Law of Immoveable Property and Conveyancing - Institute of Law ...

Advocates & Solicitors Examination Civil & Criminal Procedure October 2007

Advocates and Solicitors Examinations Common Examinations Law of Immovable Property and Conveyancing June 2010

Important Notes

1.

Please write legibly - unreadable papers may result in lost marks

2.

Your written paper will have to be photocopied so please:

Write in black ink



Write well within the reasonable margins

3.

Write your assigned number at the top left hand corner of each page and the page number in the top right hand corner of each page (remembering to keep within the photocopyable margins, i.e. 1" all round each page)

4.

Number your answers and start each new answer on a new page

5.

Write on one side of the paper only

6.

Answer any three questions from Part A; and Any two questions from Part B.

7.

All questions carry equal marks.

8.

Support your questions wherever possible by reference to statutory judicial or other authority. Give reasons for your answers.

9.

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Time allowed: 3 hours.

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Immovable Property and Conveyancing June 2010 Part A: Property Law Question 1. (a)

You are asked by Fagin Finance Ltd to advise on the following letter which it has received from Wilkins Micawber. Dear Sirs, Thank you for your agreement to grant me a loan subject to my providing sufficient security. I have the following which I can offer – i.

Flat 1, Barchester Towers, which I bought by share transfer. It is currently leased, but the lease will come to an end next year.

ii.

Flat 5, Bleak House, which I and my wife Emma bought as a flying freehold.

iii.

A contract lease of The Old Curiosity Shop. This lease is for a term of twenty-one years and was granted to me in 2000.

iv.

A rente charged on a field in St. John which I inherited on the death of my late aunt. I have not been paid this rente for the last five years, but I believe that it is still due.

v.

Prospect Place, which I inherited on the death of my mother. My father has the life enjoyment of it, but he is elderly and not in good health.

Yours faithfully, Wilkins Micawber. Advise Fagin Finance which, if any, of the above can be used to secure a loan on by hypothec. (b)

Your client Edward Murdstone enjoys by droit de viduité the property known as The Rookery, which belonged to his late wife Clara Copperfield. The nupropriétaire is David Copperfield, Clara’s son by her first marriage. A recent survey was carried out for insurance purposes. It shows that –

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the timbers of the roof have been attacked by dry rot and the entire roof will have to be replaced.

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there are some cracked window-panes and broken sash-cords in a number of windows.

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a window has been left broken and rain has come in through it and seeped into the external wall for so long that the mortar has crumbled and a section of the wall will have to be replaced.

Edward has received a letter from David’s lawyers telling him that he is liable for the cost of all these repairs. Advise him. Question 2 Peter Piper owns Nos. 1, 2 and 3 Marine Terrace, St. Helier. He has let all three and is having trouble with all of them. He asks you to advise him on the following problems. a)

No. 1 Marine Terrace was leased to Lucy Locket in March 2000 for a term of nine years to expire on the 31st day of March, 2009. It was a term of the lease that the premises should not be used for any commercial purposes. The rental was payable quarterly in advance on the usual quarter-days and was regularly paid by standing order during the currency of the lease. Subsequent payments were made by cheque on the 25th March, 24th June, and 25th December, 2009. Peter banked the cheques and left Lucy in occupation of the premises. In March 2010 Peter found out that Lucy was using the premises to run a marriage bureau and told her to leave at once. When payment of a quarter’s rent arrived on the 25th March, he banked it but told Lucy that she must leave on the 24th June 2010. Lucy claims that she has a new quarterly lease and that as Peter has accepted rent after he found out about it he can hardly complain now.

b)

No 2 was leased to Bill Brewer for a term of nine years to expire on the 29th September, 2010. The lease contained an option to renew for a further six years which could be exercised by giving notice in writing at any time between the 24th June and the 31st August, 2010. On the 26th June, 2010, Peter received notice in writing from Bill of his wish to exercise the option. Peter does not wish to grant Bill a further six year lease.

c)

No. 3 is occupied by Harry Hawkin, who was employed by Peter in Peter’s building company. His contract of employment dated December, 2003, stipulated a monthly salary. A later agreement dated February 2004 provided that in lieu of a specified proportion of the salary Harry would be entitled to occupy No 3 Marine Terrace for a monthly rental fixed at 50% of the rent which Peter receives for each of Nos. 1 and 2. Peter has given Harry three months’

