Real Prop

Estates
DEFINITION
An estate is essentially a conceptual and abstract tool which conveys the notion of ownership by
describing the temporal character of the interest the owner of the estate has.

TYPES
 Freehold

Interests in land that lasts for indefinite periods of time.

o Fee simple
An estate that can be inherited that is not limited to the line of descendants. Has the
right to use and enjoy the land for his life and his heirs enjoy the same privilege. It is
freely alienable (inter vivos or upon death).

Transferring a fee simple

At common law: Must have words of purchase (to X) + words of limitation (and his heirs)

Shelly’s Case- to X for life, remainder to his X’s heirs= to X and his heirs

Gordon v Burke- purported to sell a fee simple but he acquired a life estate due to lack
of words of limitation.

Statutory intervention:

Conveyancy Act (England) added “in fee simple” as being able to transfer fee simple
Jamaica Conveyancy Act s52- no words of limitation need; presumed to have conveyed a
fee simple unless contrary intention expressed.
 Determinable fee simple: A grant coupled with a condition where both the
grant and the condition exist as one clause.

 Fee simple upon condition subsequent: A grant coupled with a condition

where both exist as separate clauses.

 ESSENCE OF THE DISTINCTION:

o Determination: determinable- possibility of reverter, condition
subsequent- right of re-entry
o Effect on entire grant (Legality): determinable- vitiates entire
grant, condition subsequent- turns it into fee simple absolute

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 o Waiver/ Estoppel: condition subsequent- can be estopped based
on time taken by grantor to re-enter
o Strict construction: court slow to permit forfeiture (only
available for condition subsequent.
o Fee tail
An estate that can be inherited but only by heirs of the grantee’s blood.
 Pre de donis conditionalibus- post de donis conditionalibus- fee tail estate
creation
 Ability to alienate- if disposed, heirs could reclaim upon death- Jamaica
Conveyance Act s74- alienable in fee simple
 England, Barbados, Grenada, St. Vincent have abolished fee tail – Barbados all
existing fee tail are recognised as fee simple
o Life Estates
The lowest from of freehold as the estate cannot be inherited. It is still a freehold as the
time isn’t determinable.
 Sa vie/ pur autre vie- pur autre vie is disposable to the first occupier- until
Statute of Frauds 1677- will pass to the deceased’s rep
 Waste: some act or omission which changes the nature of the land, for better
or for worse.
 Voluntary-
 Ameliorating- making the land better
 Permissive – failing to do what ought to be done
 Equitable- even with impeachment of waste
 Leasehold
o Exclusive possession is granted for a term at a rent

TOPIC 2: CO-OWNERSHIP

Co-ownership
JOINT TENANCY

The four unities must be established.

The four unities are:

i. Unity of possession
a. Each co-tenant is entitled to physical possession of the whole land. No division and no
restriction on any co-tenant. A co-tenant cannot claim any part of it.

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 ii. Unity of interest
a. Must have identical interest in nature, extent and duration.
Leek v Clark- In the absence of express authority it was not competent for one of two
joint tenants to surrender rights held jointly, and, therefore, the sale by the husband of
the premises to C without the wife's authority did not terminate the joint tenancy, and,
as against the husband and wife, the plaintiffs were not entitled to possession.
iii. Unity of title
a. All must derive their interest from the same document. This may be implied.
Antoniades v Villiers- truly identical in nature
iv. Unity of time
a. Must manifest at the same time.

Jus accrendi

The right to survivorship. Entitlement is eliminated on his death. Testamentary disposition is ineffectual. Unfair
because joint tenant unable to leave an interest in the property.

Commorientes rule

Simultaneous deaths. Which tenant is entitled to the estate? The younger in age is presumed to have died last.
Law Reform (Commorientes) Act s2

TENANCY IN COMMON
Hold a specific share of the interest in the land, although the land is treated as one unit.

Features:

- No right to survivorship
- Undivided share in land
- No other unities
- Unity of possession

DETERMINING THE TYPE OF RELATIONSHIP

1. PRESUMPTIONS

Common law: presumes a joint tenancy- easier to manage as title eventually passing to one
owner.

Robertson v Fraser- Anything in the slightest degree that indicates an intention to divide the
property defeats the presumption.

Christian v Mitchell Lee- “share, respective, respectively”-words of severance that rebuts the
presumption.

