Real Property Notes

September- December 2014

Done by : Janika Young

1|Page
 Definition and Classification

Real Property: Land and all the things that are attached to it( that which
consists of land, and all rights and profit arising from and annexed to land, of
permanent, immovable nature.). In its legal sense “land” includes not just the soil
and things growing naturally on it, but any buildings and fixtures erected thereon.
Land and all the things that are attached to it .Anything that is not real property is
personal property and personal property is anything that isn’t nailed down, dug
into or built onto the land. A house is a real property, but a dining room set is not.
Land is normally subject to a wide variety of rights, obligations and interest which
would not normally affect pure personality. Real Property is that which consists of
land, and of all rights and profits arising from and annexed to land, of a
permanent, immovable nature. In order to make one's interest in land, real
estate, it must be an interest not less than for the party's life, because a term of
years, even for a thousand years, perpetually renewable, is a mere personal
estate. It is usually comprised under the words lands, tenements, and
hereditaments.

Real Property vs Personalty

In relation to land we speak of real property. Real property or realty refers

to land. A landowner does not own wild animals on his land because such animals
are incapable of ownership. He may hunt those wild animals and when captured
and killed they become his. Minerals and other resources beneath the soil do not
belong to the landowner, but to the Crown or State. The government usually
grants rights to persons for the extraction of such natural resources, the
landowner being compensated and sometimes relocated.

2|Page
 Realty is different from personality which refers to things such as a car,
table, choses in action(such as copyrights), stocks and jewellery. One’s ownership
of realty gives them a right in rem (a right against the whole world), while one’s
ownership of personalty is a right in personam.(i.e. a relation between two
parties;)

Real Property Personalty

In England, before the Land Personalty was vested in the
Transfer Act 1897(U.K.), realty was vested in the first instance in the
passed under the common law personal representative
directly to the heir on intestacy, or to (administrator or executor) of the
the devisee where the property was deceased. But after the Land Transfer
willed. But after the Land Transfer Act Act 1879, both realty and personalty
1879, both realty and personalty vested directly in personal
vested directly in personal representative.
Personaly could always be
representative.
It wasn’t until after the willed.
enactment of the Wills Act 1540 (UK) Personalty can be an object of
and the Tenures Abolition Act 1660 absolute ownership.
that realty could be subject- matter of
testamentary disposition.
Realty under the common law On the otherhand the remedy

is subject to incidents of tenure and for loss of personalty was in

therefore cannot be an of absolute personam, ie. Against the person. The

ownership. An individual may only defendant was obliged personally to

3|Page
have an estate in land. remedy the wrong or the breach
Where an owner of realty was
complained of. The plaintiff did not
dispossessed, he could by this action-
get the dispossessed property back as
action realis- obtain the King’s writ
a matter of right. The defendant had
commanding the sheriff to put him
the option of returning the item or
into possession of very thing from
paying damages. It was therefore
which he was wrongfully ejected him,
expedient for the plaintiff to state the
but also against any person who was
price or he might lose the action.
found in possession of the property.
The execution process issued in rem
against the thing.

In sum, the principal distinctions between real and personal property are
the following: 1. Real property is of a permanent and immovable nature, and the
owner has an estate therein at least for life. 2. It descends from the ancestor to
the heir instead of becoming the property of an executor or administrator on the
death of the owner, as in case of personalty. 3. In case of alienation, it must in
general be made by deed and in presenti by the common law; whereas leases for
years may commence in futuro, and personal chattels may be transferred by parol
or delivery. 4. Real estate when devised is subject to the widow's dower personal
estate can be given away by will discharged of any claim of the widow.

Corporeal (res corporals) & Incorporeal (res incorporales)

4|Page
 Corporeal property refers to physical objects which can be touched, felt
and seen. Incorporeal property refers to things which have no physical existence
but are rec9ognized in law. In other words, Corporeal consists wholly of
substantial, permanent objects, which may all be comprehended under the
general denomination of land. There are some chattels which are so annexed to
the inheritance, which they are deemed a part of it, and are called heir looms.
Money agreed or directed to be laid out in land is considered as real estate.
On the other hand, incorporeal property consists of certain inheritable rights,
which are not, strictly speaking, of a corporeal nature, or land, although they are
by their own nature or by use, annexed to corporeal inheritances, and are rights
issuing out of them, or which concern them. These distinctions agree with the civil
law. The incorporeal hereditaments which subsist by the laws of the several states
are fewer than those recognized by the English law. In the United States, there
are fortunately no advowsons, tithes, nor dignities, as inheritances.

Immovable(res immobile/res soli) & Movable (res mobile)

Immovable property refers to land, things underneath and things attached

to it. These include the earth’s surface, the ground beneath it, the air space above
it, fixtures, trees, vegetation and fruits. While movable property refers to things
which can be moved, eg.chattels. It can also be destroyed and is therefore
distinguishable from immovable property, by its lack of permanence. If one is
dispossessed, he may not be able to restore the very thing lost to him.

The classification of movable and immovable is only used in the civil law
system. The common law does not address this for there are no situations where

5|Page
the courts have to decide issues involving conflicts of laws. This would in event
determine the verdict/ outcome of the case.

NB— (leasehold interest)

The law in T&T and Barbados recognises leasehold interest as immovable

property. In Belize, the same interest is given. Under the common law, leasehold
interest is considered as personalty (as opposed to realty, which expresses an
interest in land).

The general rule is that leasehold interest I personalty. However, in the

above countries, it is seen as land. That is because the law classifies these as legal
estates 9as is the definition on land in these territories.)

Characteristic of land

Land is (1) indestructible and (2) forever retains its location. The site of
parcel of land cannot be removed. It is permanent, and would, therefore, always
remain within the jurisdiction of the courts and be amenable to its process. It is
impossible to withdraw it from the court’s jurisdiction. (3) Land is specifically
recoverable. Where someone is wrongfully evicted he can be restored through
legal process to the very piece of land of which he s dispossessed. (4) Land
endures forever and therefore can provide a valuable source of support and
subsistence for successive generations. It cannot be appropriated and taken
away.

It can sustain rights as easements or servitudes, which cannot subsist in

movable property. Regstration of title or conveyance play a vital role in giving
effect to the transfer of land.

6|Page
 Seisin

This is defined as the possession of a freeholder land, the actual possession

of which is enjoyed by him or by a leaseholder or copyholder who holds of him.
Seisin was the possession on which one could found a writ of right by which a
dispossessed freehold tenant could recover his lost property. Seisin involves
actual possession, even it the possession was acquired illegally.

It is worth the mention that a squatter/trespasser may have seisin. Also, a

freeholder that has been dispossessed loses his seisin. What he will have is a right
of entry. This has to be exercised to eject the person who has dispossessed you
within the period described by law. This is twelve months in most Caribbean
jurisdictions and ten in others.

In the meantime, a person who has dispossessed you has seisin. This is
because he enjoys the actual ownership and possession of the property. Only the
person who has a better seisin (right of possession) can bring an action against a
squatter/ trespasser.

Disseisee- the person who has been dispossessed (they have a right of
entry)

Dessiesor- the person who has seisin.

Illustration of the seriousness of the Doctrine of Seisin

-a trespasser who takes up possession commences a fresh title which is valid

against all but the person who he dispossessed.

7|Page
-he owns a fee simple estate which is defensible against all but the person with a
better title.

-however, if that person with a better title who is entitled to immediate seisin
does not take action, this tortuous interest will ripen into an absolute one under
the limitation periods of the adverse possession statutes.

-seisin is a fact, not a right. It evidence of a title at Common Law.