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notice of the termination of his employment, and told him that he must vacate No. 3 Marine Terrace as soon as his employment comes to an end. Harry has replied that he does not wish to vacate, and is happy to pay the full rental. Advise Peter on the respective rights of the parties. In any case where he can take proceedings, you should identify the nature of the proceedings, but you are not required to describe the procedure. Question 3. (a)

You are consulted by Jane Eyre. She tells you that some years ago she met and fell in love with Edward Rochester. They were unable to marry as Edward had a mad wife at home in the attic whom he was reluctant to divorce for financial reasons. Instead they lived together as man and wife in a property called Villette which they bought conjointment par ensemble. Jane provided 25% of the purchase price, Edward provided 25% of the purchase price, and for the balance they took out a loan from Fagin Finance Ltd for which they were jointly liable. Edward ran a building business and repaid the loan out of his profits. Jane was not able to make any contribution as by mutual agreement she gave up her job to look after Edward’s daughter Adèle. The relationship has soured and Jane would like to put an end to it. She asked Edward to agree to sell Villette and divide the proceeds equally. Edward refuses to sell, but has offered to buy Jane out for 25% of the value of the property. He says that this is only fair, as it was he who paid off the loan. If Jane tries to force him to join in a sale, he will ask for 75% of the proceeds. He will also ask the Court to defer any sale for a year, as Adèle is halfway through her A level studies and a move would be too disruptive for her. Advise Jane as to what steps she can take and what the outcome is likely to be.

(b)

Your client owns a private road over which a number of adjoining properties have a right of way toutes fois et quantes et à tous usages. Driving instructors have taken to using his road to teach their pupils how to park and how to reverse. Your client wants to install gates at the entry to the private road. The gates would be operated by swipe cards, and he would give all those who are entitled to use the right of way a swipe card. Advise him whether he can do what he wants.

Question 4 Prospect Park consists of a row of six detached properties fronting onto a private road. The site of the Park was owned by Thomas Tomkins who in 1930 divided it into four. He sold nos. 1, 2 and 3 as building plots, and retained no. 4 and the road, over which he gave

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each of Nos, 1, 2 and 3 a right of way. In 1938 he divided the garden of No 4 to create two further plots, which he sold as nos. 5 and 6. These were also given rights of way over the private road. The conveyances of 1930 and the conveyances of 1938 all contained a covenant which has been repeated in every subsequent sale of any of nos. 1,2, 3, 5 and 6. The covenant runs as follows – Qu’il ne sera jamais érigé sur ladite propriéte présentement vendue plus qu’une seule maison de residence bourgeoise avec ses offices et dependences lesquelles maison et dependences resteront érigées contigues d’une manière qu’elles se tiendront et joindront ensemble et seront couvertes d’un seul et même toit. In 1950 Thomas sold No 4 Prospect Park. The conveyance did not include an equivalent of the covenant. At the same time he transferred ownership of the private road to the owners of each of nos. 1 to 6 inclusive as owners in common. Your client John Jenkins owns No. 3 Prospect Park. He tells you – a)

That the owner of No. 1, the property nearest the public road, has installed sleeping policemen in the road outside No. 1, and

b)

That the owner of No. 6 has applied for planning permission to carry out internal alterations to his property, the effect of which will be to convert it into two separate units of dwelling accommodation, following which he will live in one and let the other.

John is opposed both to the sleeping policemen and to the conversion of No. 6. He asks you whether he has any right to prevent either or both. Advise him. Question 5. (a)

Your client, André Le Nôtre, is a keen gardener. In his garden there is a magnificent and very rare tree. It is close to a boundary and some branches overhang the property next door. One morning he found to his consternation that Launcelot Brown, his next door neighbour, had lopped off all the overhanging branches. Not only has this spoilt the shape of the tree, but the lopping was so inexpertly done, and with such inadequate equipment, that the tree has become infected with a fungal virus and is starting to die back. Nor is this his only problem. A stream used to run from André’s property into Launcelot’s. André has created a small lake, into which he has diverted this stream. Launcelot has asked that the stream be returned to its original course. Advise André –

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i.

Whether he has any remedy against Launcelot in respect of his tree.

ii.

Whether Launcelot can insist that the stream should flow, as before, from André’s garden into Launcelot’s.

