LAW IN MYFANWY HUGHES

QUESTION

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BACHELOR OF LAWS (HONS)
PROGRAMMES AT THE GREENWICH SCHOOL OF MANAGEMENT
Assessment
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Assessment
Question:
Assessment
format:
LEVEL 5 – COURSEWORK ASSIGNMENT’
MODULE: Land Law
SEMESTER: February 2012
The trials and tribulations of Tamara
See attached
Individual written assignment in an essay format
Individual Essay I Students are required to fully reference their work using
footnotes. A separate bibliography/reference pagels must
be provided with texts, papers, articles,’ laws etc. correctly
cited. Refer to the Law Style Manual for further guidance.
An accurate word count must be stated.
All coursework assignments must be accompanied by a full
certificate from Turnitin, clearly indicating the percentage
match with electronic sources, all of which must be fully and
accurately referenced.
Keys Dates:
To be handed out: March 23, 2012
Submission time and date for coursework: April 30.
2012
Submission instructions: Students are required to submit
two identical copies of the coursework to their tutor, before
the deadline, both of which must have a copy of the Law
Programme feedback sheet stapled to the top left hand
corner of the work. Name, date, student number, module
and tutor’s name along with a personal grade
prediction must be provided. No binding of any kind is’
permitted.
An annotated copy of the marked work will be returned to
students.

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document granting the right is described as a deed. There is a signature next to
Clara’s name.
Advise Tamara whether and, if so, how she will be able to prevent any of the
following:
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/’t retreat for its members; and J ~£.oJIf;: (Av. ti K- ~. ~ c/f:-,~
(a) LThe Chur~h of the Latter Day Saints from usin”Q)theRehabilitation Centre as a ,
/ (b) The members of the Church of the Latter Day Saints from using her wood fO)”
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recreational purposes; and Ce.-. ‘6 . ~) (-c.:pfr-.J-(..!J
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(c) The purchasers of the new houses from using her lane? ere. v1 . Lv J) ,~-
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SOLUTION

FACTS OF THE CASE:

Mrs. Myfanwy Hughes, the widow of a coal magnate sold the north-east corner of her plot (Hughes Estate) to South Wales Minor’s Union, for building a rehabilitation center for sick and injured miners. The covenant contained that the area sold will be used only for the purpose of building a rehabilitation center and not for any other purpose. Later in 1972 the property came into the hands of Tamara (T), who due to the substantial tax liability sold most of the estate LIanwrst UDC to build council housing.

As there are no any injured minors for rehabilitation SWMU sold it Church of Latter Day Saints, where the church is planning to use the rehabilitation center as a retreat for its members. When T confronted the caretaker who lives in rehabilitation about his child’s behavior then he argued that staff and the residents of the rehabilitation center have always used the woods for their purpose and original opening of the estates was from woodlands area.

Coed farm is to the south of the estates and they claim that they have the right to drive their vehicle over the lane that cuts across the estate. Tamara discovered that the rights claimed by Coed farm was purportedly given to him by her grandmother Clara and she also found Clara’s name signed next to her name and this document granting this permission is termed as deed.

ISSUES & ADVISE:

A)   In the present case we need to advise T whether she can prevent use of land by Church Latter Day Saints (CLDS) as retreats for its members. T’s grandmother sold this land to SWMU for constructing a rehab to its injured and sick minors in the year 1935 with a covenant. Under Sec 345 Land Title Act and the Sec 27 it can be concluded that the property as a covenant when sold is sold on trust and based on consideration, therefore, Church of Latter Day Saints (CLDS), who want to use it as a retreat for its members has to abide by the consideration. Here we can advise T that she can file a suit against CLDS stating that when her great grandmother sold the north east part if the estate to SWMU she made it clear in the sale deed that the portion sold should be used only as a rehabilitation for the injured miners and not for any other purpose and also the heir after her cannot sell it for any other purpose. This can be further discussed with reference to Shiloh Spinners Ltd v Harding. Under this case the appellant assigned a part of property to T Ltd, which contained a covenant by T Ltd that they or their successors should abide by some stipulations such as fencing the boundaries, repairing the tower which gives complete support, bricking openings to retained roadways & not diminishing support and protection to the retained premises. In the assignment there was even another clause that the premises assigned could be re-entered or re-taken. In course of event the stipulations of the covenant were breached by T ltd who appointed a demolition contractor who had the knowledge of the covenant. By demolishing larger part of the building he had breached the stipulations of the covenant. The present action is the appellant claiming possession of the premises and the respondent disputing against it. The Hon’ble Judge felt that the equitable rights of entry can be considered as principle of equity [1]. After consideration of all the arguments and the references of case laws the appeal of the appellant to re-enter the assigned premises has been approved. If observed along with the discussed case, even the present case involves covenant and sale of land where there is a condition to be followed by the vendors and even their successors because the condition was accepted by the other party and there exists evidence with declared intention of the party that the land can be used only as a rehab. Thus based on this fact she can argue her case. Also, she can argue on the basis that it was a settled land and that settlement was made between her great grant mother and SWMU as to the purpose for which the land needs to be utilized, thus, T as per section 6 of the Land Settlement Act 1925 can argue that the settlement of the land was already made and it can be termed as settlement created by will because the actual owner is no more and that the will created on this purpose can be termed as trust instrument. So, we can advise T that she can prevent CLDS from using the rehab land as a retreat for its members. So with observations of the given facts and the regulations under the Land Title Act and the Land Title Validation Act, Tamara can fight against CLDS for using the sold land for retreat for its members by also referring to the decisions under Hill v Barclay [2] & Blunt v Blunt and Kara v Kara and Holman [3] which state that the contractual promises should be observed and respected. They cannot be simply disregarded as obligations.

B)    Under the facts of the case Tamara was disturbed with the troublesome children of the caretaker who still stayed at the rehabilitation center, when Tamara confronted him for this behavior, than feeling sorry he retaliated in the conversation and pointed out that the staff and residents of the Rehabilitation center have always been using the woods for the purpose of recreation and indeed these are not part of the estates which she owns and the estate she owns begins from the opening on to the woodland area. As discussed earlier in the Shiloh spinners case the party entering into a sale contract with assignment of a covenant should have to abide by all the stipulations of the covenant and should not breach either of the stipulations mentioned in it. She can argue this issue with reference to the judgment given in Sanders v Pope that if the stimulations in the given covenant have been broken willfully no relief can be granted by the court based on whether equity would relive against a willful breach. Thus, it can be noted that for the recreational purpose the CLDS members were planning even to utilize the woods along with the land sold to them by SWMU. It can be understood that from the conventions of the sale made by Mrs. Myfanwy the property in question is assured to be protected in whom so ever hands it rest along with the protection of the neighboring land, and also that the property assured shall not be used or even any erected building in the property cannot be used for any other purpose apart from rehabilitation to comfort of the injured miners or traders or appropriate for the time being. This means that CLDS cannot utilize the property they have purchased for any other purpose apart from rehabilitation or for the comfort of the injured traders. It has no right to use it for the purpose of recreation for its members and not even the surrounding land for any other purpose. So, Tamara has every right to fight against the members of the CLDS under the regulation of Sec.12 Forfeiture on breach of condition as discussed in Barrow v. Isaacs & Son, which allows contains breach of terms of contract or frustration of the conditions of the contract which were not just monetary but were made for performance of a particular act or adaption of some particular conduct. Therefore, there was forfeiture for the breach of condition i.e., adaption of a particular condition – utilizing the land only as a rehab for sick & injured miners, based on which the parties entered into the contract thus T can restrict utilization of the land for the recreational purpose when it had to be used only for the purpose of the rehabilitation for the injured or sick miners. She can argue based on the above observations and also she can base her arguments under the Land Act and the Law of Property Act of 1925, along with the majority judgment in Brace bridge v Buckley under the Landlord and Tenant Act 1730. With the sections defined in the act and the covenant, Tamara can file a suit against CLDS and retrieve the property from being used as a recreational center for CLDS members.