-the fact that the person dispossessed has a right to immediate occupation of the
land does not give him seisin. The trespasser, having actual possession is the
person seised of the land.

Since there can be interests in land existing that is better than that of a
vendor, a buyer at Common law must trace possession of this land to a time far
enough back that would dispel any doubt that the vendor is capable of
transferring the interest under consideration.

Seisin -a concept of freehold. Possession-the equivalent concept in

a leasehold.

-reflects the difference between

freehold and leasehold estates.

A, the landlord is seised of Blackacre, while the tenant-the holder of the

leasehold interest-is in possession. Someone may be seised though not in
possession

8|Page
 Leach v Jay (1878 9 Ch.D.42

Mr. Robert had an estate. On his death, his daughter had a right to the
property (heiress). The widow of the deceased wrongfully took the property,
claiming it was willed to her. She then retained possession and occupied it. By her
will, she devised the property not to her daughter, but her boyfriend. The
daughter then made a will and devised that “all real estate seized should go to
Leach”, the P. It was held that the daughter did not have seisin and so could not
have willed property belonging to someone else, in this case, the mothers’
boyfriend.

It was not until the Wills Act and the Real Property Act that the right of
entry of a disseisee could be devised and be disposed of respectively. On the
other hand, the disseisor has virtually all rights of ownership. He can even devise
the property.

Asher v Whitlock (1865) L.R. 1; Q.B. 1

In 1842, Williamson enclosed an area of wasteland, which he occupied until

he died in 1860. He devised the land to his wife “for and during so much only of
her natural life as she might remain his widow and unmarried, with remainder to
his daughter Mary Ann Williamson, in fee simple. The daughter and the mother
continued to live at the property. The widow got married to the D and the D,
upon living with both at the property, ended up surviving them. It was held that
the P had sufficient cause for an action and can order ejectment of the D as he
was not in legal possession of the property.

9|Page
 Seisin finds expression in possession, which is presumptive evidence of
ownership of the freehold. It was only the person with seisin who could give a
freehold estate. Freehold estates were transferred by means of livery of seisin.
This was a ritualistic ceremony whereby a twig or handful of dirt was given to the
grantee or some other symbolic gesture was performed on the land by the
grantor indicating the transfer of ownership to the grantee. He was then said to
have been put in seisin, given peaceful and quiet possession of land.

Seisin was a feudal status symbol by which the person responsible for
performance of the feudal services was determined. Since the services were to be
performed at all times, seisin could not be in abeyance. Any conveyance which
would create a vacuum in the seisin, or put it in suspense, so that at a particular
time, there could be nobody to perform the service, was void.

Reception of common law and equity in Caribbean.

According to the theory of English land law no one but the Crown actually
owns land. The actual occupant only has what is called, ‘tenure’/ an ‘interest’ or a
right to hold land. This theory/concept was received by or imposed upon our
Commonwealth Caribbean jurisdictions. In 1066 Williams the Conqueror invaded
England and defeated its King Harold at the Battle of Hastings. The reward by the
new King to his faithful knights was vested in the land. All land was vested in the
King and he made grants to his knights. When the English captured our Caribbean
territories or signed treaties in respect of them, they brought with them the
English legal system and its traditions. Land was vested in the Crown and large
tracts were granted to the nobility in return for their loyalty and service. The need
for labour in the various territories was filled by the introduction of slavery by the

10 | P a g e
relevant European powers at the time. With the purchase of freedom by some
slaves land was acquired by them, sometimes in large tracts as well. In the early
post-emancipation era in some territories, the establishment of free villages by
the churches saw a rise of a peasantry. In other instances, ex-slaves themselves
purchased land and new era in landholding began. Many remained as workers on
estates and were provided with land which they “rented” as part of service.

The principle then is that a person cannot own land; he can only hold an
interest in land. The doctrine of estates defines the period for which any such
interest will last.

NB: See Mabo v Queensland on the issue of reception ;on page 6 of the
worksheet.

11 | P a g e
 DOCTRINE OF ESTATES

Origin of the Doctrine of Estates: Development of the law

At common law, land could not be owned absolutely. On could only have
tenure in land or a tenancy of lands. This means land was held in return for a
promise to perform certain services.

The period within which the land could be so held was called an estate. The
estate is ownership qualified in terms of time; the time within which the land can
be possessed, enjoyed. Controlled or managed and alienated. It describes the
duration of a grant from a superior lord within the feudal society.

The period of time within which one can hold land varies. The grant can range
from: (1) [for] the life of the tenant and any of his heirs, both collateral and lineal;
so long as any of his descendants or collateral heirs is alive; the estate endures
[fee simple]. (2) [For] the life of the tenant and his descendants only; whereby the
class of potential heirs is restricted to the direct descendants of the tenant [fee
tail]. (3) [For] the life of the tenant, whereby upon his death the estate
determines. [Life estate].

1. The Fee Simple Estate

This is the most precise and permanent form of ownership, the word “fee”
indicating that the holder can dispose of his interest by sale or otherwise,
conferring on his successor similar rights as those previously held by him, subject
to only such encumbrances which run with the land, such as easements and
restrictive covenants. [If the land is described as fee, it means it is inheritable].

12 | P a g e
 The fee simple is the largest estate recognized by the common law. It is
potentially of an infinite duration. It can be inherited, disposed of inter vivos or by
will; the tenant of a fee simple estate has the right to use and abuse, i.e. subject
to the general law, he can put it to any use he desires.

CHARACTERISTICS

A. Inheritance
The fee simple can be enjoyed through successive inheritance by successive
generations. The prefix “fee” denotes an estate that is inheritable; and the suffix
“simple” shows its quality of general transmissibility i.e. the incident of
transmissibility is not in any way restricted to heirs of a particular line of descent.
The class of potential heirs is extensive and unlimited. Collateral heirs are eligible
to succeed if there is no more existing in the line of lineal heirs. Therefore, this
right of inheritance extends to ascendants and descendants i.e. all collaterals.

If there is a case where the tenant in fee and all his heirs die, and he as such
dies without leaving any lineal or collateral heir, the duration of a fee simple
estate is determinate in that sense.

The distinguishing feature of this type of estate is that it is uncertain to

determine at any specific time in the future or on the occurrence of some event
which is certain to occur on a predetermined date.

The words used to connote a fee simple estate are “to T and his heirs”. This is
suggestive of the fact that after the death of the tenant the estate should go to
his heir, who could recover the estate from any person the deceased ancestor

13 | P a g e
had conveyed it. To forestall this possibility, it was necessary for any alienation to
be effected with the concurrence of as many near relatives as the grantor could
lay his hands on. However, after 1306, the tenant could defeat the interest of his
heirs by conveying his property to a third person without concurrence of his
relations. The heirs cease to have the right to interfere with a disposition made by
their ancestor to a third party, whose interest was no longer dependent on the
existence of the heirs of the original grantor.

B. Right of Alienation- inter vivos

The heir’s right to inherit ceased to give him any definite or cognizable interest
in the property as soon as the land became devisable or alienable inter vivos
without the concurrence of the relations of the tenant. The concept “and his
heirs” therefore became artificial; for the property could be given away so as to
defeat all the expectations of the “heirs”, who would then have no claim
whatsoever to the property if it had been granted out of the lineage.

C. Right of Alienation-testamentary
Between the 13th and the 15th centuries, it was impossible for a tenant to
dispose of his estate by will. However, the tenant could circumvent the common
law prohibition against testamentary disposition of land by means of a “use”, by
transferring the estate to a trustee upon a trust for himself, reserving the right as
to how the trustee should ultimately dispose of the estate after his death. In his
will he would indicate how the trustee should dispose of the property. The
trustee would then carry out the instructions inter vivos. In 1540, the Statue of
Wills made real estate devisable.

