Equity and Trusts: Fully Secret and Half Secret Trusts: the difference

Fully Secret

There are no names of trustees or beneficiaries on the will, neither are there terms or any information.

Requires INTENTION, COMMUNICATION and ACCEPTANCE.

Leading case is Ottaway v Norman.

In the event of a failure of the secret trust, the intended secret trustee takes the trust property absolutely.

The trust will fail if the intended trustee dies before the testator.

Half Secret

The name of the trustee will be mentioned in the will but the terms of the trust and the beneficiaries will not be mentioned.

Also requires INTENTION, COMMUNICATION and ACCEPTANCE, however the 'communication' must be before the execution of the will and evidence will be inadmissible if it's not consistent with the terms of the will.

Leading case is Blackwell v Blackwell.

In the event of a failure to create the half secret trust, a resulting trust will be set up for the testator's legatees and next of kin.

The trust will not fail if the intended trustee dies before the testator.

Family Law: Void and Voidable Marriages

What appears to be a ceremony of marriage can either be:

1. A valid marriage
2. A voidable marriage
3. A void marriage
4. A non-marriage, a ceremony of no legal significance

The difference between divorce and nullity: where a marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be bought to an end.

The difference between a void marriage and a non-marriage: a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. With a void marriage the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no power to redistribute property and the couple will be treated as an unmarried couple.

Hudson v Leigh [2009] 3 FCR 401, Bodey J: list of factors indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.

The difference between a void and a voidable marriage: A void marriage is one that has never existed in the eyes of the law. A voidable marriage exists until it has been annulled by the courts; until then it is valid. NB: a child born to parties of a void marriage would be ‘illegitimate’. NB: any person may seek a declaration that the marriage is void, but only the parties to the marriage can apply to annul a voidable marriage.

Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.
(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where- (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

Referring to s.11(c) in which the parties must be male and female, a person can apply for a Gender Recognition Certificate where they wish to legally change gender.

Gender Recognition Act 2004 s.9(1) – “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is female gender, the person’s sex becomes that of a woman).”

Gender Recognition Act 2004 s.2(1) – “(a) has or has had gender dsyphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death.”

Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.


When considering lack of consent, this may be due to duress. Hirani v Hirani suggested that the test for duress should be based on the effect of the threat rather than the nature of the threat. In other words, the threats can be of any kind, but it must be shown that ‘the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual.’ P v R (Forced Marriage) followed Hirani and held that severe emotional pressure could be such as to mean that there was no genuine consent to marry.

Approbation: Matrimonial Causes Act 1973 s.13(1) – “The court shall not... grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court- (a) that the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.”

NB: a decree of nullity will normally not succeed unless bought within three years of the date of marriage (unless the petitioner suffered from some mental disorder).

Effects of a decree of nullity: Matrimonial Causes Act 1973 s.16 – “A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.”

Reform of nullity: in 2008 only 200 annulments were granted out of the 331 petitions. The tiny numbers involved have raised the question as to whether we need such complex law on the area. There have been some debates over whether the concept of voidable marriage should be abolished. The Law Commission argued that voidable marriage should be retained as to some couples, it’s very important that annulment end their marriage and not divorce; e.g. for religious reasons.

Forced marriages: defined as where one person forces another to enter into a marriage without their ‘full and free consent’. Article 12 ECHR protects the right to marry; this includes the right not to be forced into a marriage against your will. A marriage of this type can be annulled on the grounds of no consent but forced marriages do not have their own legislation governing validity. In Re B; RB v FB and MA [2008] 2 FLR 1624 Hogg J described forced marriage as ‘abusive’.

It should be emphasised that there are no legal objections to arranged marriage, where the parents of the parties have a choice in who their child marries.

The Forced Marriage (Civil Protection) Act 2007 enables the court to make ‘forced marriage protection orders’ (FMPOs)

(Notes based on the Herring, Family Law text book)

Succession: Formalities for making a valid will

The formalities provide a safe-guard against forgery, undue influence and also hasty or ill-considered dispositions. Formalities can be justified by the need to provide reliable evidence of a person’s intentions.
Prior to the enactment of s.9 Wills Act 1837, there were different formalities for wills relating to different types of property; thus a will could be invalid for one type of property and valid for another. The idea behind s.9 was to create one system which was easily and generally understood. S.9 has been amended by the Wills Act Amendment Act 1852 and also by the Administration of Justice Act 1982 (s.17).

Thus s.9 now applies to all testators who die on or after Jan 1 1983. There are 5 requirements

1. The will must be in writing – although there are no restrictions as to the materials on which or by which it is written. It may be handwritten or typed. No particular form of words must be used. May be in pencil or ink or a combination (although ink is preferable).

2. The will must be signed – the testator does not need to sign his name, he may just mark the will in some way. Thus initials, stamp or a mark are sufficient if intended to be the signature. This is the case even if the testator’s hand was guided by another person in making the mark. The will may also be signed by another person in the testator’s presence and by his direction – that person may be one of the witnesses. If the will is written on more than one page, all the pages must be attached in some way so as to constitute a single testamentary document; the pages should be securely attached to reduce risk of fraud or accidental loss. The signature may be anywhere on the will document, following the authority of Wood v Smith [1993] Ch. 90 and the Administration of Justice Act 1982; originally it had to have been “at the foot or end” and thus nothing written after it would have been considered.

3. The testator must intend by his signature to give effect to the will – the original s.9 did not expressly state this, it was only implied. Now, the Act requires it to APPEAR as though the testator intended his signature to give effect to the will, but no proof is required.

4. The testator’s signature must be made or acknowledged in the presence of witnesses – two witnesses must be present at the same time; this requirement has not changed since 1837. The witnesses do not need to know that the document is a will, but they must be aware that the testator is writing – being in the same room is not sufficient on its own. The requirement is also not satisfied if the witness leaves the room before the testator completes his intended signature. If the witnesses were not simultaneously present during the testator’s signing of the will, they must subsequently acknowledge it in the presence of one another. For this acknowledgement: the will must have already been signed, the witnesses must see the signature or have the opportunity of seeing it (thus if the signature is covered up this won’t count), and the testator must acknowledge the signature by words or conduct (express acknowledgement is desired but gestures will count). NB: a blind person cannot be a witness or be mentally incapable – when the requirement says the witnesses must be present, this means body and mind.

5. The witnesses must sign or acknowledge – the witnesses need not sign in the presence of each other but must sign in the presence of the testator. The testator must be physically and mentally present and must have at least had the opportunity to witness the sign if he had chosen to look – without this requirement being met before both witnesses have signed the will becomes invalid.  As stated above, a marking is sufficient as a signature and the signature may be anywhere on the will. Originally s.9 required ‘attestation and subscription’ i.e. attest (witness the signature) and subscribe (sign it at the foot/end). Now the witness must either attest and sign, or acknowledge his signature.

