STUDENT ID: 202101053

COURSE: Land Law

DUE DATE: 17th March 2023

LECTURER: Mrs. N. C. Lungu

Facts:

Edgar inherited 'The Shambles' property in 1995, which he sold in 1998 for £120,000 to purchase
'Hanging Gardens', a large residential house with a florist's shop attached. He took out a
mortgage of £300,000, and the property was registered in his name. Angelica paid for the legal
costs, stamp duty land tax, land registration fees, and the removal firm's costs and purchased new
carpets and curtains. Initially, Edgar and Angelica shared household expenses, but after a few
months, Angelica resigned from her job to work in the florist's shop without pay for the first ten
months. In 2002, they had a child, and Angelica became a full-time mother while doing
housework, decorating, and shopping. In 2004, Angelica used the proceeds of sale of her car to
pay for a new central heating boiler and additional radiators. Edgar left 'Hanging Gardens' two
months ago after an argument and intends to sell the property. Angelica believed the property
was jointly owned.

Legal Issues:

Whether or not Angelica and Edgar possess joint ownership of the Hanging Gardens property.

Whether or not Angelica holds any equitable stake in the property, considering her contributions
to the fixtures and fittings.

Whether or not Angelica's claim to an interest in the property under land law would be affected if
she and Edgar had gotten married in 1998.

Rule of law:

According to the Lands and Deeds Registry Act of Zambia,1 two or more people can jointly own
land or an interest in land either as joint tenants or as tenants in common. Joint tenancy means
that the parties own the property together, and if one of them dies, their share automatically
passes to the surviving joint tenant(s). On the other hand, if the parties own the property as
tenants in common, each person owns a separate and distinct share in the property, which can be
passed on to their heirs or beneficiaries upon their death.

1
Section 51 Subsection 1 Chapter 185 of the laws of Zambia
The Act requires that the type of tenancy held by the parties be expressly stated in the document
that creates the tenancy or in a separate agreement. If the document is silent on the type of
tenancy, the tenancy is presumed to be a tenancy in common.

Analysis

The four unities of joint tenancy are:2

Unity of Time: All joint tenants must acquire their interest in the property at the same time.

Unity of Title: All joint tenants must acquire their interest in the property by the same instrument
or deed.

Unity of Interest: All joint tenants must have an equal interest in the property. Each joint tenant
must have the same share, with the right of survivorship.

Unity of Possession: All joint tenants must have an equal right to possess the whole property. In
other words, no joint tenant has exclusive possession of any part of the property, and all joint
tenants have an equal right to occupy and use the entire property.
Joint ownership of Hanging Gardens property. Angelica and Edgar purchased the property
with the proceeds from the sale of ‘The Shambles’ property, which Edgar inherited from his
brother. The property was registered in Edgar's name alone, but this does not necessarily mean
that Angelica does not have any claim to the property. It is possible for a property to be owned
jointly even if it is registered in only one person's name. The key issue is whether the parties
intended to hold the property jointly or as tenants in common. The intention can be inferred from
their conduct, the nature of their relationship, and the contributions made by each party to the
purchase and maintenance of the property. Therefore, it is a question of fact whether Angelica
and Edgar intended to hold the property jointly or not.

Equitable stake in the property. Angelica has made contributions towards the legal costs,
stamp duty land tax, land registration fees, and the removal firm's costs, and purchased new
carpets and curtains for the property. She also paid for a new central heating boiler and additional
radiators in 2004. These contributions may give rise to a claim for an equitable stake in the
property, even if she is not a registered owner. However, whether she has a claim to an equitable
interest in the property would depend on the nature of her contributions, whether there was an
2
Fredrick S. Mudenda, LAND LAW IN ZAMBIA: Cases and Materials (The University of Zambia press, 2007)
agreement or understanding that she would have an interest in the property, and whether her
contributions were made on the basis that she would acquire an interest in the property.

Upon research, the author came across a principle called ‘Equitable Title.’3 Equitable title refers
to the right to receive the benefits of ownership of a property or asset, even though the legal title
to the property may be held by another party, in this case, Edgar. In other words, it is the right to
use and enjoy the property and to receive the income and profits generated by it.