14 | P a g e
 D. Right of Use and Abuse
Austin classified ownership as the right of: [1] indefinite user; [2] unrestricted
disposition; and, [3] enjoyment unlimited in duration. These three rights mean:
[1] the right to make physical use of a thing; [2] the right to the income from it, in
money, in kind or in services; and [3] the proper management, including that of
alienation.

A tenant in fee simple can therefore put his land to any use he thinks fit. He
can use it and abuse it, and he does not normally incur any liability for neglecting
it.

There are however some exceptions to be noted:

Exceptions

[1] He has to respect the right of others, which affect his land, such as
leases, easements and mortgages.

[2] Statute may restrict the tenant’s right of user in several ways.
Modern social life has necessitated the enactment of Town and Country
Planning, Health and Compulsory Acquisition laws which interfere with the
used of land. However these do not affect the inherent nature of a fee simple
estate.

Compulsory Acquisition

The constitutions of the Commonwealth Caribbean territories all enshrine

the citizens’ right to own property. This right is usually states in the context of the
citizen’s protection against governments’ compulsory acquisition without

15 | P a g e
adequate compensation. It can therefore be seen as a protection against
expropriation. This right, however, is subject to a number of exceptions, all of
which point to the supremacy of the national interest and public policy.

Section 18 (1) of the Jamaican Constitution provides, inter alia as follows:

“No property of any description shall be compulsorily taken possession

of and no interest in or right over property shall be compulsorily acquired
except by or under the provisions of a law: that-

-Prescribes the principles on which and the manner in which

compensation therefore is to be determined and given; and

-Secures to any person claiming an interest in or rights over such

property a right if access to a court for the purpose of-

(i) Establishing such interest

(ii) Determining the amount of such compensation [if any] to which he

is entitled; and

(iii) Enforcing his right to any such compensation.”

Section 19 (1) protects one against unlawful search or entry upon one’s
property. It provides inter alia as follows:

“Except with his consent, no person shall be subject to the search of

his person or property or entry by others on his premises.”

16 | P a g e
 [3] The tenant may incur tortuous liability if, by the use of his land, third
parties suffer any injury. Nuisance and liability under the rule in Rylands v.
Fletcher are the commonest examples.

Types of Fee Simple Estate

1. Determinable Fee Simple

This is an estate which determines where the tenant and his heirs die, or the
occurrence of a specified event other than death. Thus a grant limited in fee
simple “so long as the premises are used for the purposes of cricket matches”
confers a determinable fee, in that, the estate may endure forever. It does not
qualify as an absolute fee simple since if it ceases to be used for cricket matches,
which is possible, but not certain to occur, the estate will revert to the grantor or
his estate.

In the case of a determinable fee, there are two limiting events:

[1] Failure of life; and,

[2] An event other than the failure of life.

However, in the case of a fee simple absolute there is only one limiting
event- the failure of the lives of the tenant and his heirs.

The estate is subject to an executory limitation over when there is a grant

of a remainder in fee after the determination of the prior fee simple estate. The
estate then passed to the person entitled to the executory limitation over, but no
to the grantor.

17 | P a g e
 This situation is illustrated by the example: Blackwood’s Country Manor to
my son in fee simple, but if my daughter, Christine, gets an A average at ‘A’ levels,
to my daughter, Christine and her heirs.

It is worthy to not that the limiting event is not bound to occur; the fact of
uncertainty gives the estate the quality of a fee hold estate. For the estate may
endure forever.

In a determinable fee there is a collateral limitation which is interwoven

into the duration of the estate in such a way that it can operate to bring the
estate to an end earlier than the time ultimately envisaged. It is an uncertain
event which sets another boundary for the fee simple estate. Words such as until,
so long as, whilst, during, normally gives rise to an inference that a determinable
fee is intended.

On the occurrence of the specified event and in the absence of an

executory gift over, the estate reverts to the grantor. The grantor therefore
retains some interest in the land given for a determinable fee simple- this interest
is referred to as a possibility of reverter.

2. A Fee Simple upon Condition Subsequent

This estate arises where by the conveyance a condition is attached to the
grant of a fee simple estate which will be defeated if the condition is breached.
Words such as “on condition that”, “provided that”, “if”, “but if it happens that”
gives an indication that a fee simple upon condition is intended.

18 | P a g e
 On the occurrence of a condition attached to a conditional fee simple, the
grantor has a right to re-enter and effectively determine the estate. It is possible
but not certain that the condition will be satisfied, rendering the estate
forfeitable.

Distinction between Determinable and Conditional Fees

The distinction between the two appears very tenuous:

 The distinction turns more on words than on substance, i.e. the intention of
the parties.

Essence of Distinction:

1.Automatic reverter/ affirmative action to divest- on the occurrence of a

determining event a determinable fee terminates, ipso facto, and reverts
automatically to the grantor or his successor. However, in the case of a fee upon
condition subsequent, the grantor must take some affirmative action to terminate
the grant and divest the grantee of the estate. In a determinable fee, the estate
runs its full course and determines automatically on the occurrence of the
specified event. There is therefore no estate to forfeit on the occurrence of the
event.

2. Waiver/ Estoppel- Since in the case of a conditional fee the grantor has
to institute positive steps to terminate the estate, the grantee can plea the
defences of waiver and estoppel; these defences are unavailing in the case of a
determinable fee.

19 | P a g e
 3. In the case of a determinable fee, the limiting event is an integral part of
the formulation of the duration of the estate. Consequently, if the limiting event
of a determinable fee turns out to be contrary to public policy, it vitiates the
whole contract, which is thereby rendered void altogether. However, in the case
of a fee upon condition, the limiting event is a superadded condition and is not an
integral part if the very limitation of the estate. Therefore, if the limiting event of
a fee upon condition is vitiated on grounds of public policy, the grant is not
destroyed in its entirety; only the condition is cancelled; the grant therefore
subsists as a fee simple absolute, as if the grant were made without any condition
attached.

4. Strict Construction- the courts lean very heavily against forfeiture. The
courts require that the limiting event in a fee simple upon condition be precisely
and distinctly specified.

Void Conditions

(1) Restraints on Alienation

It is the inherent quality of an estate that it is freely alienable. Any
condition which totally restrict the power of a grantee of an estate to dispose
of it would be incompatible with his right of ownership and would be
considered void.

20 | P a g e
 If the condition does not render the estate totally inalienable, but
imposes merely a partial restraint on alienation, there is authority for
upholding it.

In Re Macleay (1875) L.R. 20 Eq. 186 A grant subject to the “condition

that [the grantee] never sells it out of the family” was upheld, since it did not
substantially deprive the grantee of the power of alienating the property in
any other way than selling; he was free to sell to members of the family, and
the restraint did not affect the subsequent owners.

(2) Public Policy

A condition which is contrary to public policy will be struck down by the
courts. Where a condition is found to be illegal or immoral, it may fail on
grounds of public policy. A condition in restraint of marriage attached to a gift
of an estate with the object of providing for the grantee whilst unmarried or
separated or divorced is valid. In Jones v. Jones (1876) 1 QBD 279 the property
was devised to three women “provided the said Mary…shall remain in her
present state of a single woman, otherwise…if she shall bind herself in
wedlock, she is liable to lose her share of the said property immediately, and
her share to be possessed and enjoyed by the other mentioned parties, share
and share alike”.

The court upheld the condition as valid. It was evident that the settler
wanted to make provisions for the grantee of his largesse whilst she was
unmarried and not to induce her into celibacy.