OTHER:

Attestation – if he acknowledges his previous signature, he is not required to attest and sign; but if he signs and does not acknowledge, he must ‘attest and sign’.

Presumption of due execution – where a will appears to have been duly executed but there is no proof of due execution, it may be inferred. Harris v Knight (1890) 15 P.D. 170, 179 used the maxim “omnia praesumuntur rite esse acta” meaning of a reasonable probability, and of the proprietary in point of law of acting on such probability.

Attestation clause – s.9 says no form of attestation is necessary although is highly desirable as it facilitates grant of probate. In the absence of an attestation clause, the district judge/registrar must require evidence of due execution of the will.

EU Law: Free movement of workers

Directive 2004/38 and Article 39 EC (now Article 45 TFEU)

No definition of a worker; allows the court to give it a broad meaning and means that member states can’t interpret it restrictively. The courts have said that, with regards workers, any definitions should be given their ordinary meanings and that individuals should be doing ‘genuine’ and ‘effective’ work.

Common law definitions of a worker have been set out in Lawrie-Blum, which said that a worker is someone who provides services for another, for a set length of time, in exchange for money; and Levin which said that part time workers may still be regarded as workers as long as the work isn’t minimal or nominal.

Moving in search of work is an issue not covered by Article 39 (now Article 45) but has been dealt with by the common law. The authority of Royer established that there is a right to reside in search of work, presumably drawing upon general citizenship principles of the EU, drawing on Articles 20 and 21 TFEU. Levin was slightly harsher in ruling that citizens should only be granted a maximum period of 3 months in which to work, on the condition that they can provide for themselves, without being reliant on the host member state’s finances. Finally Antonissen was much more generous in ruling that individuals should be granted the right to reside for a sufficiently long length of time, such that they have a good chance at creating a link with the employment market. The current law in this area is that member states must allow a minimum for 3 months residence for EU citizens to look for work, however the UK is more generous and allows 6 months residence.

Public service jobs are not included under Article 45(4) TFEU as MS maintain the right to reserve certain jobs for their own nationals. But Sotgiu said only the court could determine which jobs are ‘public service’ jobs.

Right of residence will be granted where the individual successfully secures employment. A residency permit lasts for 5 years and is renewable. However, failure to find work or a voluntary unemployment will result in a loss or lack of permit, as demonstrated in Williams where the UK national was denied residency in the Netherlands for unemployment.

Right to reside after employment – concerns the retired and incapacitated workers. Those who have retired from work are allowed the right to continue residing in the host member state on two conditions. Namely, that the individual has reached the retirement/national pension age of that member state, and that the individual has resided in the host member state for the last 3 years, the final year of which he was in employment. Incapacitated workers are subcategorised into those who are incapacitated as a result of work undertaken in the host member state, and those who are incapacitated due to a reason unrelated to the member state. If the condition is the result of work in the member state then the individual is automatically entitled to residency for life and a state pension; whereas if the condition is from some other means, the individual must prove that he has resided in the host member state for the last 2 years.

_________________________________________________________________________________

Dependants of workers have been given rights as an extension of the principle of non-discrimination on grounds of nationality. They are defined in Article 2 Directive 2004/38 to include the following family members: spouses, partners in a registered partnership, direct descendants (children) who are under 21 or who are dependant, and direct relatives in the ascending line including those of the spouse or partner.

Family members does not include co-habitee although in Netherlands v Reed the court made an exception as the national law of the Netherlands did not distinguish between spouses and co-habitees, and therefore they could not deny the right to a non-national where it would have been afforded to a national.

Non-EU national dependants - The case of Metock gave more rights to workers and their families by providing that ANYONE who fell within the scope of Article 2 of the Directive was entitled to reside with the worker, whether they were an EU or NON-EU NATIONAL. Furthermore, it changed the law which had previously required dependants to have prior residence in another member state, and said that the host member state could NOT LOOK AT PREVIOUS RESIDENCE.

The journal by C Costello on Metock said that “...the ECJ’s rights-based approach supports a vision of residence rights in which origins and belonging in the EU are decoupled.”

The journal by S Currie on Metock said that “...the ruling enshrines a more equitable approach to third-country national family members...”

Rights of dependants include the right to EDUCATION, HOUSING, WELFARE and TRAINING. These are particularly advanced by Regulation 1612/68.

Loss of rights will occur either when the worker loses his rights, the dependant is separated from the worker by divorce, or for example the child marrying off.

Death of the worker won’t always result in the dependant losing his rights. He will retain the right of residence if: 1) He had been residing with the worker in the host member state for the past 2 years; 2) The worker was killed by an occupational disease or industrial accident; or 3) He had previously had the nationality of that member state but lost it on becoming a dependant of the worker.

NB: the rights earned in one member state won’t necessarily transfer over if the dependant moves country. For example, pension schemes may be lost on movement abroad.

_________________________________________________________________________________

Limitations on workers and dependants are on grounds of public security, public health and public policy. They are listed in Article 27 of Directive 2004/38. This means that a citizen may be expelled from the host member state if he threatens any of the above. The authority of Rutili has established that a member state will only be able to export a citizen where “his conduct or presence constitutes a sufficiently serious threat to public policy”. This now codified in Article 27.

Van Duyn demonstrated that a country may only deport or refuse entry to individuals, not groups of people. In this case a member of the Church of Scientology was refused entry based on their beliefs and intention to join other members in the host member state.

Finally, criminal convictions won’t always lead to deportation. In Bonsignore the defendant had accidentally shot and killed his brother with an illegally possessed gun. The courts said his presence did not amount to a threat - unlikely to reoffend. However, in Bouchereau the court said it was legitimate to deport the defendant as he had a long history of drug convictions and had demonstrated a willingness to reoffend.

Article 28 of the Directive provides citizens with additional protection by setting out criteria that a member state must consider before authorising deportation.

The Legal Services Act

Check out this article on the effect of The Legal Services Act...

http://www.lawyer-monthly.com/media/Huthwaite.pdf

10 ways to boost a 'Law CV'

1) Join clubs and societies at university or college. They do not have to be related to practices in the legal profession, although your university's Law Society might be a good place to start. Showing an interest in sport or debating will also be useful at showing a potential employer your character outside of the working environment.

2) Visit your local Magistrates' Court (or, of course, any of the larger courts). This might sound tedious as many of the trials that occur in the lower courts concern petty theft, assaults and breach of a restraining order. However, as well as boosting your understanding of how the law works in practice, it should also give you a chance to show employers that you have an enthusiasm for developing your knowledge of the law outside of your studies.

3) Learn an instrument. Showing dedication to a particular interest will tell employers that you're a focused and well-rounded individual. Whether you teach yourself or decide to pay for professional music lessons, your new skill may make you stand out from other candidates - which can be particularly useful where the competition is fierce! Remember, you don't have to write your level musical ability on your CV, although many employers may ask in interview so you cannot lie!