Equity: presumes a tenancy in common-fairer and more just. Only exercised in the following
situations:

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 1. Purchase money provided in unequal shares
Lake v Gibson
2. More than one mortgagee- each person holds a share proportionate to the money
advanced
Morley v Bird- though they take a joint security, each means to lend his own and
take his own.
3. Business assets- the right of survivorship has no place among merchants for the
benefit commerce.
Panton v Roulstone
2. SEVERANCE
Relates to an act which destroys the joint tenancy, converting it into a tenancy in common.
Done by the destruction of the unities of time, interest, title.
Williams v Hensman- may be severed in three ways: 1. Act of a joint tenant upon his own share.
2. Mutual agreement, 3. Course of dealing

Ways of severing a joint tenancy:

i. A joint tenant acting upon his own share
-Must be irrevocable- Alienation by inter vivos disposition
Seunath v Seunath- joint tenant 1 sells his interest to joint tenant 2.
Wright v Gibbons-Joint tenant A and B conveys their share to each other
simultaneously
Gamble v Hankle- even if not enforceable, expresses intention to sever- in
equity- [by an ineffective deed of gift H purported to transfer his share of
property, which he held as a joint tenant with W, to X]
or commencement of litigation
Harris v Goddard- the act of commencing litigation is sufficient to sever joint
tenancy
ii. Mutual agreement
Burgess v Rawnsley – H after realising that R had different intentions
agreed to purchase R’s share. This was sufficient to sever the joint tenancy.
iii. A course of dealing that indicates the shares are to be held as tenants in
common
Seunath v Seunath- some joint tenants had built individual dwelling houses
on property
iv. Homicide – unlawful killing of o joint tenant by another
v. Written notice- beneficial joint tenancy may be severed by notice in writing
to the other joint tenants of an intention to sever.

3. COMMON INTENTION CONSTRUCTIVE TRUSTS

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In a domestic situation the beneficial shares may be distinct from the legal ownership. The legal owner
may be deemed as the constructive trustees.

a. Pettitt v Pettitt – Property conveyed in H and W’s joint name but H paid the full share. H
and W are trustees for H’s full share of the property.
b. Stack v Dowden- Equity follows the law. The law presumes that the legal owner is the
beneficial owner until evidence of change in common intention through interactions with
the property may show otherwise.

RESULTING TRUST

Where property is acquired as an investment, equity determines the resulting trust. Apportionment of
beneficial shares in line with the respective contributions.

Laskar v Laskar-

TOPIC 3: LICENCES

LICENCES
A licence in property law is permission to enter someone else’s land.

BARE LICENCE
Permission to enter someone’s land with no consideration being required. It may implied in certain
circumstances.

 Robson v Hallett, Lord Parker CJ:

“The occupier of a dwelling house gives an implied licence to any member of the public coming
on his lawful business to come through the gate, up the steps and knock on the door of the
house.”
Diplock LJ:
“Such implied licence may be rebutted by express refusal of it.”
 The Calgarth, Scrutton J: When inviting someone into your house to use the staircase, you do not
invite him to slide down the banisters, you invite him to use the staircase in the ordinary way it is
used.
 Commercial setting- implied licence to enter premises
Davis v LIIsle, Goddard J:
“It cannot be denied that where you have a shop with an open door- there is an invitation to all
persons having business with the owners to enter the premises.”
Police officer entered garage with implied consent. This was revoked but officer refused to
leave. He was then ousted from the garage. Held, no assault a reasonable time was given.

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  May be withdrawn at anytime by licensor:
Robson v Hallett:
“A reasonable time must be implied.”
“Revoked automatically upon the death of the licensor”

LICENCE COUPLED WITH AN INTEREST

This refers to a licence where a person has been granted a profit a prendre. So a person may
be granted a right to hunt game from certain land. He has a licence to enter the land and enjoy
the right. This type of licence must be formally granted by deed to be effective in law. It is
therefore incidental to the enjoyment of an interest in land. It is irrevocable and binding on third
parties.

A licence to enter someone’s property is prima facie revocable unless it is coupled or granted in aid of a
legal interest conferred on the purchaser. Parker J, Jones v Earl of Tankerville

The licensor cannot revoke if the licensee would as a result be prevented from exploiting an interest the
licensor had granted to him. Kwai Chung Plasa v Giant Earnings

Generalising, what Parker J is saying is that an irrevocable licence, a licence coupled with an interest,
arises where the licence is required to enjoy a property right (whether in chattels or realty). In relation
to realty, the interest which arises is usually that of a profit à prendre: a right to take from the land
owned by another person part of the natural produce grown on that land or part of the soil. Therefore a
licence which confers a profit à prendre will normally be considered irrevocable, whether in law or
equity (as certain formal requirements are required at common law for the grant of a profit à prendre).

James Jones Sons v Earl of Tankerville- claimants entered into contract with D for the purchase of
timber. By the contract they had the right to enter the property, cut the timber, saw it and remove it.
Claimants started and the Defendant ousted them off the estate. Held, licence irrevocable. An
injunction granted.

Wood v Manley- Hay on Claimant’s land sold to Defendant.C then revoked it. Held for the defendant
although it appeared that the defendat forcibly entered the premises to remove the goods.