Do you need any further information from André, and if so what? (b)

Your client’s property, La Hauteur, ends in a steep slope which forms part of the garden of La Hauteur. The property to the south, La Profondeur, is situated at the foot of the slope. Recently your client received a letter from the owner of La Profondeur telling him that there has been a minor fall of rock from the slope. There is every likelihood that very soon the slope will collapse onto the garden of La Profondeur, bringing with it a summerhouse which your client recently constructed on the summit of the slope. The letter closes by putting your client on notice that the neighbour will hold him liable for any damage sustained by La Profondeur. Your client tells you that there is nothing he would like better than to stabilise the slope, particularly as the summer-house was an expensive, stone-built construction, but that he simply cannot afford to do so. He asks if he can be held liable for any damage if the slope does collapse onto La Profondeur. Advise him.

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Part B: Conveyancing Question 6 (a)

A few years ago your client, Polly Peachum, lent the sum of £500,000 to Molly Malone. The loan was unsecured. The recession has caused Molly serious financial difficulty. She has only repaid £50,000, and it now seems improbable that she will ever be in a position to repay the balance. She has however offered to sell to Polly her home, the market value of which is £800,000, for £500,000. Polly regards this as the best chance of getting back some at least of her loan, particularly as she fears that Molly may become insolvent in the not too distant future. She asks you to act for her in relation to the passing of the contract of sale. Is there any potential problem to which you should alert Polly?

(b)

You are going with your client through the draft deed of purchase of a house which he intends to buy. You reach a clause which runs – “The Property was sold with all such other appurtenances and dependencies as may attach thereto, in the state in which it was at the date of sale with all its apparent or hidden defects (“vices cachés”), if any, situate in the Parish of St. Helier, Vingtaine de Rouge Bouillon.” Your client asks you to explain why this clause is there and what its effect will be. Please do so.

Question 7 Below is an extract from a draft deed of purchase which your clients are shortly to pass. Please draw a plan showing what the property comprises. The Vendor has sold in perpetuity to the Purchasers the new house (“the House”) and garage (“the Garage”) being NUMBER 31 “LES VAGUES” with the bin store (“the Bin Store”) and paved, landscaped and parking areas to the East thereof, and gardens to the West thereof, the whole as hatched in diagonal lines for identification purposes only on the plan attached to this contract as Schedule 1 and having the UPRN 00000000 (“the Property”) and forming part of the new development called “Les Vagues”; the Property having the party ownership of the gable of the Garage and of the wooden fence of the North, the ownership (without offset) of the gable of the House and garden wall of the South towards the pavement forming part of the pavement and roadway (“the Roadway”) (hereinafter mentioned), the party ownership of the garden walls of the West

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(two sections) and of the South towards the property forming part of No. 32 “Les Vagues”, the ownership of the narrow concrete kerbing at ground level of the East and South-East in a curve towards the parish highway “La Rue des Vagues”, joining by the North to No. 30 “Les Vagues” belonging to the Vendor, by the East and South-East or thereabouts in a curve to La Rue des Vagues, by the West by two sections and by the South to No. 32 “Les Vagues” belonging to Romeo Montagu and Juliet Montagu née Capulet (having right by contract of hereditary purchase dated 14th February, 2010, from the Vendor) bordering on the remainder of the South the Roadway which belongs in common to the owners of Nos. 32 to 43 inclusive “Les Vagues”. The demarcation line separating the Property on its Northern sidein front i.e. to the East of the Garage from the land in front of the Garage forming part of No 30 “Les Vagues” is an imaginary line taken from the centre of the Eastern end of the party owned gable of the North of the Garage extended in an Easterly direction following the centre line of the row of light grey bricks at ground level and continuing on the same alignment until reaching La Rue des Vagues. Question 8 Attached is a sketch of your client’s property, Le Clos du Milieu. A title check shows the following – i.

To the east, Le Clos du Milieu has a droit de jointure against a wall forming part of East Lynn.

ii.

To the south, there are boundary stones which are described as mitoyennes sans relief.

iii.

To the west, Le Clos du Milieu claims nothing. Westward Ho claims la propriété du mur et relief de l’Est vers Le Clos du Milieu.

iv.

To the north, there are boundary stones which are described as mitoyennes.

v.

Access is down a track leading to La Route du Nord, which is also used for access to East Lynn. Neither Le Clos du Milieu nor East Lynn claims ownership of the track, but their respective deeds of purchase give them a right of way comme d’anciennété to come and go over it from the relevant property to La Route du Nord.

Your client wishes to build a house on Le Clos du Milieu. He asks how close he can build to each of the boundaries. He informs you that the wall of East Lynn is six feet high, and the owner of East Lynn has told him that he does not wish to have any adjoining building

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higher than the wall. He also wishes to know whether there will be any problem when he sells the completed house in conferring a right of way over the track.

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