4) Do some volunteer work. There will always be a huge range of opportunities in every town or city, you just need to know where to look. Working in a charity shop is an obvious way to get volunteering onto your CV, however you may wish to choose a project which best uses your skills, for example, artistic students may wish to help run an arts and crafts afternoon for the disabled. Volunteer work, as well as being a fantastic addition to your CV, is extremely rewarding and helps to build personal character. For those students who feel particularly passionate about volunteering, there are many -albeit more expensive- opportunities to help abroad in third-world countries.

5) Join your university's mooting or debating team. Mooting is the practice of 'playing barrister' in a mock trial. The activity is great for enhancing team work and public speaking skills, both of which are highly sought after by employers! For those students hoping to become barristers, mooting is a must. Most universities will offer both internal and external competitions, if not friendly moots. Alternatively, debating also looks great on CVs!

6) Get some legal work experience. Applying for placements with solicitors or mini-pupillages with barristers can be extremely tedious and disappointing. However, this reflects the state of the legal industry and unfortunately the process will be equally as difficult when you are applying for real jobs after graduation - making it even more essential that you secure your work experience placement! Applying to a range of firms is a great idea because although many of the larger firms will offer paid work, it's often easier to get some 'shadowing' work with smaller firms to start off with. For best chance at success, apply to firms throughout the year. Securing that placement will show employers that you have taken the initiative to learn more about the profession and also that you're sure about your career choice; it may also come in handy as a reference so be sure to make the most of each placement by being helpful and asking insightful questions.

7) Get some paid employment! It's always helpful to show an employer that you have a good understanding of general working life - from things as simple as being able to work with other employees, turn up for work on time and dress appropriately. Having a good reference from a former employer will impress any potential employers.

8) Go and see your university's careers and employability adviser who can help you make the most of your CV. A good CV should be clear, concise and should stand out from the crowd (see my earlier post on CV advice for help with what to include); it can often be hard to achieve this on your own so use the resources that are provided for you! Most employers will also want to see a covering letter - you should be able to get help with writing this too! A good covering letter should explain why you are applying, why you think you'd be suitable for the job or work experience, and finally why you chose to apply to that particular firm - this means tailoring each letter to specific firms which sounds tedious but is definitely worth it (employers can tell a unique letter from a blanket letter!)

9) Choose a lay out which best shows off your skills! For example, if you achieved a high over-all year mark by doing very well in some subjects but badly in others, you should not list what grade was achieved in each module, but simply state the over-all mark. If an employer wants to know specific grades then he/she will ask! If you have done lots of volunteering as well as paid employment and legal work experience, then put them all under separate headings rather than one broad category - you don't want an employer to miss something vital! You must state your A-levels but may choose to omit your GCSEs if they don't enhance your CV, although again, you may be asked in interview and cannot lie.

10) Double check everything before sending to a law firm! Your CV should be grammatically correct and should not exceed 2 sides of A4. It's a good idea to include an explanation of brief duties from each role, as well as any skills learnt, but do not waffle!

Good luck!

Police Powers: The right to peaceful protest

The right to peaceful protest is protected under the Human Rights Act 1988. Britain has a long and distinguished history of using peaceful protests to gain rights and change laws. In recent years the police have been granted additional powers regarding public protests. Protesters should be aware of the rights, restrictions and legal consequences of protesting.

Peaceful Protests

Peaceful protests are used around the world to take a stand on issues that the public find important. These protests range from civil rights marches against discrimination to protests supporting nuclear disarmament. Protests and campaigns can make a very real difference in changing policies and laws. Peaceful protests allow people to come together to stand up against oppression from governments and can prove to be a very effective way of promoting change.

The Convention of Human Rights

The Convention of Human Rights contains a number of articles recognising the right to freedom of expression and thought. It also recognises the right to assembly and for individuals to come together to freely express themselves. The Convention also forbids interference from governments and public bodies such as the police to interfere with these rights. If the government or police do interfere then it is the public’s right to use legal processes such as the courts to enforce their rights.

The Police and Protests

Security measures in Britain are a concern for the government especially with growing fears over terrorist attacks. New criminal laws have been brought in that provides the police with extra powers when it comes to terrorist activities and anti-social behaviour. Peaceful protests in public space are a right but more and more public spaces are being restricted. It is now easier for the police to make the peaceful protest process difficult for demonstrators.

Key Factors to Peaceful Protests

There are a number of rights and regulations that pertain to peaceful protestors. These rights include:

• The right to assemble and protest on the public highway without permission from the police, council or other authorities.
• Protestors are not committing any crime as long as they are peaceful and do not use violence or threatening behaviour
• Protestors can assemble on the public highway as long as they do not completely block rights of way
• Trespassing on private land without permission is not a criminal offence
• Protestors can be removed from private land forcibly but should not be arrested unless they have used intimidation or aggravation
• Peaceful protests are not unlawful providing conduct is kept reasonable

Protest and Police Powers

There are a number of ways that the police will use their powers to keep crowd control during a protest. These can take the form of “stop and search” if they have reasonable suspicion. Recent changes have been made to stop and search laws so that the police can stop and search people in certain circumstances without the need for reasonable suspicion. The police can designate an area where people can be stopped and searched without suspicion under section 44. This process has been used to disrupt demonstrators, and the whole of London has been designated as a stop and search area under section 44.

Breach of the Peace

The police also have the power to arrest people if they feel a breach of the peace has been committed. The police can also stop demonstrators if they suspect that a breach of the peace may be about to occur. The use of anti social behaviour orders and dispersal orders have also been used to either prevent individuals from protesting or to break up protests. It is very important for protestors to use reasonable conduct during protests to ensure that the police are not given any reason to use force to break up a protest.

Injunctions

If demonstrators are protesting in front of a company building or corporation then the company may use an injunction to stop the protest. The injunction is a civil order and there can be criminal penalties for protestors that breach the injunction. Protestors can apply to the court and contest injunctions.

Peaceful protests are not unlawful, and it is the public’s right to assemble and mount a protest in a public place. So long as reasonable conduct and common sense are used during a protest there should be no reason for the police to intervene and disrupt a protest.

http://www.civilrightsmovement.co.uk/right-peaceful-protest.html

Contract Law: Basic principles of Duress

Duress refers to illegitimate pressure such as physical threats, which is used for an improper objective – sufficiently serious enough to gain the consent of the other party.

Threat of personal injury. Barton v Armstrong [1976] AC 104 concerned threat of death towards the managing director of a company, if he did not arrange for the company to buy shares from the defendant. The court said this was duress and the contract was voidable.

This case said that for duress to be established, it must be shown that the claimant entered into the contract as a result of illegitimate threats from the defendant (at least in part if not wholly).

Attorney General v R [2003] UKPC 22 was concerned with a former SAS solider who published his experiences of the Gulf War despite having signed a confidentiality agreement to say that he wouldn’t. The soldier claimed that he only signed since he was threatened with removal from the SAS. Although he originally won his case, on Appeal to the Privy Council it was held that the Army were within their rights to restrict disclosure of information and the pressure was not improper. Thus the confidentiality agreement was enforceable.