21 | P a g e
2. The Fee Tail
This is an estate in land whereby the grant is restricted to the grantee
and his heirs only.

Inheritance restricted to lineal heirs

Only the class of heirs above stated have the right of inheritance in
respect of the fee tail. The class of heirs is therefore taille or talliatum.
[restricted to lineal heirs]. The estate comes to an end if the lineal
descendants run out. This is unlike a fee simple, which can be succeeded to
by heirs collateral if there are no lineal heirs.

Thus a fee tail, unlike its fee simple counterpart is a limited estate in
which an interest subsists in favour of the grantor in the form of reversion
or for a third party in the form of remainder.

Fee tail is therefore lesser in duration than a fee simple estate. For it
lasts for the life of the grantee and only his lineal descendants on failure of
whom the estate comes to an end and reverts to the grantor or the tenant
to whom the grantor has given the reversion by way of remainder.

Powers of Inter Vivos Disposition

The powers of alienation of a fee tail tenant are limited. Unlike a

tenant in fee simple, an entailed tenant cannot prejudice the right of
inheritance of his descendants by disposing of the estate. Since the estate is
for the tenant and heirs of his body, the tenant cannot give title which is
not subject to the interest of his heirs. The result is that an alienation by a
tenant in fee tail can pass only a life estate for his own life, i.e. the life of his

22 | P a g e
grantor/ tenant in fee tail will then be considered as the measuring life. On
the death of the tenant in fee tail the state he gave to the grantee will
determine and the heir of the tenant in fee will recover the estate from the
grantee.

Barring the entail

There was a common law principle that a judgment affecting land

was not only conclusive of the rights between the parties to the suit, but
also barred t the claims of all persons who derived their title from the
parties. This principle was manipulated by lawyers to the advantage of
tenants in possession of an entailed estate. It was generally accepted that a
judgment obtained against a tenant in tail would bind his heirs. So a tenant
in tail who desired to dispose of his estate in fee simple could do so by
simple submitting to judgment in an action instituted by a friend for the
recovery of the estate.

Where such a judgment was obtained in a collusive action, the

interests of all persons claiming through the tenant in tail were barred.
Such a judgment obtained in a collusive action could be set aside by the
heir after the death of the ancestor.

23 | P a g e
 Warranty

“Vouched to warranty” was the process by which the interests of

remaindermen and reversioners could also be barred. For this process a
stranger or a fictitious person brought an action against the tenant in tail.
The tenant in tail would then “vouch to warranty” some third person, who
was presumed to be the original grantor of the land. The action would then
be defended by the person who was alleged to have given a warranty that
if the title given to the tenant in tail turned out to be bad, he, the tenant in
tail’s grantor would recompense the tenant in tail in equal value of the
land. The third person, the tenant in tail’s original grantor, admitted in the
proceedings that the title he gave the tenant in tail was bad. Consequently,
he had to give the tenant a new land of equal value. A judgement to the
effect was given against him. The interests of the reversioners and
remaindermen were thus deflected from the land of the tenant in tail into
new land to be given by the stranger. By this means the stranger became
seised of the land in fee simple, which he would then be competent to
dispose of in any way directed by the tenant in tail.

Fines

A fine was a settlement arrived at with the approval of the court by

parties to a fictitious suit, one of whom was acknowledged under the terms
of the compromised agreement as the rightful owner of the land, the
subject matter of the fictitious action. The fine was then enrolled in the
court’s records. This put an end to all claims to the land. Parties whose

24 | P a g e
 interests in land had not vested in possession could have their rights to the
land barred.

3. The Life Estate

As the term suggests, the holder [referred to as the “life tenant” or

“tenant for life” is granted an interest for the duration of his life. It is a form
often used by spouses or family members generally. There are two types of life
estate at common law:

a) Estate for the life of the grantee: usually expressed thus: “To X for life and
thereafter to Y and Z”. The estate comes to an end at the death of the
grantee- the grantee’s own life is the measuring life. There is therefore no
right of inheritance, for he enjoys the property for the duration of his life
and no longer; and’
b) Estates pur autre vie: usually expressed thus: “To X during the life of Y and
thereafter to Z”. The estate is granted to be held by a tenant during the
lifetime of another person. The measuring life, described as cestui que vie,
is that of a person other than the grantee. On the death of Y the estate
comes to an end. This can also arise where Y, an owner of the life estate,
makes a grant to Z. Since Y cannot give an estate larger than he has, Z will
get an estate which he will enjoy during the life of Y.
Example- (a) is referred to as a determinable estate, which (b) is
referred to as a conditional estate.

25 | P a g e
 Upon X’s death the property passes to Y and Z ([referred to as
remaindermen] who will own the fee simple. The life tenant as X is known, can
enjoy property fully, benefiting from the rents and profits and might even sell
the property, at which point the proceeds of the sale are to be held on trust
for Y and Z, X benefiting from the interest until his death.

Inheritance

A life estate is not an inheritable estate. A’s grant to “T for life” determines
on the death of T, and the heirs of T does not have any claim to succeed to it. The
grantor or settler is equally not competent to reclaim the estate so long as the
person whose life is used to measure the duration of the estate is alive. The
estate has not yet come to an end. The common law developed special rules to
govern succession in such situation.

1. General Occupancy: these rules are applied where the estate is not
conferred on the tenant and his heirs, e.g., in a grant “to t for the life of c”, if T
predeceases C, since T’s heirs are not mentioned in the grant they will have no
claim to the property.

The common law improvised a rule to the effect that the first person to
enter on the land can retain possession and enjoy the property so long as the
cestui que vie lives. Such a person then acquires the seisin and he is describes as a
general occupant.

2. Special Occupancy: This arises where the estate is conveyed or devised

“to T and his heirs for the life of C”. If C survives T the estate continues since.

26 | P a g e
Since the heir is mentioned in the grant, on the death of the ancestor, the heir
takes the property.

The general rules of occupancy were abolished by the Statute of Frauds,

1677 (UK). By this statute a tenant pur autre vie was allowed to devise his estate.
Where a tenant pur autre vie dies intestate and there is no special occupant, the
estate subsisting during the life of the cestui que vie is taken by the personal
representative.

Rights of Use and Abuse- the doctrine of waste

A tenant for life has a relatively restricted right of user. He has the right to
take reasonable estovers from the estate. Estovers are trees, timbers or wood
felled for fuel, or used for the purpose of building or repairing fences, agricultural
erections and implements for the purpose of effecting necessary repairs and
improvements to the house. He has the right to cut only such timber and wood as
is reasonably necessary for his immediate needs and such wood or timber felled
by him should be used on the estate. He cannot keep it in anticipation, i.e. for his
future fuel needs or for future repairs or building. He cannot even sell it with a
view to using the proceeds for repairs or building.

Where the tenant for life is granted a timber estate, he has a right to cut
and sell the timber in consonance with rules of good husbandry. Timber estates
are estates which are cultivated merely for the produced of saleable timber, and
where timber is cut periodically.

27 | P a g e
 The right to cut and sell timber on an estate which was cultivated as a
timber estate at the time of the grant is based on the life tenant’s right to the
income of the estate.

These rights of user are subject to any contrary agreement or covenant in

the deed of settlement.

A tenant for life has the right to work mines which have already been
opened by the grantor.

Limited Right of abuse- waste

Common Law Restrictions Embodied in the Doctrine of Waste

The doctrine of waste is applicable to:

1. a tenant for life

2. A leaseholder
A tenant for life is generally not permitted to commit waste, and he can be
restrained or be liable in damages for waste.