CONTRACTUAL LICENCE
Permission to enter a premises in exchange for valuable consideration.

Can be created by express agreement or implied in certain situations,

Tanner v Tanner: the defendant was living in rent controlled accommodation. She gave it up when she
gave birth to twins fathered by the claimant, for a better home supplied by said claimant. The claimant
then sought to have her removed, offering $4000. Held, she could not be forced to leave as there was an
implied contractual licence created. Her consideration being the fact that she gave up her rent controlled
home.

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REVOCATION

Pre 20th century position: Wood v Leadbitter- It was a mere contract that only allowed for contractual
remedies such as damages for breach as it was a right in contract not in land. It could be revoked, which
would amount to a breach.

20th century position:

Hurst v Picture Theatres Ltd.: A cinema goer was asked to leave because the manager of the cinema
thought incorrectly that he had not purchased his ticket. He had refused to leave and was ejected. Held,
he had a contract with the cinema that could not be revoked until the contractual period had ended.
Implied term that the contractual licence would not be withdrawn until the end of the film. The court will
intervene with the equitable remedy of injunction.

INTERVENTION OF EQUITY:

i. Reasonable Notice necessary to revoke:

If there is a specific period for the contractual licence, it could not be revoked. However, if the
length was not specified, reasonable notice is necessary.

Winter Garden Theatre v Millennium Productions: A contractual licence was granted by theatre owner to
a production company to have their productions. The owner then sought to terminate with one month’s
notice, although the contract only allowed the licensee to terminate. Held, it can be revoked with
reasonable notice and one month is reasonable notice.

ii. Specific Performance:

May be granted by the court if the contractual licence is for a short time.

Verrall v Great Yarmouth BC: the conservative party contracted with the council to use the pier for their
annual conference. However due to a change in political majority in the council to the opposing labour
party, they sought to revoke the licence. Held, council ordered to perform the contract.
Denning MR “When arrangements are made for a licence of this magnitude and importance, affecting
many people, the licensors cannot be allowed to repudiate it and simply pay damages. It must be open
to the Court to grant specific performance in such cases.”

Effect on third parties

Orthodox view:

King v David Allen[1916]: King contracted with DA to allow him to place posters on the wall. King leased
the property and lessees refused to allow DA to post. Held, a contract is not binding on third parties,
lessees not bound by the contract.

View since Winter Garden (Lord Denning):

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Errington v Errington [1952]: A contractual licence is a proprietary interest and therefore
could bind a third party. F bought house for son & daughter in law, telling them he would
transfer property to them when they paid off the outstanding loan secured by mortgage; F died
and M sought possession after the son deserted the daughter in law, who continued making
payments on the mortgage.
Somervell LJ” I therefore think the son and his wife were licensees, and for the reasons
elaborated by my brother Denning in his judgment, which I have had the advantage of reading,
there is no legal obstacle to holding that as licensees they are entitled to retain exclusive
possession so long as the instalments are paid.”

Binion v Evans [1972]: When a person sells land stating that the sale be subject to a contractual licence,
it is binding on the third party,

Constructive Trusts view:

Ashburn Anstalt v Arnold[1989]:

 Decision in Errington was correct. It was however made per incuriam as it relates to proprietary
interests created by contract licences.
 It should have been justified on three grounds:
1. Contract to convey house on completion of payments- equitable interest in the form
of estate binding on widow as she wasn’t a bona fide purchaser for value
2. Daughter relied on representation binding on the widow
3. Constructive trust created by the payments of instalments by son and daughter
 Reasoning in Binion v Evans also wrong. The court will not impose a constructive trust unless
the conscience of the estate owner would be affected. Notice is not enough to impugn his
conscience.

Current view:

Lloyd v Dugdale [2001]:

1. No rule that purchaser is bound by sale subject to potentially adverse rights

2. Constructive trust will not be imposed unless the purchaser’s conscience is impugned by not
requiring its imposition
3. In order to determine the purchaser’s conscience: has he undertaken a new obligation rather
than giving effect to the existing one?
4. Contractual licence does not amount to a proprietary interest
5. Proof of lowered purchase price by virtue of purchaser giving effect to pre-existing condition,
may be proof that he undertook a new obligation to give effect to it

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 TOPIC 4: LEGAL AND EQUITABLE INTERESTS

COMMON LAW DIADVANTAGES:

Rules relating to conveyancing: conveyances had to be done in the public eye so as to provide those
living in the area with evidence as to the freeholder

Inability to dispose estate by will: no testamentary disposition could be done before 1540 (Statute of
Wills)

Feudal burdens: heirs had to pay relief to feudal lord upon death of freeholder.

INTERVENTION OF EQUITY:

Doctrine of use

The freeholder (feoffer) would convey his property to a trusted person (feoffee) “to the use” of another
cestui que use). Useful to develop a way to effectively will the property and also to avoid feudal duties
and public conveyances.