Lord Scarman identified two elements to duress:

                1. Pressure amounting to compulsion of the will of the victim.

                2. The illegitimacy of that pressure.

The threats do not need to be the sole reason for the claimant’s agreement to the contract although they do need to be a part of that reason. It is important to note that if a strong-willed claimant has shrugged off the threats, duress cannot be accepted as a reasonable claim even if a reasonable person might have been affected by them. 

2 QUESTIONS: Were the threats illegitimate? Was the claimant’s behaviour affected by these threats? IF THE ANSWER TO BOTH OF THESE IS YES THEN THE CONTRACT MAY BE SET ASIDE. The claimant may voluntarily enter into the contract, but it is still duress if they have only done so as a result of the threats. 

Did the claimant have any real alternative but to submit? The word ‘threat’ obviously carries some serious connotations suggesting physical harm however its modern usage usually simply means that the claimant is aware that to not enter into the contract will result in a particular action by the defendant. Threat must not be mistaken to mean ‘deliberate wrongdoing’ because in many circumstances, that is not the case.

The terms ‘illegitimate’ and ‘improper’ also carry connotations which suggest some deliberate wrongdoing on the part of the defendant, however a more helpful term is ‘inappropriate’ and this allows us to examine the reasonableness of the defendant’s conduct in the circumstance.

ECONOMIC DURESS – In commercial dealings, threats may often be made as a means of encouraging the other party to contract but this does not mean they will always be ‘improper’. E.g. “if you don’t contract we will take all our business elsewhere.” However for there to be duress, the threat must usually be unlawful. CTN Cash and Carry v Gallaher [1994] 4 All ER 714.

North Ocean Shipping Co v Hyundai Construction [1979] QB 705 was concerned with the devaluation of the dollar and how this led to the demand of more money for the construction of a tanker from the defendants. The court held that this was duress because the defendant’s threat to break the contract had no legal justification and left the claimants with no realistic alternative.

Atlas Express Ltd v Kafco Ltd [1989] QB 883. – Kafco were a tiny company with a valuable relationship with Woolworths. Kafco employed Atlas to deliver goods to Woolworths but Atlas made a miscalculation as to the quantity of goods they could fit onto one lorry. Kafco were demanded to pay more money for the extra journeys Atlas was going to have to make, or else Atlas would not deliver at all. Kafco could not risk their relationship with Woolworths and thus agreed to pay the extra but later refused to give the additional sum under the defence of duress. They succeeded with their claim as the courts held their relationship with Woolworths too valuable to jeopardise, and said they had had no other choice.

Remedies for duress: The remedy the victim will be seeking is ultimately to escape from the contract – RESCISSION (unmaking of a contract or unwinding of a transaction). Damages are never available for duress, even if the contract is rescinded. 

EU Law: Gender equality and pregnancy - has the EU done enough?

The EU has undoubtedly made substantial progress with regards to the laws on gender equality, moving from ensuring equal pay for work of equal value, to equal treatment in the work place and most recently pregnancy. The Pregnancy Directive 92/85/EEC has provided additional rights for those women already in work as opposed to those looking for work. The Dekker case, which occurred prior to the creation of the Directive, certainly demonstrates why further law was required in the area, as a woman was simply refused employment after interview on grounds of being pregnant.

However, since the enactment of the Directive, there have still been examples of discrimination. Webb for example, concerned an employee on maternity leave who was replaced with another female, who turned out to be pregnant. The employer dismissed the replacement woman on discovery of her pregnancy. Tele-Danmark concerned a lady who was successful at interview and was hired for the job, but later dismissed when the employer found out she was pregnant. Interestingly, the job in this case was only scheduled to be for a 6 month period, therefore it seems strange that the employer would dismiss the woman, unless she was in the last stages of her pregnancy, because she’d be able to complete most (if not all) of the work. In Melgar the woman had worked for the company for approximately 15 years, having had her contract renewed after each year of employment. However, on discovery of her pregnancy, the employer refused to renew her contract and the courts said that the employer must prove that the refusal to renew was based on some other reason (e.g. no longer needed her or she was no longer fulfilling her duties) other than pregnancy, otherwise he would be liable for discrimination.

Additionally, the case of Hertz demonstrated that the Pregnancy Directive will not protect women outside of their pregnancy or maternity leave. The woman was suffering from a pregnancy-related illness which caused her to take considerable absences from work after her maternity leave. The courts said that the employer was within his rights to dismiss her as the illness could no longer be related to the pregnancy and the time limit fell outside of the scope noted in Article 10 Pregnancy Directive. 

However, whilst the laws on pregnancy discrimination may be deemed far from perfect when attempting to protect women, it is in the area of paternity leave that the law shows a serious lack of development. Indeed, every child has two parents and it seems puzzling that whilst the EU has shown an intolerance to all other forms of discrimination, they would not show due concern for the fact that women are legally allowed time off work to bond with their new child, but men must continue to work. 

Cases such as Hoffman, in which a father was refused the state maternity benefit whilst on unpaid paternity leave, have demonstrated the severity of the situation. The court in Hoffman said that it had no interest in altering the gender roles from woman as mother and father as breadwinner. Similarly, Commission v Italy concerned a father who was refused the right to paternity leave; again demonstrating that fathers were being discriminated against. Thankfully, the recent case of Roca-Alvarez has shown a drastic change of heart with regards equal parenting rights; encouraging the notion of fathers gaining more and more rights. The Spanish authorities in Alvarez said that fathers were able to use part of the mother’s remaining maternity leave, when the mother returned to work. Interestingly, this is a topical issue in current news (May 2012) as the UK government have proposed to extend the rights of new fathers, allowing mothers in the UK to transfer the remainder of their maternity leave to their partners, where previously UK law had shown no interest in swapping gender roles.

Thus, whilst the EU has largely ignored the entitlement of males to take time off work to spend time with a new-born child, progress is finally being made some 10 years after the enactment of the Pregnancy Directive. However, whether that's down to the EU or individual member states is still under debate. Either way, it's clear that reform is still needed if men are to be given the same rights as their female counterparts; the benefits for men and women, were this to materialise, would be substantial. For males, the advantages speak for themselves - the chance to bond with their child, above all else! For females, the opportunity to return back to work following birth - it is often not fully acknowledged that women also have powerful and important roles aside from motherhood. It is also reasonable to assume that many of the on-going issues with discrimination against women on grounds of pregnancy would be combated if males were given the same rights to leave from work. 

Property: The Landlord and Tenant (Covenants) Act 1995 - a radical change?

A lease is the contractual agreement between two parties (the lessor and lessee), whereby one party pays the other for use of the land in question. Leases may entail certain additional agreements, known as leasehold covenants; for example, the covenant to pay rent. Additionally, leases may be assigned to a new owner; for example, where L (landlord) leases to T (tenant) for 50 years, T may reside for 10 years and then assign to A (assignee) for the remaining 40 years. On assignment of the lease, those leasehold covenants relating to the land will also pass to the new owner, mainly because the original parties would suffer a loss if the covenants could not be enforced against assignees. 