Waste refers to any action which alters the character of the holding or
prejudices the interest of the remainderman. An act can be waste if it is injurious
to the heritance by (a) diminishing the value of ht estate, or (b) increasing the
burden on it, or (c) impairing the evidence of title. It imposes a burden on the
estate if the cost of maintaining it is increased by the improvements added by the
party guilty of waste. The object of this doctrine of waste is obviously to preserve
the property for the benefit of the reversioner or remainderman.

28 | P a g e
 Any act which causes permanent injury to or changes the identity of the
future estate or subjects the reversioner or remainderman to additional
responsibility is considered as a waste. The reversioner or remainderman is
entitled to object to any such improvement and should be able to insist that the
estate should revert to him or his assigns at the termination of the life estate in
the same condition as it was granted; even if the intended change will increase
the value if the estate.

There are four [4] types:

1. Ameliorating Waste: this refers to alterations to the property for the

purposes of improvement. It is only in exceptional circumstances that the
remaindermen would succeed in an action to restrain the tenant for life
such as where for example, a farm is being converted into a market garden
as in Meux v. Cobley (1892) 2 Ch. 253 where the lessee (Cobley, the
defendant) leased a farm from the lessor (Meux, the plaintiff). He
covenanted to “in all respects cultivate and manage the farm, and in every
part thereof in a good, proper and husband like manner, according to the
best rules of husbandry practiced in the neighbourhood.’ The lessee began
converting the farm into a market garden by constructing glass houses. The
lessor tried to obtain an injunction on the ground that the conversion was a
waste.
Held: that the conversion into a market garden did not constitute a breach
of covenant and that there had been no injury to the property and therefore no
waste, or where a holiday camp is to be constructed on a wild stretch of coast. In

29 | P a g e
cases of ameliorating waste, the courts will examine whether a monetary
compensation, rather than an injunction will suffice.

2. Permissive Waste: this occurs when the property is allowed to fall into
disrepair due to neglect or failure or omission to do what will prevent
damage to the inheritance, for example, by the life tenant’s failing to
maintain a house, fences or clean a moat.
A tenant is liable for permissive waste only where he is positively
enjoined by a covenant or agreement to perform those acts which would
prevent the injury complained of.

3. Voluntary Waste: This occurs where the life tenant alters the land to its
detriment; e.g. felling of specially protected trees and the opening and
exploitation of a mine or quarry. It falls short of equitable waste; i.e. acts of
wanton destruction.
4. Equitable Waste: this refers to acts of wanton destruction such as the
stripping of lead from a roof, the destruction of ornamental trees along a
driveway, the pulling down of a house, the cutting down of trees which
were intended to provide shelter. An injunction will lie to restrain such
acts of wanton destruction even if the tenant is unimpeachable of waste.
Acts of wanton destruction will arise where the acts complained of are such
that a prudent man would not do in the management of his property.
The object of equity’s intervention is to prevent the abuse “without
impeachment of waste” dispensation by a tenant for life. Where adequate
words are used to exempt the tenant for life from equitable waste, he cannot
be liable for acts of wanton destruction.

30 | P a g e
 Waste and the Tenant for Life

The tenant for life is liable for voluntary, permissive and equitable waste
unless the instrument creating the tenancy excludes his liability.

He is not generally liable for ameliorating waste. An injunction will not

be normally granted against his commission of this form of waste as it
improves the property.

With respect to the cutting of timber and exploration of minerals, the

law is that the cutting of timber must be reasonable and consistent with the
normal user of the land. Wanton cutting of trees is therefore not permissible,
neither is it permissible to cut fruit trees or trees not designated as timber e.g.
ornamental trees.

Voluntary waste, for which the tenant for life may be liable, occurs
where a previously unopened mine is opened and worked.

31 | P a g e
 Legal vs Equitable Interest in Land

LEGAL INTEREST

A legal interest is one which historically was recognised and enforced by

the common law courts such as the King’s Bench or Common Pleas Courts. These
courts adopted an inflexible approach and would deny a remedy to a deserving
plaintiff merely because he failed to observe the proper formalities. Legal
interests operate in rem and are binding on the whole world.

EQUITABLE INTEREST

An equitable interest is one which the court of Chancery would enforce.

The rules of equity were applied. Equity’s rules habitually mitigated the
harshness of the common law by recognizing new rights, such as the beneficiary’s
interest under a trust, granting new remedies to deserving plaintiffs such as
injunctions and specific performance, despite the absence of formalities.
Equitable interests suffer from the weakness in that they are not binding on a
bona fide purchaser for value without notice.

The Evolution of the Equitable Estate and Interests in Land

Development of Trusts and Equitable Estates

The equitable interest in land developed because of:

(a) the need to escape the harsh feudal incidents of tenure; and
(b) the inflexibility of the common law’s reliance on the seisin/possession as
the primary vehicle for conveyance of land.

32 | P a g e
 The device of the use arose because of the restraints imposed by feudal law
upon the owner of land.

Seisin was important under the feudal system of tenure because the
incidents were only enforceable against the person seised. If you did not know
who is seised, the incidents could not be enforced. Thus:

(a) there could not be an abeyance of seisin;

(b) every transfer had to be open and notorious (livery of seisin)
(c) every transaction must take immediate effect
-the owner of land could not leave his land by will;

-the owner of land could not create future or contingent interests.

Facing these difficulties, landowners resorted to the Institution of Use: -

The landowner conveys his land to some friends, who are instructed to hold
it to his use. They are directed to allow him to enjoy the land during his lifetime,
and he can give further instructions detailing what they shall do with the land on
his death. It may be that they are directed to hold the land to the use of other
members of the landowner’s family or to the use of the church.

N.B. Initially, it was merely a confidence reposed in a friend, and it was not
enforceable in law.

33 | P a g e
Terms: - abeyance of seisin –a lapse between the time of conveyance of the
legal title and the time when the legal title is vested;
-a conveyance that awaits the fulfillment of a condition or the
time when --the proper person in whom it may vest appears;

-the maxim, “The law abhors a vacuum” perhaps came from

this prohibition.

feoffment to uses –the act of conveying a fee to a person

(feofee) to hold on terms directed by the person conveying the fee
(feoffor).

cestui que use –the person for whose use the land was granted
to another. It does not have to be a third party, it could be for the
use of the grantor himself.

passive use –where the feoffee to uses has no administrative

function other than to hold the estate and allow the cestui que use to
enjoy the profits of the land.

executed the use –the beneficial interest of the cestui que use
is converted into a legal fee simple.

Method of creation of a use – e.g. “to B and his heirs to the use of C and his
heirs.”

A________________________B_______________________________C

34 | P a g e
 (feoffor) feoffment (feoffee to use) to the use of
(cestui que use)

(legal estate)
(equitable estate)

Beneficial Result
-no need for public (open and notorious) conveyance;

-cestui que use could convey his interest by will and create future interests;

-it avoided the incidents of tenure, especially relief, wardship, marriage and
escheat and forfeiture.

Statute of Uses 1535

This statute sought to abolish the use in the hope of increasing the revenue
generated by the feudal incidents of tenure by vesting the legal estate in the
cestui que use.

N.B. In the diagram C would become the legal owner and B would drop out
of the picture. This is termed executed the use.

-the statute only affected passive uses, i.e. uses where B had no function
other than to hold the legal interest in fee.

-the statute did not affect active uses, i.e. where the feoffee had other
administrative functions. The feoffee would need to have the legal title in order to

35 | P a g e
perform those functions, such as paying the rents and profits over to the cestui
que use.

-the statute did not affect conveyances of other than that of a freehold
estate, e.g. it did not affect leasehold estate.