C)   Under the final fact of the case it can be noted that Coed farm is to the south of the estates and they claim that they have the right to drive their vehicle over the lane that cuts across the estate. Tamara discovered that the rights claimed by Coed farm was purportedly given to him by her grandmother Clara and she also found Clara’s name signed next to her name and this document granting this permission is termed as deed. Under rights to deed, the owners of the Coed farm have the right to cut across the estate to join the public road as their deed is registered deed. The owner of the Coed farm have sold their property to a property developer who started building houses and property developer wanted to use the estate lane for the transportation purpose. Tamara cannot make any claim against the deed of the Coed farm but she can argue on the facts of the deeds of her great grandmother that the purchaser of the property are bound to protect the property of the adjoining or neighboring property. Under Sec 27 to 31 of the Conveying and law of Property Act[4] conveyance is specified to be appointment, lease or settlement as discussed under Shove v. Pincke [5] stating that the conveyance[6] that is expressed or intended is an appointment or settlement made in the process of deed and has to be conveyed by the real owner or the succeeding heirs. In the give situation the property developer has to abide by the norms of the deed that has been signed before the claim given in 1960. As discussed earlier he cannot breach the provisions of the covenant and also if he breaches then he has to compensate for the damages as it was a willful breach Also, the unlawful endorsement made by Clara can be termed to have no value because as per the conveyance of the 1935 deed of Mrs. Myfanwy that the vendor or his successor with the title of owner have to abide by these norms but Clara gave the permission instead, thus Tamara can prevent the property developer in using the lane for the purpose of transportation and that she can argue that conventions of the 1935 deed state that the successors have no right to go against the benefit of the neighboring property. She can file a suit requesting the court to prevent the property developer from using her lane for his self-purpose because they have no right to affect the property surrounding them for their benefit. If otherwise they can pay compensation to Tamara and assure her that it can be utilized only for transportation and that she would not be disturbed nor any damage would be incurred to her property. If satisfied with this claim she can allow them to use only on the norms of no damage to her property but legally she has no right to give that permission because she is also binder of her great grandmother’s will. So, here we advise Tamara that based on the convention of her great grandmother in 1935 she will be able to prevent the purchaser of the house in using her property and lane.

Therefore, Tamara can be advised that she can prevent the happening of the issues she is facing with the help of the covenant and the statues related to land where there is specification in application of the covenant and consequences for its breach. The Manitoba[7] , Saskatchewan[8] and Alberta[9] statutes [1] help in enforcement of law to avoid differences in people and maintain equity. These statues are to be strictly enforced all over Australia along with the Halsbury’s Statue which is the authoritative source of statute law and measures the effect of the available act. She has the right to protect the land and also it her duty being the successor of the land to see that the property is utilized as per the norms. She can lawfully avoid the CLDS from using the SWMU property for recreation purpose when it was given to SWMU only for rehabilitation purpose of the miners. Even though the property was sold to CLDS they have to go by the rules of 1935 convention of Mrs. Myfanwy, as she was the real owner and her will is ever effective as per the Transfer of property act and the different conventions and provisions under the Land Act. Based on the 1935 covenant she can avoid the happening of the all events which are troubling her. She has all the rights to safe guard the property and prevents all these happenings.

REFERENCE:

• [1] The Canadian Bill of Rights – a virtual exhibition for Diefenbaker Canada center; http://www.usask.ca/diefenbaker/galleries/virtual_exhibit/bill_of_rights/images/title/main-title.png
• Falconbridge, John Delatre “The Law of Mortgages of Real Estates”, 1999, Canada Law Book Company Limited
• Armour, Real Property, 2nd ed., pp. 366ff.
• Law of Property Act 1925 Sec 205(x) – definition of legal estate and equitable interest; http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/205
• Land Title Verification Act 1994 & Land Title Act 1925,

Queensland, Reprint No. 10A, enforced in  2012; http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LandTitleA94.pdf

• Land Charges Act Sec 10 – Register of land charges;

http://www.legislation.gov.uk/ukpga/1925/22/contents/enacted

• Settled Land Act 1925
• Horsey Estate Ltd v Steiger [1899] 2 QB 79, [1895–99] All ER Rep 515, 68 LJQB 743, 80 LT 857, CA, 31 Digest (Repl) 413, 5422.
• Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, [1874–80] All ER Rep 187, 46 LJQB 583, 36 LT 932, HL, 31 Digest (Repl) 556, 6757.
• Peachy v Duke of Somerset (1721) 1 Stra 447, Prec Ch 568, 93 ER 626, 20 Digest (Repl) 547, 2549.