The enactment of the Landlord and Tenant (Covenants) Act 1995, which came into force on 1st January 1996, bought changes to the previous rules on leases (and the running of leasehold covenants) but unfortunately, despite attempts by the Law Commission, the new legislation cannot act retrospectively, meaning that leaseholds created prior to 1/1/1996 are treated differently to those created thereafter. For clarification, all leases before the Act will be referred to as ‘old leases’ and all leases after the Act as ‘new leases’.

Under old leases, 2 conditions were required in order for a lease to run with the land on assignment. Firstly, privity of estate (the relationship between a landlord and tenant whereby they may impose obligations on one another even in the absence of privity of contract); and secondly, ‘touch and concern’ (where the covenant relates to the demised premises rather than to a specific person) as governed by “Spencer’s case”, where a covenant to build a brick wall on the leased premises could bind the new owner because the wall would touch and concern the land. Lord Oliver in P+A Swift Investments said that ‘touch and concern’ required the covenant to benefit or burden the landlord or tenant; the covenant to affect the nature of the premises; and the covenant to not be personal. Note that for the assignment of a landlord’s reversion, rather than ‘touch and concern’, the covenant was required to ‘have reference to the subject matter of the lease’, although in essence there is little difference between the two requirements.

Once privity of estate and touch and concern had been established, when a tenant agreed to a covenant, he was not just promising to keep the terms of the lease, but also guaranteeing that any assignee would also adhere to those terms. In other words, the tenant was accepting liability for any breach committed by his own actions or the actions of his assignees or successors. Most leases would expressly state this term, but s.79 LPA ensured that where the parties omitted to expressly state liability, it would be implied by statute. This was the case even where the tenant disposed of his entire estate, as per Thursby v Plant. 

It’s worth noting that LDF v Avonridge Property established that tenant or landlord may expressly exclude liability where all parties were in agreement, although this is very rare because neither party want to suffer the repercussions of a breach without having a direct remedy through litigation.

Thankfully, following a much needed reform, the new legislation (Landlord and Tenant (Covenants) Act 1995) was enacted. It is suggested that the reform was proposed in the 1980s when economic hardships were rife and the old leases were particularly harsh on original owners, who were, for example, forced to cover damages when their assignees failed to pay rent. 

The 1995 Act removed the existing rules and replaced them with ‘landlord covenants’ and ‘tenant covenants’, found under s.28(1). The requirement for touch and concern was removed in its entirety and s.5 of the Act states that when the tenant assigns his lease, he is released from both burden and benefit of the covenants attached to the estate; although personal covenants will continue to bind the original parties as found in BHP Petroleum v Chesterfield and now codified in s.3 (6)(a). City of London Corp v Fell established that every single time an individual passes over property, he will give up all benefits and burdens to the new owner; for example, where T assigns to A1 who assigns to A2 who assigns to A3. In addition, the 1995 Act provides that the s.79 LPA provision will not apply to new leases as they are immune from implied covenants on liability.

Interestingly, above it was mentioned that under s.5 the tenant will be released from his obligations when he assigns the lease to a new owner, however s.6 provides that landlords are not afforded the same level of ease when attempting to avoid liability. The landlord has the arduous task of gaining the tenant’s consent for release, complying with the procedures under s.8, or else applying to the courts. This has the effect of giving the tenant some power over the person providing him with accommodation. This may seem harsh on the landlord, who is acting, for all intents and purposes, bona fide, however without those powers the tenant could potentially be left homeless under the control of a new landlord. MacKenzie and Phillips remind us that whilst the landlord can have some say in the tenant’s choice of assignee, the tenant will have no say in the landlord’s choice of assignee even where he is not credit-worthy; thus the s.6 provision appears justified.

Moreover, the landlord, in controlling the choice of assignee, may require the original tenant to sign an authorised guarantee agreement (AGAs), as per s.18. Dollar, writing for the Landlord and Tenant Review journal, states that s.22 of the Act allows for the landlord to be unreasonable in his desire for an AGA; this made the provision the most controversial and debated by the Houses of Parliament. Neuberger J has since stated that it seems unattractive that the landlord should be entitled to be unreasonable, however the provision has not yet been repealed. The tenant’s signature is indicative of his promise to ensure the assignee will fulfil the necessary obligations; thus reinstating the liability which the new Act had aimed to alleviate. It is to be noted however, that although the tenant will hence be liable for his assignee, he will not be liable for any subsequent assignees. For example, where T assigns to A1 who assigns to A2 who assigns to A3; T can only ever be liable for A1. Furthermore, the Good Harvest v Centaur case demonstrated that the tenant’s guarantor cannot be expected to guarantee the obligations of anyone except the tenant he made the agreement for, relying on s.25 of the Act. 

It's worth noting that there are also provisions for the protection of the tenant, both pre and post 1996, such as the fact that the landlord can only take action against the former tenant within 6 months of any money becoming due; the landlord cannot enforce against the original tenant any changes to the covenant made after his assignment; and finally, the former tenant may apply for an ‘overriding lease’, thus making himself the immediate landlord of the current assignee tenant.

In conclusion, although prima facie it may appear that the Act has made significant changes to the rights of landlords and tenants who wish to assign their interest, in releasing them from ongoing, onerous liability, the ability of landlords to enforce AGAs has inevitably reduced the rights of the tenant. What the Act does do is make provisions for both parties substantially more reasonable so that whilst they may not still be entirely immune from liability after assigning a lease or reversion, the extent and nature of that burden is not cumbersome. Although individual parties may have hoped for a clause which provides complete immunity from legal accountability, this would not work in practise and ultimately encouraging tenants to take responsibility for their decisions in handing over the leasehold (or in the landlord’s case, the reversion), albeit on much fairer grounds, will inevitably produce a positive outcome for property law as a whole.

Property: Adverse possession

Adverse possession is the process by which a squatter who resides on a piece of land for the requisite period, as required by law, may become the owner of that land. As will be discussed below, this makes the process a rather controversial one, which has been said to conflict with the Human Rights Act 1998.

The requirements that must be satisfied for adverse possession to take place are three fold: Firstly, there must be factual possession. This is further subcategorised into 1) real possession (Powell v McFarlane said sporadic use didn’t suffice); 2) exclusive possession (Bucks CC v Moran said that using land as a garden undisturbed for 40 years was adverse possession); and 3) continuous possession for the full 12 years for unregistered or 10 years for registered. The next requirement is that there must be an evident intention to possess, also known as animus possidendi. Finally, the possession must be 'adverse', or in other words, inconsistent with the paper owner's title.

The rules for adverse possession differ depending on whether the land in question is registered or unregistered. These will be dealt with individually.