The Statute of Wills 1540 was passed as a result of the effect of the Statute
of Uses 1535 to give some testamentary freedom.

See Owosuo for more details

Avoidance of the Statute of Uses

-This statute attempted to avoid the Statute of Uses and led to the creation
of the trust.

-The method of avoidance was to create a use upon a use.

“From A to B and his heirs to the use of C and his heirs to the use of D and
his heirs.”
A_______feoffment_____B__to the use of_____C_______to the use of
_____________D

(feoffor) (feoffee to use) before a (later in

trust for) (cestui que use-

(person who (legal estate) cestui que use

not converted to

36 | P a g e
 conveys a fee) but now has
a legal estate by

legal estate the

statute b/c it

by operation of statute) was

void in law

as being
repugnant to the
legal estate. Equity
recognized and
enforced it.)

Later B was dropped all together and up to the legislative reforms on 1925
the method of creation was : -

“unto and to the use of C and his heirs in trust for D and his heirs.”

This was the evolution of the trust.

Types of trusts:

(a) bare or passive trust

(b) spendthrift or protective trust
(c) active trust
(d) trust for sale
(e) resulting trust }

37 | P a g e
 } Implied Trust

(f) constructive trust }

The use applied only to land, but the subject-matter of trusts has expanded
to such a degree, that at this present day it includes, not only every conceivable
kind of property, but even objects unconnected with property. The trust has
enabled unincorporated associations, such as clubs, trade unions and
nonconformists bodies, which, owing to the indefinite and fluctuating character
of their personnel, are not persons in the legal sense, both to own property and
to fulfill the objects of their formation.

Difference between Legal and Equitable Estate

1. Equitable estates or interests are only recognized and enforced in the

courts of equity;
-whereas at common law the legal interest is conclusive of beneficial
interest-the right to use and enjoy.

2. Legal interests are rights in rem;

-while equitable interest are rights in personam.

Terms: - in rem –against a thing as distinct from a person. It is a right or an

action good against the world because it is attached to the thing
and not the person.

38 | P a g e
 in personam –against specified persons.

bona fide –not only the absence of notice but genuine and
honest absence of notice.

purchaser for value –consideration of money or money’s worth

or in expectation of marriage. Does not include heirs, executors or
donees.

volunteer –a person who is not a purchaser for value.

constructive notice –diligent conduct in a reasonable and

sensible manner, making all those investigations which the purchaser
of land normally makes –investigate the title, inquire for deeds
relating to the land and inspect the land itself.

mere equity –the right to enforce an equitable remedy.

“Legal rights are good against the world; equitable rights are good against all
persons except a bona fide purchaser of a legal estate for value without notice,
and those claiming under such a purchaser.”

Proposition:“If by rights in rem is meant rights enforceable against third parties

generally, as opposed to rights in personam which are enforceable
only against specified persons (e.g. contractual rights), then equitable
rights to property are unquestionably rights in rem, though
somewhat different from rights to property.

39 | P a g e
 Elements

Bona fide
-since equity acts on the conscience, a person must act in good faith to
defeat an equitable interest.

-actual notice of the prior equity is generally conclusive of the bona fides of
the purchaser.

-it is said that the purchaser must also act genuinely and honestly.

Midland Bank Trust Co. Ltd. v. Green [1981] AC 513; [1981] 1 AER
153

In 1961 Walter Green granted an option to purchase Gravel Hill farm to his son
Geoffrey Green. The option, although registrable as a land charge under the Land
Charges Act 1925, was not registered. In 1967 there was a disagreement in the
family and Walter sold the farm to his wife for £500 (it was worth around
£40,000) in a deliberate attempt to defeat the option granted to his son. The wife
then changed her will so as to leave the farm to all five of her children including
Geoffrey. Geoffrey learnt of the sale and sought to enforce the option. The
question for the court was whether the option was binding on the wife or
whether she took the farm free of the option. S 13 (2) of the Land Charges Act
1925 provided that a land charge would be void against a purchaser of the land
unless registered and where an estate contract was under consideration it would
only be void against a purchaser of a legal estate for money or money’s
worth.  Purchaser was also defined in s.20(8) as a purchaser who for valuable c

40 | P a g e
0

00..

onsideration takes any interest in land. The trial judge found for the wife and held
that the option was not binding on the wife. This was reversed by the Court of
Appeal  with Lord Denning MR holding that the sale was not for money or
money’s worth and that the protection of the Act was not available in cases of
fraud where there was a deliberate attempt to defeat an interest. The wife’s
representative appealed to the House of Lords.

Held:

The appeal was allowed. There was no requirement of good faith for a purchaser
under the Land Charges Act 1925. Reference to money or money’s worth
excluded marriage consideration but did not require the consideration to be
adequate.

Lord Wilberforce:

“Suppose—and this may not be far from the truth—that the purchaser's motives
were in part to take the farm from Geoffrey, and in part to distribute it between
Geoffrey and his brothers and sisters, but not at all to obtain any benefit for
herself, is this acting in "good faith" or not? Should family feeling be denied a
protection afforded to simple greed? To eliminate the necessity for enquiries of
this kind may well have been part of the legislative intention. Certainly there is
here no argument for departing—violently—from the wording of the Act.”

41 | P a g e
“This conclusion makes it unnecessary to determine whether £500 is a nominal
sum of money or not. But I must say that for my part I should have great difficulty
in so holding. " Nominal consideration" and a " nominal sum " in the law appear
to me, as terms of art, to refer to a sum or consideration which can be mentioned
as consideration but is not necessarily paid. To equate " nominal " with
"inadequate " or even " grossly inadequate" would embark the law upon
enquiries which I cannot think were contemplated by Parliament.”

Pilcher v. Rawlins (1872) Ch. App 259 - a father set up a trust

for his children. There were three trustees, one of whom was P the children’s
uncle (a solicitor). The trustees advanced money to R on the security of a
mortgage (the mortgage deed explained the existence of the trust). Two of the
trustees died leaving P as the sole trustee.

P and R connived in a fraudulent scheme. R (also a solicitor) prepared an abstract

of title making no mention of the mortgage. R then purported to convey the
property to S and L (who had no notice of the trust or the fraud). Immediately
before that P executed a deed reconveying the property to R free of the mortgage

(despite the fact that the loan had not been repaid). P and R agreed that the
reconveyance to R would only be produced if necessary. S and L had no notice of
this conveyance either.

42 | P a g e
The fraud came to light and the beneficiaries sought a declaration that they were
the beneficial owners and an order that S and L convey the title back to the trust.
They failed on the basis that S and L were bona fide purchasers for value without
notice of a legal estate (Sir G Mellish LJ at 273).

Given the facts above, the conveyance of the property by P to R (with its
reference to the trust) was an essential element of S and L’s title. This did not fix
them with constructive notice. They had acted diligently and at the time of the
purchase had reasonably believed that they had good title. The later conveyance
to R only came to light in the course of the proceedings. At the relevant time, S
and L had ‘neither knowledge nor means of knowledge’ of the trust (Sir G Mellish
LJ at 274).

Purchaser for Value

-certainly when one looks at the origin of the trust, it could be seen that
certain persons may come into the property of the trustee bona fide, that is,
without an intention of defeating the equitable interest of the cestui que trust.
This includes the heirs of the trustee, the personal representatives (executors and
administrators) creditor and persons who were given the estate by the trustee
without consideration (donees) or a squatter. These persons cannot defeat the
prior equitable interest because having got something for nothing, their
conscience is fixed with the equity.

