Land Law In Australia-assignment

Overriding interest on a property      The   land registration Act 2002 recognizes three categories of interests and rights in land namely legal interest, equitable interest and Unregistered interest/overriding Interest.  Legal interest is the one recognized by the law and protected on the land register. Equitable interest arises where a person has no legal title to the property but has beneficiary interest in it therefore giving them right to acquire legal   title[1].  In regard to Carol’s case scenario,  her ex partner  hold the  legal interest to the property in question I.e. Green acres, simply because it is registered in his own name.  However, holding legal title to the property does not make him the only person who has interest in the land.   Carol also has equitable interest in the property by virtue of the monetary contribution she made toward the purchase of the property. Both legal interest and equitable interest are considered proprietary interests[2] and therefore carol has the right to acquire legal title.                A person who has an interest in land is required to protect it by entering it in the register. The basic rule is that a registered interest should be given priority over unregistered one[3]. However, an exception to this rule is provided in schedule three of the Land Registration Act 2002.   Schedule 3 of the LRA 2002 provides that   in some cases, some unregistered interests in land   should be give priority over the registered interests. These interests are commonly referred as overriding interests[4]. However, for the principle of overriding interests to apply, two conditions must be met.  First, the interest to the land must be proprietary interests as was held in the case between National Provincial Bank v Ainsworth (1965)[5] . Based on the decision made in a case Kingsnorth Finance Co Ltd v. Tizard (1986)[6], Carol has proprietary interest in the property by virtue of the monetary contribution she made. The second condition is that of ‘actual occupation’.   An individual who is pursuing the application of the principle of overriding interest must have an actual occupation of the property.  Although there is no statutory definition of Actual Occupation, case law shows that actual occupation means continuous physical presence[7].  In regard to carol’s case,   there is actual Occupation to the property since she has lived in the property for a while, her personal belonging and items are stills in the property  and are obvious  upon inspection and she has the intention to return  on the property. In conclusion, carol has both proprietary interest in the property and her actual occupation is obvious upon inspection as stipulated under schedule 3 of land registration Act 2012 and therefore, she should pursue  the  application of overriding interest in case the Loancaster  building society continue with its plan to repossess the property  Fixture and Chattel in a property Carol’s second case involves chattel and fixtures in property.  Chattels are defined as personal property[8]. On the other hand, Fixture are those items or objects which merges with the freehold either by their physical bond to the land or by their purpose in enjoyment of the land[9].  Chattel can be removed from the land by the owner when selling the land unless expressed otherwise in the contract. On the other hand, fixtures are part of the land and as such they cannot be removed from the land when transferring freehold estate from the seller to the buyer unless there is an expressed agreement to that effect in the contract[10]. In regard to Carol’s scenario, there is no such expressed agreement and therefore carol chances of having strong claim on the removed items i.e. sculpture of a fisherman and a lantern depend on whether they are fixture or chattels. To determine whether the sculpture of a fisherman and the lantern are chattels or fixtures two tests are used. The first Involve the physical degree of annexation. An item which is annexed to the land is presumed to be a fixture as it was held in the case Elitestone v Morris [1997][11] case where the judge stated that a house which was attached to the land by concrete floor and pillars was a fixtures and not a chattel. An item that rest on its own weight is therefore a chattel not a fixture. The second test involves the deemed purpose of the annexation. If the purpose of annexation is to contribute to the enjoyment and use of the land, it is presumed to be fixture.[12] Based on the facts highlight above, the sculpture of a fisherman is a chattel since it was not annexed to the land. It rested on its own weight on a concrete base and therefore carol can’t have strong claim against it.  This is in line with a decision made in a case law where a white Mable statute of an athlete was considered to be chattel simply because it rested on its own weight on plinth[13].  On the other hand the Latern is a fixture simply because it was annexed in the property to contribute to the enjoyment and use of the land.  Right to Items found on surface or underneath the land Carol’s third case involve item found on the surface of the land.  Generally, the principle of property law state that if the true owner of a found item is unidentifiable then the person who has legal right and possession to the land in which the item was found is entitled to that item given that it does not qualify as treasure trove as stipulated in the treasure Act  1996. This principle is well reflected in some cases. For instance,  in the case Waverly Borough Council v Fletcher [1995] it was held that  since the  true owner of the gold brooch found by Fletcher was not identified, Mr Fletcher can’t claim it ownership  simply because it was found in a land owner by  Waverly Borough council and  therefore the council was entitled  to the  item[14]. The facts in the case above therefore shows that carol and his new partner, Tim, cannot claim ownership to the coin they found on the stately home. If the coins meet the condition stipulated in Treasure act 1996, they belong to the crown and carol and Tim have the obligation to submit it to the relevant authority for such determination to be made.  If the coin fail to meet the treasure Act 1996 criteria, the owner of the stately home will be entitled to the coins. Referencing Berkley v Poulett [1976] EWCA Civ 1 Elitestone v Morris [1997] 1 WLR 687 Lloyds Bank v Rosset [1989] Ch 350 Waverly Borough Council v Fletcher [1995] 4 All ER 756 Williams & Glyn’s Bank v Boland [1981] AC 487 Bray, J. (2016). Unlocking land law, Routledge Gray, K., & Gray, S. F. (2011). Land Law, Oxford: Open University Press  Thompson, M, P. (2012). Modern land law, Oxford: Open University Press [1] [2] [4] Judith Bray, Unlocking Land  Law (Routlegde 2016) [5] National  Provincial Bank and  Ainsworth (1965) AC 1175 [6]Kingsnorth Finance v Tizard [1986] 1 WLR 783 [7] Lloyds Bank v Rosset [1989] Ch 350 (HL) [8] Kevin Gray and Susan Francis Gray, Land Law (OUP 2011). [9]Ibid [10]Ibid [11] Elitestone v Morris [1997] 1 WLR 687(HL) [12] Kevin Gray and Susan Francis Gray, Land Law (OUP 2011). [13] Berkley v Poulett [1976] EWCA Civ 1 [14] Waverly Borough Council v Fletcher [1995] ER 756