Unregistered land is governed by the Limitation Act 1980. The squatter must have 12 years continuous occupation as per s.15(1); once this time has passed, the paper owner’s title will be extinguished automatically, as per s.17. The occupation may be consecutive with multiple owners as per MCI v Thurlow, provided that there has been no gap in the occupation. Prior to the completion of the 12 year period, the squatter will have all the rights and powers of an owner enforceable against everyone except the paper owner (can sue for torts or against a third party trying to take possession). The squatter will take subject to any third party rights but will always gain a fee simple, irrespective of what the paper owner had, as per Leach v Jay.

Registered land is governed by s.96-98 Land Registration Act 2002. The squatter must have 10 years continuous occupation and may then apply to the Land Registry to take title of the estate. The Land Registry will contact the paper owner and inform them of the squatter’s application, to which the paper owner may accept, reject or ignore. Accepting or ignoring the request will make squatter the owner, extinguishing the previous owner’s title. Rejecting will ensure the squatter does not take title but the paper owner must reclaim the property within 2 years or else the squatter may reapply. There are 3 circumstances in which the squatter will take possession even where the paper owner rejects: firstly, estoppel; secondly, some other right to land; thirdly, reasonable mistake as to boundaries.

There may be difficulty justifying adverse possession of registered land because there is no need for investigation of title, however one may rely on the argument that it’s in the public interest that properties should not be left derelict. It also encourages individuals to take responsibility for their own land.

As mentioned above, the human rights issues with adverse possession have caused ongoing debate. Pye v Graham (2003) concerned a plot of land that was bought for the purposes of development but which was let to the squatter for an agreed period, so that he could use the land for grazing while the owner had no use for it. At the end of the agreed period, the squatter reapplied for permission to use the land but received no response and thus continued to use the land without the owner’s consent. When the owner eventually decided to use the plot and claimed it back from the squatter, the courts said that it had been ‘adversely possessed’. The House of Lords inferred an intention to possess from the squatter’s enjoyment of the land. The owner could not rely on the Human Rights Act because the legislation had not been enacted at the time the land changed hands, and it cannot act retrospectively. Neuberger J said that it’s difficult to justify a loss of a man’s land simply because he failed to remove a squatter within 12 years; however, despite this, Pye still lost his case.

The case then became Pye v UK (2005) in the European Court of Human Rights, where they ruled that it was a violation under the ECHR. One argument is that under Article 6 – the right to a fair trial, the fact that for unregistered land a man is not even told that his title is extinguished on completion of the 12 years, gives him no chance to object. This could however be deemed in the public interest as it saves time and money searching for property owners. The UK then appealed against the decision, arguing that there was a long limitation period, the law is well established and the owner could easily have avoided the issue by taking back the land. The Grand Chamber took the UK’s side and reversed the decision. They held that the law on adverse possession was better dealt with in a national court than an EU court. The law was long-standing and had not been eradicated by the LRA 2002; therefore the court was satisfied that the law did not need changing.

The case of Ofulue v Bossert confirmed Pye v UK. The applicants argued that the court should assess the effectiveness of adverse possession with every new case but the court disagreed and said it would need a very good reason to consider changing the law.

Ways in which adverse possession is beneficial: 1) Mistake – helps innocent parties who invest time and money in a piece of land which they believe is theirs. 2) Keeping land in use – ensures that land which is left by the owner does not become derelict. 3) Facilitating investigation of title.

Article - Murder or suicide?

Extremely interesting article! Worth a read.

EU Law: Cases for EU Citizenship

Citizenship was first introduced by the Maastricht Treaty (TEU) and demonstrated a shift from a purely economical community to a political union. Article 20 TFEU sets out the main elements of EU citizenship. Including the fact that EU citizenship is an addition to national citizenship, rather than a replacement. Article 21 TFEU states that citizens have the right to move and reside freely within the territory of the member states.

FAMILY LIFE

Baumbast concerned a German national who had lived and worked in the UK for 3 years with his Columbian wife and two children. When he left to work in Asia and Africa, the UK refused to renew his family’s residency permits. Requested a preliminary ruling as to whether there was a right of residence. Held that there was because Baumbast could rely on Article 21; he’d lawfully worked in the host member state for several years and his family had resided with him. Furthermore, neither he nor his family were a burden on the finances of the host member state. Baumbast established that there is a general right of residence under Article 21 but member states have the right to limit it. It also established that children who have begun their education in a host member state are entitled to stay and finish their education, and that the carer of that child is also allowed to reside.

Zambrano concerned a Columbian couple who were seeking asylum in the UK but were denied residence. They later had two children whilst in the UK and the question was whether they were entitled to stay, given that their children now had British nationality, despite the fact that neither parent was in employment. The court held that in order to protect the rights of the children who had become EU citizens, the parents must be entitled to work and reside.

McCarthy concerned a British-Irish lady, living in the UK unemployed but claiming state benefits. She wanted to exercise her right to move and reside with a dependent by allowing her Jamaican husband to live with her in the UK. The court ruled that her circumstances were ‘wholly internal’ as she had never before wanted to exercise her rights under EU law. She was not a worker and was already a burden on the host member state, therefore her husband was not granted residency.

McCarthy might be seen as similar to Zambrano, given that the parents in Z and the women in M were not working, and that denying residency in both instances must disrupt the right to family life. However the facts can be distinguished on the basis that children are hugely dependent on their parents and would theoretically have to move to follow their parents where’s McCarthy’s husband is not bound to follow her although it might be preferable in a marriage; also note that the children in Z had become UK nationals and thus to deny their parents the right to reside would mean the children’s citizenship rights under Article 21 would be breached.

Chen concerned a Chinese lady who opted to move to Ireland for the sole purpose of giving birth to her daughter Catherine, with a view to her daughter gaining EU citizenship. The UK rejected her residency permit but the CJEU said that they were bound to grant residency where the child was an EU national. The mother was not capable of being a dependent of her child but was definitely a carer, which without residency, that child would be deprived of.

Casa-Grande said that non-national children are entitled to educational grants the same as nationals of that member state. There can be no discrimination.

STUDENTS AND STUDYING

Grzelczyk concerned a French student studying in his 4^th year in Belgium. He applied for a minimum subsistence allowance (minimex) which he was initially granted but later denied on grounds that he was not a Belgian national. The courts said that if Grzelczyk had been a Belgian national under exactly the same conditions, the allowance would have been granted, therefore it was very obvious that the rejection was based on discrimination on grounds of nationality. The court noted that previously in Brown they had ruled that maintenance assistance for students fell outside of the scope of the Treaties; however developments in the law, particularly the introduction of Directive 2004/38 have given students additional rights. Grzelczyk was entitled to equal treatment under Article 18 TFEU. Legal principle: EU nationals pursuing study in another Member State are entitled to access to social security. Did not deal with maintenance loans.