Re Nisbet and Potts’ Contract [1906] 1 Ch 386In re Nisbet and Potts

Contract; 1905

43 | P a g e
 Where a party asserted he was a purchaser in good faith without notice
and for value, the burden of proving all the elements of the defence is upon the
purchaser. A title acquired by adverse possession was not paramount to, and did
not destroy the equitable right of persons entitled to the benefit of prior
restrictive covenants to enforce them against the land.
Farwell J said: ‘Covenants restricting the enjoyment of land, except of course as
between the contracting parties and those privy to the contract, are not
enforceable by anything in the nature of action or suit founded on contract. Such
actions and suits alike depend on privity of contract, and no possession of the
land coupled with notice of the covenants can avail to create such privity: Cox v.
Bishop (1857) 8 De G.M. & G. 815. But if the covenant be negative, so as to
restrict the mode of use and enjoyment of the land, then there is called into
existence an equity attached to the property of such a nature that it is annexed to
and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created
by covenant or contract, cannot be sued on as such, but stands on the same
footing with and is completely analogous to an equitable charge on real estate
created by some predecessor in title of the present owner of the land charged. . . .
effect is given to the negative covenant by means of the land itself. But the land
cannot spend money on improving itself, and there is no personal liability on the
owner of the land

Purchaser not limited to the acquisition of the fee simple but any estate,
e.g. mortgage or lessee.

Kingsnorth Finance Co. Ltd. v. Tizard [1986] 2 AER 54

44 | P a g e
Mr Tizard was the sole registered proprietor of the matrimonial home in which his
wife had a beneficial interest. The marriage broke down and Mrs Tizard moved
out but returned each day to look after their twin children and would stay the
night if her husband was away. Mr Tizard mortgaged the property. On his
application for the loan he stated that he was single. He arranged for the
inspection to take place on a Sunday when he knew his wife and children would
be out. The agent inspecting the property noted that there was occupation by the
children but he found no signs of occupation by the wife. Mr Tizard had said that
she had moved out many months ago and was living with someone else close by.

Held:

Kingsnorth Finance took the property subject to the wife’s interest. The
discrepancy between what Mr Tizard had stated on his application form and what
the agent found when he inspected the property put the lenders on notice. The
lender had failed to take reasonable steps to avoid being fixed with constructive
notice. The inspection was inadequate since it was at a pre-arranged time.

Legal Estate
The purchaser must have acquired a legal estate as distinct from an
equitable estate. Two maxims of equity are relevant here: -

Where the equities are equal the law prevails

He who is first in time is first in equity

Thus, where a purchaser has purchased a legal interest for value without
notice, he is as innocent as the cestui que trust, the equities are equal and there is
no basis upon which equity can interfere. In this case equity follows the law and

45 | P a g e
since the purchaser’s interest is in law-he takes it free of the prior equity-where
the equities are equal the law prevails.

On the other hand, if the purchaser only acquired an equitable interest, he

would lose because he has no better interest than the cestui que trust who
acquired his interest before him-first in time, first in equity.

A mere equity as distinct from an equitable interest is not enough.

The Equitable Doctrine of Notice

Equity does not only affect the person with actual notice but also the
person who turns a blind eye by not investigating what he is buying. Even though
the purchaser did not know of the prior equity, notice is implied. This is referred
to as constructive notice. This involves investigating the title as far back until
there is a good root of title. The purchaser must also inspect the documents upon
which the vendor relies for his title. Finally, the purchaser must inspect the
property. Notice may also be imputed from the purchaser’s agent who has actual
notice, such as his lawyer. This is imputed notice.

Hunt v. Luck [1901] 1 Ch 45

Dr Hunt owned properties for which the rents were collected by his agent. The
land were conveyed to a Mr Gilbert, who then mortgaged them. After the
doctor’s death, his personal representatives challenged the validity of the
conveyance. When the court rejected a challenge to the validity of the deed of

46 | P a g e
conveyance, the claimants said that the mortgagee had notice of the tenancies,
and through that, constructive notice of the interest of the claimants as receiver
of the rents.
Held: The representative’s appeal failed. A purchaser will have constructive notice
of any rights reasonably discoverable by inspection of the property, and, in
particular, from enquiry of any occupier as to his interest and those of which he
holds it. This does not extend to the rights of a landlord. 
Vaughan Williams LJ said that “if a purchaser or mortgagee has notice that the
vendor or mortgagor is not in possession of the property, he must make enquiries
of the person in possession, of the tenant who is in possession, and find out from
him what his rights are, and if he does not choose to do that then whatever title
he acquires as purchaser or mortgagee, will be subject to the title or right of the
tenant in possession. I do not think that there is, for the purpose of ascertaining
the title of the vendor, any obligation on the purchaser to make enquiries of a
tenant with reference to anything but the possession and interest of the tenant.”

City of London Building Society v. Flegg [1988] AC 54-

Mr & Mrs Maxwell Brown purchased Bleak House in 1977 for £34,000. Half the
purchase price was funded by the parents of Mrs Maxwell Brown, Mr & Mrs
Flegg.  Bleak House was registered in the names of Mr & Mrs Brown who held the
legal title on trust for sale. The Fleggs and the Maxwell Browns occupied the
house. In 1982 the Maxwell Browns, in breach of trust, mortgaged the property
for £37,500 to City of London Building Society. The Fleggs were unaware of this
mortgage and the Maxwell Browns used the money for their own purposes. The
Maxwell Browns subsequently defaulted on the mortgage payments and City of

47 | P a g e
London Building Society brought a action seeking possession of Bleak House. The
Fleggs defended on the grounds that they had a beneficial interest in the property
through their contribution to the purchase price and this was an overriding
interest under s.70(1)(g) Land Registration Act 1925 since they were in actual
occupation when the mortgage was taken out. City of London Building Society
claimed that the Flegg’s interest had been overreached since they had paid the
capital moneys to two trustees. The trial judge found for the Building Society. This
decision was reversed by the Court of Appeal. City of London Building Society
appealed to the House of Lords.

Held:

The Flegg’s interest had been overreached. Their right existed only in the
proceeds of sale. Once overreaching operated to detach the beneficial interest
from the land to the proceeds of sale there is no longer an interest in land capable
of being an overriding interest. City of London Building Society therefore took free
of the Flegg’s interest.

Lord Oliver

“If it be the case, as the Court of Appeal held, that the payment by the appellants
in the instant case to two properly constituted trustees for sale, holding upon the
statutory trusts, provides no sensible distinction from the ratio of the decision of
this House in Boland's case, the legislative policy of the 1925 legislation of keeping
the interests of beneficiaries behind the curtain and confining the investigation of
title to the devolution of the legal estate will have been substantially reversed by
judicial decision and financial institutions advancing money on the security of land

48 | P a g e
will face hitherto unsuspected hazards, whether they are dealing with registered
or unregistered land.”

Once an equitable interest is lost to a bona fide purchaser for value without
notice, it is lost forever and cannot be revived even if the interest is later acquired
by someone who had prior notice of the equity when it was in existence.

Equity follows the Law

Since equity follows the law it meant that equitable estates are treated in
the same way to a large extent as legal estates, except where inconvenient. You
could sell, devise by will, inherit or carve up an equitable interest in as much as
the same way as a legal interest.

Statutory Intervention
The Judicature Act 1873 merged the administration of law and equity and
provides that in the case of conflict the rules of equity shall prevail.

Statute has codified some of the doctrine of notice, e.g. Law of Property Act
1925 ss.14, 199.

The system of registration of titles has to a large extent rendered the

doctrine less important in the case of lands registered under that system.