Equitable title is a concept that arises in the context of trusts, where the legal title to the property
is held by a trustee, but the beneficial interest in the property is held by the beneficiary. The
beneficiary has an equitable title to the property, which gives them the right to receive the
benefits of the property, such as income or rent, and to direct the trustee in how to manage and
dispose of the property.

In the case of land law, equitable title may arise in situations where there is an agreement or
arrangement that gives one party the right to use and enjoy the property, even though the legal
title is held by another party. This may occur in situations where there is an informal agreement
or understanding between the parties, or where there is a dispute over the ownership of the
property that is yet to be resolved by a court

Effect of marriage on Angelica's claim. If Angelica and Edgar had gotten married in 1998,
Angelica's claim to an interest in the property would depend on the timing of the contributions
made by Angelica and the nature of the agreement between them. If they had gotten married
before the purchase of the property, then the presumption of resulting trust may apply, and
Angelica may have an equitable interest in the property. If they had gotten married after the
purchase of the property, then the presumption of advancement may apply, and Edgar may be
deemed to have gifted the property to Angelica. However, the existence and nature of any
agreement or understanding between them would be a critical factor in determining Angelica's
claim to an interest in the property.

Based on the information provided, Angelica does not appear to have a legal interest in the
property because it was registered in Edgar's sole name. However, she may have an equitable

3
LawPath, 'What is an Equitable Interest?' (22 October 2020) https://lawpath.com.au/blog/what-is-an-equitable-
interest accessed 17 March 2023.
interest in the property based on the principles of common intention constructive trust and
proprietary estoppel.

Common intention constructive trust is a trust that arises when two or more people agree to own
property together, but the property is only registered in one person's name. In this case, Angelica
and Edgar had discussed their plans for the property and the florist shop together. Angelica also
paid for some of the expenses associated with the purchase and upkeep of the property.
Therefore, Angelica may be able to argue that there was a common intention that she would have
a share in the property.

Proprietary estoppel is a legal doctrine that allows someone to claim an interest in property if
they have relied on a promise or representation made by the owner of the property to their
detriment. In this case, Angelica may be able to argue that she has an interest in the property
because she gave up her job to work in the florist's shop and did not receive any pay for the first
10 months to help establish the business. She also contributed to the upkeep of the property by
paying for the legal costs, stamp duty land tax, and land registration fees, as well as purchasing
new carpets and curtains.

If Angelica and Edgar had married in 1998, it may have made a difference to her claim to an
interest in the property. In the event of a divorce or judicial separation, the court would have the
power to divide the property in a way that is fair to both parties, regardless of whose name it is
registered in. However, without a marriage or civil partnership, Angelica's claim would depend
on whether she can establish a common intention constructive trust or proprietary estoppel.

In summary, while Angelica does not have a legal interest in the property, she may be able to
claim an equitable interest based on the principles of common intention constructive trust, or
proprietary estoppel. If Angelica and Edgar had married, it may have strengthened her claim to
an interest in the property through the courts. In the case of the Attorney general v Seong San
Company Limited,4 the supreme court brought to light that constructive trust is in fact a product
of equity and may be upheld for the sake of justice and the common good. A similar statement
was first made in the case of Bailes v Stacey & Simoes.5

4
[2013] ZMSC 16
5
[1986] ZMSC 20
 Bibliography

Cases

Attorney general v Seong San Company Limited [2013] ZMSC 16

Burton v Camden LBC [2000] 2 AC 399

Rita Miller v Samson Kachepa 2014/HP/1051

Bailes v Stacey & Simoes [1986] ZMSC 20

Legislation

The Lands and Deeds Registry Act Chaptern185 of The Law of Zambia

Books

Fredrick S. Mudenda, LAND LAW IN ZAMBIA: Cases and Materials (The University of
Zambia press, 2007)

Online Resources

LawPath, 'What is an Equitable Interest?' (22 October 2020) https://lawpath.com.au/blog/what-

is-an-equitable-interest accessed 17 March 2023.