Bidar concerned a French national who had resided and completed his secondary education in the UK before accepting a place at a London University. His application for maintenance grant was rejected on the basis that he had not completed the requisite 4 years residence, outside of education, in the UK. The court, although stating that it’s reasonable for member states to require a certain level of integration into society before providing any grants, and also that Article 24 of the Directive provides no obligation on member states to provide social assistance, accepted Bidar’s application. The general requirement was for the 4 years residence to be outside of education, however Bidar had still demonstrated a sufficiently long residence period in the UK and was not a burden on the finances of the host MS.

Forster confirmed Bidar and said that 5 years prior residency was proportionate and legitimate. In the case, a German woman went to reside and study in the Netherlands. She got herself a job whilst studying and because the Netherlands constituted her to be a ‘worker’, they ruled that she should be treated the same way as nationals with regards to the maintenance grant. She was awarded the grant but the authorities later discovered that Forster had not been employed for 5 months, losing her rights as a worker and therefore losing her right to the grant. They demanded that she pay back the money for the months she had not been employed. Forster claimed that she was integrated into society, relying on Bidar, but the Dutch national authorities said she must have resided for a minimum of 5 years. The CJEU held that 5 years was an acceptable time period.

Collins concerned an Irish-American citizen who moved to the UK in search of work as a social worker. He applied for the job seekers allowance but was refused on the basis that he was not a habitual resident of the UK. The CJEU held that it was unlawful to discriminate on grounds of nationality as all EU citizens are entitled to equal treatment when seeking work. Furthermore, the case established that it’s unlawful to deny a benefit that will facilitate access to the employment market.

D’Hoop concerned a Belgian national who completed her secondary education in France before attending a Belgian university. After her degree she applied for the ‘tide over allowance’ which is given to new graduates looking for their first employment, but was rejected on the grounds that she’d completed her secondary education in a different member state. On a preliminary reference, the court held that it was discriminatory to deny the allowance, based on Articles 12 and 18 of the EC Treaty.

Gravier said that vocational training (as mentioned in Art 7 Directive) means university.

Property: Mortgages and Undue Influence

Creation of mortgages

Legal unregistered land: LPA 1925 - Demise for a term of years absolute (conveyance for a set number of years) or charge by way of a legal mortgage.

Legal registered land: LRA 2002 – Charge by way of a legal mortgage.

Equitable: insufficient formality; e.g. deed.

IF THERE IS NO WRITING AT ALL THEN THE MORTGAGE CANNOT EVEN BE EQUITABLE.

MORTGAGE TRIGGERS FIRST REGISTRATION.

Mortgagor’s rights    

                     

Distinguish the equity of redemption from the equitable right to redeem. ‘Equity of redemption’ is the bundle of rights in relation to the land, including the right to redeem. The ‘equitable right to redeem’ is the right to claim one’s own land by fully paying off the money due. At law this was harsh and would only be permitted on one specific date; at equity this is allowed anytime before or after the redemption date.

There can be no clog or fetter on the right to redeem but it may be restricted, modified or postponed. In Byrne it was postponed for 40 years on freehold land which was acceptable.

Right to not be subject to unreasonable restraint of trade; as demonstrated in Esso Petroleum v Harper’s Garage where there was a solus agreement to only sell the lender’s products for 21 years. Was void but 5 years would be acceptable.

Any collateral advantages for the mortgagee must not be a clog or fetter. Bradley established that any advantages will cease when the mortgage is redeemed. Although Kreglinger was the exception, in which the agreement to sell animal skins only to the lender was deemed independent of the mortgage and therefore continued after redemption. Dabrah concluded that an unconscionable term would not apply – where a provision stated that the interest rate, upon default of payment, would rise from 7% to 57%!

Mortgagee’s rights      

                  

Possession – the right exists as soon as the mortgage is made as established in Four Maids v Dudley Marshall, and before the mortgagor defaults on payment, as per Schindler. For possession, the mortgagee will need a court order (unless the property is unoccupied or the mortgagor goes willingly). Norgan established that the court may adjourn proceedings to give the mortgagor a chance to pay.

Sale – the power for sale arises under s.101 LPA and is exercisable under s.103 LPA. The mortgagee must be able to prove that the mortgage was created by deed, that money is due and that the power to sell isn’t included by deed. Furthermore, there must be either: a 3 month default on payment, some other interest 2 months in arrears, or else a breach of another provision.

The mortgagee must sell in good faith, not to himself. Cuckmere established that he should attempt to sell for the best possible price.

Appoint a receiver – person who collects the debt money.

Foreclosure – harsh rule which extinguishes the right to redeem.

Undue influence  

          

May be ACTUAL or PRESUMED.

Was the mortgage to the claimant’s manifest disadvantage? The Aboody case concerned a woman who agreed to use her house as surety for her husband’s business loan, which gave the company a good chance at success. Was not to her manifest disadvantage at the time she signed. Pitt has now clarified that undue influence can still occur even where the agreement wasn’t to the claimant’s manifest disadvantage. It just helps their case if it was disadvantageous.

Did the lender ensure that the claimant knew the nature of the mortgage and received independent advice? In O’Brien, the bank manager had left instructions at the local branch, stating that the wife must be told the full extent of the liability and must be advised to seek independent advice, the clerk failed to do this. (The wife’s claim for UI failed because she was used to dealing with financial manners, but succeeded with a claim of misrepresentation).

RBS v Etridge – the lender has a duty to:

                                1) Communicate with the claimant

                                2) Ensure the claimant gets an independent solicitor

                                3) Provide the solicitor with the claimant’s financial information

                                4) Tell the solicitor of any concerns of undue influence

                                5) Ensure the solicitor explains the nature and implications

Land Law terms

Absolute Interest: An unconditional interest in land, e.g. a lease for A to 99 years.

Absolute title: The best class of title available in registered land.

Adverse possession: If a squatter takes possession of land, with the intention of excluding the true owner and the world at large, then the squatter acquires title to land by adverse possession after, usually, 12 years under the Limitation Act 1980.

Assent: Document transferring property of a deceased person from the estate to the beneficiary. S36 Administration of Estates Act 1925 requires an assent to be in writing. It does not have to be by deed – which is noteworthy, because usually any document transferring a legal estate has to be by deed.

Assignment: A document (which must be a deed) transferring the remainder of a lease from

Bankruptcy: If an individual in unable to pay his debts, he may eventually be made bankrupt by the court. The effect is to prevent him from owning property, borrowing money or obtaining credit.

Charge: A financial debt or liability affecting the property.

Chargee: The name given to someone who has the benefit of a charge over the property (e.g. a mortgage lender).

Chargor:  A company or person who grants a charge or right in security or in favour of some other person (e.g. a borrower).

Chattels: Items of personal property, such as furniture and moveable goods. This is more commonly referred to as “fixtures and fittings”.

Completion: Finalising the purchase or sale of a property. The completion date is the date when the bulk of the purchase price is paid, the buyer received the keys, and the deeds are handed over. 