Common law only recognised the legal interest held by the feoffee so if the feoffee acted outside of
what was intended, the cestui que use had no remedy. Court of Chancery by the 15 th century began to
protect the cestui que use’s interest, insisting that the feoffee exercise his legal right in accordance with
the use. The cest que use’s rights expanded over the centuries to be more akin to a right in rem rather
what it really was (a right in personam), not limiting his ability to bring action only against the trustee
but to:

 A purchaser with notice (after 1465)

 An heir of the feoffee (after 1483)
 A volunteer ( someone who received the property as a gift)- after 1522
 A squatter (after 1905)

**Could not bring action against a bona fide purchaser for value without notice/ the Chancellor’s darling

Statute of Use
Due to a fall in taxes, this statute was implemented. Its effect being that the legal interest passed to the
cestui que use. Lawyers then created use upon use where a second cestui que use would possess the
beneficial interest, thus effectively circumventing the statute.

TRUST

Expressed or Implied. Implied trusts could be constructive or resulting.

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EQUITABLE INTERESTS OTHER THAN THROUGH EXPRESSED TRUSTS

1. Estate contracts
2. Vendor’s liens
3. Mortgages
4. Restrictive covenants

Estate Contracts

Enforceable contracts to convey a legal estate. At common law, breach= damages, but equity sees each
parcel of land as unique so specific performance is granted. The purchaser has an equitable interest a
‘equity regards as done what ought to be done.’

Walsh v Lonsdale: agreement for lease. Tenant in arrears. Landlord sought to sell chattel. Tenant argued
it was not a lease under statute of frauds. Held that equitable lease had been created which gave the
same rights as a legal lease.

Foster v Reeves:

Wiltshire v Cain:

Vendor’s Liens

A lien is an equitable interest in the land as long as the full purchase price is yet to be paid.

Barclays Bank v Estates & Commercial Ltd:

Mortgages

A mortgage exists where property is used as security for a loan. The modern form of a mortgage
involves the mortgagee (the lender) having a bundle of rights to enforce his security, and the mortgagor
(the borrower) having an equity of redemption, that is an ability to redeem the mortgage after repaying
the principal and interest

Restrictive Covenants

A restrictive covenant requires the covenantor not to do some specified thing, whether building on the
land or using the land for particular purposes. Unlike ‘positive’ covenants, the burden of a restrictive
covenant is capable of 'running with the land', so that successive owners or occupiers are bound by the
restriction. Restrictive covenants are enforced in equity.

PRIOIRITIES

Competing Legal Interests

 “namo dat quad non haber”- a person cannot convey an interest he does not have

Competing Equitable Interests

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  “qui prior est tempore potior est jure”- he who is earlier in time is stronger in equity
Rice v Rice

Earlier legal interest, later equitable interest

 Earlier legal interest will have priority, except:

o Legal interest holder party to fraud which gave rise to the equitable interest
Northern Fire Insurance v Whipp
o Gross negligence by legal interest holder
Walker v Linom
o Gives title deeds to agent who uses it as security for more sums than upper limit. The
recipient must have had knowledge for the equitable interest to prevail.
Brocklesby v The Temperance

Earlier equitable interest, later legal interest

 Only defeated by the bona fide purchaser for value without notice.

Legal rights are good against the whole world; equitable rights are good against all persons except a
bona fide purchaser for value without notice, and those claiming under such a purchaser. Not much
material difference due to the Torrens system. Hard to be without notice.

Bona fide:

Must have exercised good faith.

Midland Bank Trust v Green: genuine and honest absence of notice. Honesty or bona fides is a separate
test to be inquired into.

Pilcher v Rawlins: extent of consideration as well as the presence or absence of notice will shew his bona
fides or mala fides.

Purchaser for value:

Excludes persons who receive the legal estate by gift. “Equity will not assist a volunteer.”
Midland Bank Trust v Green: need not be market value. In absence of statutory curtailment, nominal
consideration will suffice. In this case 5000 pounds were considered to be valuable consideration even
though the property was valued at 40,000 pounds.

Of legal estate:

The BFP must hold the legal estate.

Kingsnorth Trust v Tisard: this includes mortgagees
Wilkes v Spooner & Ano: this includes lessor who receives the surrender of a lease

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Notice:

Actual Notice: actual knowledge of the facts.

Constructive Notice: a person has constructive notice if he could have had knowledge of the facts had
he made the necessary and reasonable enquiries.
Jamaica Conveyancing Act, s 5(1)(a)

Imputed Notice: if the purchaser’s agent has actual or constructive notice, this notice will be imputed to
the purchaser.
Jamaica Conveyancing Act s5(1)(b)

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