Free Law Dissertations - 1. The Property Here Is Held As A Tenancy In Common As The Words In Equal
1.
The property here is held as a tenancy in common as the words in equal shares has been used and the parties have sold and passed on their individual shares indicating their intention that they all own a part of the property as opposed to them all holding the whole of the property. The Law of Property Act 1925 stipulates that the legal estate can only be held by more than one person as joint tenants. A tenancy in common in the legal estate can no longer exist, so that if there is to be a tenancy in common then this must exist behind a trust for sale. As against the outside world (including any landlord) the co-occupiers (who are trustees) can only be joint tenants.
Section 12 of TOLATA 1996 confers a right to occupy where the purposes of e trust include making the property available for such occupation or where the lands is held by the trustees so as to be so available. No right arises where the land is unavailable or unsuitable for occupation. Where two or more beneficiaries have a right to occupy, the trustees may exclude or restrict the entitlement of any of them as long as the trustees act reasonably in doing so. In exercising their power to exclude, restrict or impose restrictions the trustees are, by reason of s13(4), to have regard to the intentions of the person who created the trust, the purposes for which the land is held an the wishes of all of the beneficiaries who would be entitled to occupy. Therefore on this basis it is likely that the other trustees will be able to sell the property and Beth and Emma will therefore be able to remain at the property.
2.
Easements can come into existence in a number of ways; by express grant (either by deed or in writing), by implication on the sale of part of a property or by prescription.
It has long been established that an easement is no more than a right over land and not a right to either possession or joint and exclusive use of it. If an alleged right involves the exclusion of the owner of land, it cannot be an easement. The precise scope of this principle has been considered in a number of cases. In Copeland v Greenhalf, above, a wheelwright's claim to an easement to store vehicles on a strip of adjoining land failed because Upjohn J considered that the right was too extensive to constitute an easement in law; it amounted to a claim to the whole beneficial use of the part of the strip of land over which it had been exercised. In Grigsby v Melville Brightman J took a similar view of an asserted right to use premises as a store. Nonetheless, in Wright v McAdam, the Court of Appeal had considered that a tenant's use of a shed in a garden for the storage of coal might be an easement.
Categories of easements have increased since the decision in Dyce v Lady James Hay and have developed over time to suit modern society.
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