the new developments or if they are not given adequate reason for the termination of their contract. However, the law does give the property owner lee way by providing them with the opportunity to apply for the forfeiture of the lease. In this case, the owner has the right to terminate lease where the lease holder has breached one of the terms of the contract. In this case, the lease had stated that the property would not be used for any business which Mr. Adam was violating by selling drugs. Under the Law of Property act 1925 s 146, once the tenant has breached a term of the contract the leaser must serve a notice to the tenant specifying the breach, expressing that the beach be remedied and asking for a fine for the breach.  However, there is the case that the house had shifted owners. In this case, the lease automatically transfers to the new owner who can be sued by the tenant. Thus, the tenant is likely to take a claim to court for breach of contract. The other likely remedy that he may seek is that an injunction that may be strengthened by application to be a tenant by estoppel. An application to be a tenant by estoppel may arise from the fact that there has been a contract that was being breached. This is because he was fulfilling his side of the bargain by paying the rent and that the contract had stipulated that he was to remain in the premise for six years yet he was being evacuated from the very same premises. Under lease law, prove of the existence of a lease does not have to include the existence of consideration which in this case is the rent. The courts have established that even without the rent and with the existence of Tenancy by estoppel will be able to give the tenant permission to stay in the residence until a solution has been found. Law of Property act 1925 s 146 also allows for a special notice that the tenant can apply for that will require that the property owner require a special court order to be able to use force in the eviction of the tenant. The tenant is likely to apply to court for an order that requires that the property owner give reason for the eviction, if the new owner decides to evict him.

 

Situation if the sale was in 2003

The situation would have been totally different if the sale were conducted in February 2003. This is because; there would have been no verbal agreement between Seymour and Jones. Thus, any attempt to use the garden as a path would have amounted to trespass. The verbal contract that was created between Seymour and Jefferson would not have taken place if the sale had been conducted in 2003. This is because there would be no offer or invitation to treat. Finally, a 2003 sale would ensure that there was no lease on the property to Adams. Thus, there would be no breach of the lease contract that may have been created between the two parties. This would also have averted the potential confrontation between all the parties.

Conclusion

Land law in the United Kingdom is governed by common law as well as equity and case law. Equity was created so that it can be able to mitigate the harshness of common law. Land law is therefore such that the interests of both parties can be fairly mitigated. In this case, it is clear the person with the most liability is Mr. Seymour. However, he is nowhere to be found. It is also clear that the property was transferred to Mr.Trudeau which shifted the burden to him. The law examines both sides of the coin; it looks at the position of both the accuser as well as the accused. Thus, while the law might seem as though it is on the side of the complainant, it will always examine the position of the accused.

 

 

References

Cartwright, John, and Martijn Willem Hesselink. Precontractual Liability in European Private Law. (Cambridge, UK: Cambridge University Press, 2008).

Clarke, Alison, and Paul Kohler. Property Law: Commentary and Materials. (Cambridge [u.a.]: Cambridge Univ. Press, 2005).

Cooke, Elizabeth. Land Law. (Oxford, U.K.: Oxford University Press, 2012).

Cullingworth, Barry, and Vincent Nadin. Town and Country Planning in the UK. (London [u.a.]: Routledge, 2006).

Furmston, M. P., G. C. Cheshire, and C. H. S. Fifoot. Cheshire, Fifoot and Furmston's Law of Contract. (Oxford, N.Y.: Oxford University Press, 2006).

Gray, Kevin J., and Susan Francis Gray. Elements of Land Law. (Oxford: Oxford University Press, 2009).

Gray, Kevin J., and Susan Francis Gray. Land Law. (Oxford: Oxford University Press, 2007).

Hogg, Martin. Promises and Contract Law: Comparative Perspectives. (Cambridge: Cambridge University Press, 2011).

Holdsworth, William Searle. A history of English law. (1922) Vol. 1. Methuen,.

Le Sueur, Andrew. Building the UK's New Supreme Court: National and Comparative Perspectives. (Oxford [u.a.]: Oxford Univ. Press, 2004).

MacKenzie, Judith-Anne, and Mary Phillips. Textbook on Land Law. (Oxford: Oxford University Press, 2012).

McFarlane, Ben, Nicholas S. Hopkins, and Sarah Nield. Land Law: Text, Cases, and Materials. (Oxford, U.K.: Oxford University Press, 2012)

Reid, Kenneth G. C. The Law of Property in Scotland. (Edinburgh: Butterwoth Law, 1996).

Sexton, Roger, and Barbara Bogusz. Land Law: Text, Cases, and Materials. (Oxford: Oxford University Press, 2011).

Simpson, Alfred William Brian. "An Introduction to the history of the land law." An Introduction to the history of the land law. (1961).

Stuckenschmidt, Heiner, Erik Stubkjær, and Christoph Schlieder. The Ontology and Modelling of Real Estate Transactions. (Burlington, VT: Ashgate, 2003).

 

 

[1] (2004) 1 AC 889

[2] (1936) AC 65 HL(E)

[3] Also cited in British Railways Board -v- Herrington [1971] 1 All ER 749, and, Tomlinson -v- Congleton Borough Council and others [2003] 3 All ER 1122

[4] (1855) 119 ER 319 at 321

[5] (1918) 1 KB 68 at 73

[6] Any contract needs to satisfy three conditions to be able to be deemed valid. These are an offer made, acceptance as well as consideration. The fact that Seymour made an offer to sell the house for a specific amount of money to Mr. Jefferson who accepted the offer meant that an oral contract existed between the two

[7] Estoppel arises under common law where an individual causes another party to act on an assumption as part of a relationship. Estoppel compels that individual not to depart from the agreement.

[8] The doctrine of promissory Estoppel was first established in Hughes v Metropolitan Railway Co (1876-77) LR 2 App Cas 439 UKHL 1 and was later developed by Lord Denning in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

[9] Combe v Combe [1951] 2 KB 215 CA

[10] [1947] KB 130

[11] [1979] 2 All ER 753 CA

[12] The courts held similar positions in Durham Fancy Goods V. Michael Jackson (1969) 2 QB 839

[13] Lord Denning in Combe v Combe [1951] 2 KB 215 CA said that “The principle does not create new causes of action where none existed before. It only prevents a party from insisting on his strict legal rights when it would be unjust to allow him to enforce them”.

[14] (1975) QB 917

[15] [1955] 1 WLR 761 HL

[16] The promising party can retract the repudiation so long as there has been no material change in the position of the performing party in the interim. Thus, a retraction of the repudiation restores the performer's obligation to perform on the contract

[17] [1853] EWHC QB J72

[18] Subsequent cases on the matter include Vitol SA v. Norelf Ltd or The Santa Clara) [1996] A.C. 800; [1996] 3 W.L.R. 105; [1996] 3 All E.R. 193

[19] Ford v. Tiley, 6 B. & C. 325

[20] [1985] 2 WLR 877