Contract: A legally binding agreement. This is the agreement between the buyer and the seller which sets out the terms of what has been agreed, such as full description of the property and surrounding land included in the sale, the price agreed, the full names of the seller and buyer, and will incorporate the fixtures, fittings and contents questionnaire referred to above together with details of what happens if things go wrong to protect both the seller and the buyer.

Conveyance: The document that transfers the ownership of freehold land from a seller to a buyer. It is equivalent to a Transfer but is only used in unregistered land.

Conveyancing: This is the transfer of the legal title to land and property from one person’s name to another.

Co-ownership: The situation where two or more people own the same parcel of land. Nowadays, the phrase usually refers to a joint tenancy or a tenancy in common.  

Covenant: An agreement or promise contained in a deed or document by which one party binds himself to do or not to do something. Covenants can be positive or negative by the nature (e.g. a positive covenant would be to keep the garden in a neat and tidy condition and a negative covenant would be not to keep pigs or poultry on the land.

Covenantor: The party who gives a covenant, so carries the burden of the covenant.

Deed: A document that is legally binding (e.g. Transfer or TR1).

Deposit: A proportion of the purchase price, payable by a buyer at the time of exchange of contracts to buy land or buildings. It is paid to the seller’s lawyer. It acts as a part payment and also a guarantee that the buyer will actually complete the transaction. If the buyer unjustifiably refuses to complete then the seller can keep the deposit. The sum suggested by the Law Society at this stage of the transaction is 10% of the purchase price. If however, the buyer is borrowing 95% of the purchase price then only 5% would be payable.

Discharge of Mortgage: The repayment of a mortgage or the document that confirms that the borrower has paid off all the money due to the lender in respect of the loan. The form used to discharge a mortgage can be a DS1, END, ED or, in case of unregistered land, the original mortgage deed is sealed by the lender.

Easement: An easement can be a right of way over a piece of land or even a right to light or air.

Escrow: An example of an escrow is where the transfer that has already been signed by the customer (who may be either the buyer or seller) is sent to the other lawyer in readiness for completion. It is sent to them “as an escrow” to allow them to get the transfer signed by their client ahead of completion.

Exchange of Contracts: The point in a conveyancing transaction when the terms of the contract become legally binding. At exchange, the buyer becomes the equitable owner of the property. The buyer’s lawyer will speak to the seller’s lawyer on the telephone and agree that exchange has taken place. Once this is done the contract will be dated, the completion date inserted and both the buyer and the seller will be bound by law to the contract and the facts referred to in the contracts.

Fixtures, Fittings & Contents: This is a list of items at the property which are being removed by the seller or which remain as part of the sale. This ensures that there are no disputes between the buyer and the seller as to what is to be left in the property on the day of completion.

Freehold: This is one of two legal estates created by the Law of Property Act 1925. It continues for an indefinite period – for all practical purposes ownership forever.

Grantor: A person who grants an estate or interest in land.

Insolvency: A person or company becomes insolvent if they are unable to pay their debts as the debts fall due. It may lead to bankruptcy in the case of an individual, or to liquidation in the case of a company.

Joint Tenants: If land is owned by more than one person, the interests in the land are separated. The co-owners will hold the legal interest and if one party dies, it will pass to the survivor.

Land Registry: This is a government authority which registers the transfer of all property in England, Wales and Northern Ireland. Every transfer must be forwarded to the Land Registry after completion. Once the registration has been completed the Land registry will issue a Land Certificate or a Charge Certificate depending on whether there is a mortgage involved. If there is a mortgage this Charge Certificate will be sent to the lender for them to keep, but if there is no mortgage then the Land Certificate can be forwarded to the buyer for them to keep. 

Lease: This is one of two legal estates created by the Law of Property Act 1925. The lessor grants the lease to the Lessee for a specified period of time (e.g. weekly, 10 years, 999 years). The lessee is granted exclusive possession, subject to the terms of the lease.

Lessee: Tenant.

Lessor: Landlord.

Licence: There are different types of licences, but basically this is a consent or permission to enter land (e.g. a theatre ticket). Superficially, a licence may sometimes appear similar to a lease: the distinction between the two is of crucial importance because whereas lessess often qualify for statutory protection in the form of security of tenure and perhaps rent control, al licensee has no such protection.

Licensed Conveyancers: Those authorised by the Council of Licensed Conveyancers to practice conveyancing.

Lien: A right which one person may possess over the property of another to secure payment. For example, if a seller of land is not paid in full, he has a lien over the land in respect of amount due.

Mortgage: Security over land for a loan. If the loan is not repaid, in addition to suing under the covenant to repay, the mortgagee has various rights against the land that can be used to attempt to collect the money owed: e.g. the mortgagee may be able to take possession of the land and sell it.

Mortgagee: Lender under a mortgage, e.g. bank, building society.

Mortgagor: Borrower.

Puisne mortgage: A legal mortgage that is not protected by the deposit of title deeds with the mortgage. As the first mortgagee invariable requires deposit of the deeds as part of his security, a puisne mortgage is invariably a second or subsequent mortgage. In unregistered land, the puisne mortgage must be protected as a C(i) entry at the Land Charges registry.

Registered Land: Land where the title is recorded through registration at the land registry. Interests that may exist against registered land can be classified as registered interests, minor interest and overriding interests. Contrast unregistered land.

Registration: A method of protecting rights in the land by entering them in an official record. (1) In unregistered land, various rights (mostly equitable interests) need protection by registration against the name of the estate owner at the Land Charges Registry. (2) In registered land, the title to the freeholder or leasehold land is registered at the land registry; and interests in the land are protected by registration against the title number (although some interest are overriding and so do not need to be protected by registration.

Restrictive covenant: A promise by deed not to do a particular act, e.g. not to build an extension to a house without first obtaining the covenantee’s consent.

Solicitor: A lawyer regulated by the law society.

Sub-lease: A tenant can grant a sub-lease for a term that is shorter than the residue of his own leasehold interest.

Tenancy in Common: Equitable co-ownership, where the beneficial interest of the tenant can be left by will. There cannot be a tenancy in common-law; it can only exist in equity.

Tenancy: Lease. Often, the word tenancy is used to describe leases with very short terms.

Tenant: (1) Lessee. (2) A general term for someone who holds land, e.g. a joint tenant (who may, or course, hold a freehold or leasehold estate.

Title Deeds: These documents act as evidence that the person selling the property does own it and sets out any rights or obligations which have to be complied with. We need these documents to enable us to register the new ownership on their records.

Trust of Land: The principal method by which land is held on co-ownership situations since the Trusts of Land and Appointment of Trustees Act 1996. The legal estate in the land is held by trustees, who have the power to sell the land and power to retain the land. The equitable interest is held by the beneficiaries, who may be joint tenants or tenants in common, or have successive interests in the land. The trust of land is a replacement for the trust for sale.

Unregistered Land: Land where the title is not yet registered with the Land Registry.

Terms taken from http://www.oysterestates.co.uk/jargon-buster