Half Moon Bay Ltd. v. Crown Eagle Hotels Ltd. Privy Council Appeal No. 31
of 2000 (May 20, 2002) The Case

The appellant's application as the original covenantee, for a declaration

that the relevant land was affected by the covenants contained in the original

49 | P a g e
transfer of land to the appellants in 1966, and that such covenants were
enforceable by the appellant was dismissed by the Privy Council, on the grounds
that the appellant had failed to enter the covenants in the 1966 transfer on the
title to the land in the register book. Accordingly, the respondent, and the
respondent's successor in title upon their registration as proprietors of the
relevant land, obtained title free from those covenants.

To sum up, a legal right, estate or interest is on which historically was recognized
and enforced by the common law courts such as the King’s Bench. These courts
tended to adopt a very inflexible approach and would deny a remedy to a
deserving plaintiff merely because he had not observed the proper formalities.
The Court of Chancery, on the other hand, where rules of equity were applied,
habitually mitigated the harshness of the common law by recognizing new rights
such as the beneficiary’s interest under a trust, and by granting new remedies to
deserving plaintiff’s such as injunctions and specific performance, despite the
absence of proper formalities.

In Commonwealth Caribbean jurisdictions, the superior courts are

empowered by statute to apply common law and equitable principles
concurrently. In modern land law equitable principles fall into three categories:

50 | P a g e
  Estates and interest taking effect behind trusts, that is, where the
legal title to the property is vested in trustees holding upon trust for
the beneficiaries, who have equitable interest in the property.
 Estates and interest created without the necessary legal formalities
which are void at common law but which may take effect as
equitable interest.
 Interests created and recognized by equity, such as restrictive
covenants and proprietary estoppel.
It is important to distinguish between legal and equitable interest because
whereas legal estate and interest are rights in rem, binding on the whole world
whereas equitable operate in personma ie against the person who hold the legal
title. Equitable interests are not binding on a bona fide purchaser of a legal estate
in the land who has no notice of the existence of the equitable interest which
effect, will be extinguished. In this connection equity recognizes three type of
notice: (a)actual notice, where the purchaser in fact knows of equitable interest,
(b) constructive notice, where the purchaser ought to and would have acquired
notice if he had made due inquiries and investigated the land and the title; (c)
imputed notice, where the purchaser’s legal adviser acquires actual or
constructive notice and this knowledge is imputed to the purchaser. A purchaser
who is affected by any of these three kinds of notice will be bound by existing
equitable interests in land.

The legal interest in a property is held in a property is held by the person(s)

named on the title. Equitable interest is protected by equity. Equity will look
behind the information that appears on title to determine property rights. For
example, A may be named on the title as the legal owner of a property but B
51 | P a g e
contributed money towards the purchase of the property. In such a case equity
will deem that A holds a portion of the property on trust for B and A will be
required to transfer such portion of the property/or value of such portion of the
property over B .Another frequently occurring example is where A purchase
property in his own name or jointly with B using funds provided solely by B,
Despite A’s name appearing on the title as owner equity will determine that A
holds the property on trust for B. Note however, that a legal interest is always
stronger and better than an equitable interest and is not easily defeated. The
burden of proof is on the claimant in attempting to defeat the legal interest of a
title holder.

Modern land law systems have been significantly affected by the concept of
registration of title which has been introduced by statutes into most
Commonwealth Caribbean countries. Registration of title is guarantee by the
State that the person registered as proprietor is true owner of the land, and a
purchaser need make no further investigation as to the validity of the title, in the
certainty that it would have been thoroughly investigated and approved by the
Land Registry officials before it was first registered. By contrast, the relation to
unregistered land the title is to be found in the title deeds and each prospective
purchaser must go to the trouble and expense of investigating the ‘root of title’ by
perusing the title deeds going back as far as is required in order to be confident
that he will obtain a good title to the land.

Under the registered system, only the titles themselves can be entered fully
on the register. Other interests in land receive protection in various ways such as
by the lodging of a caveat to be endorsed on the certificate of title as a warning to

52 | P a g e
the persons dealing with the property or a caution on the register. Interests
requiring protection are mainly equitable ones such as beneficial interest under
trusts, restrictive covenants, equitable easement, equitable mortgages and
contracts affecting the land such as agreements to lease or sell which, if not
protected, are liable to be defeated by a transfer of the legal estate in the land to
a bona fide purchaser for value without notice of the interest.

Proprietary Estoppel (Acquiescence)

The Doctrine of Acquiescence arises in situations of passive encouragement

and active encouragement. In Ramsden v. Dyson Lord Cranworth LC explained
that if a stranger begins to build on another’s land supposing it to be his own, and
the owner, perceiving his mistake, abstain from setting him straight and leave him
to persevere in his error, a court of Equity will not allow the owner to assert his
title on the land which the stranger has spent money to improve. In Dilwyn v.
Llewellyn, Lord Westbury LC explained that where A tells B “I give you this land
that you may build a house on it”, and B on the strength of that promise, with the
knowledge of A, expends a lot of money in building a house, there is no doubt
that B acquires a right to call on A to perform the contract and complete the
promise.

53 | P a g e
 The main ingredients of this doctrine found in Wilmot v. Barber are:

1. P must have made a mistake as to his legal rights;

2. P must have spent money or done some act or suffered some

detriment due to the mistaken belief;

3. D, the owner of the legal title, must know that his rights are
inconsistent with the right claimed by P. The Doctrine of
Acquiescence is founded upon conduct with knowledge of your
legal rights;

4. D, the owner of the legal title, must know of P mistaken belief. If

he does not know, there is nothing which calls upon him to assert
his own rights;

5. D must have encouraged P in his expenditure or other acts, either

directly or by not asserting his legal right.

This Doctrine is based on fraud. Thus, according to Fry J in Wilmot v.

Barber, a man will not be deprived of his legal right unless he has acted
fraudulently in setting up those rights.

54 | P a g e
 To invoke this doctrine successfully, one has to establish all the conditions
stated above. The first element to be considered is the P’s mistaken belief. In
incurring expenditure or altering his position for the worse, P should have been
laboring under the delusion that he owned the interest. In Pilling v. Armatage
Lord Grant MR explained that it should be a case where the act is done under the
influence of a mistake. Therefore, if P has full knowledge of the facts and the true
state of affairs relating to the land the Doctrine will not apply in his favor. In
Derrick v. Mohammed the defendant could not rely on the Doctrine because he
knew that he was encroaching on land that was not his.

The second condition requires P to establish that on the faith of the

representation he has acted to his detriment or altered his position for the worse.
This was emphasized in Greasley v. Cooke. In this case, Doris Cooke relied on the
encouragement of her late concubine and his brother, the plaintiff, to believe that
she could regard the property as her home for the rest of her life. The Court of
Appeal held that she could not be ejected. Her reliance detriment was foregoing
wages and lost of opportunity for a job. The expenditure and detriment can take
any form, provided it was suffered on the faith of some representation. Even if
the expenditure results in some improvement of the owner’s land, as it happened
in Ives Investment Ltd. v. High the Doctrine can be invoked.

The belief or delusion of the developer must have been induced and
sustained by the owner, his agent or predecessor in title. There should be some
form of encouragement. Where the P fails to establish that either by language,
conduct, silence or inaction he was encouraged, or his activities were even
acquiesced in by the owner, he would not succeed. There should therefore be

55 | P a g e
active or passive encouragement. Such encouragement was given in McClurg v.
Rogers et al, where in an action to enforce payment of a loan secured with the
property of Ps father-in-law, it became evident that the father-in-law permitted P
to build his house on one portion of the property. The property was built by Ps
father-in-law with P’s materials. The court found that expenditure of money on
the land under an expectation encouraged by the father-in-law that he would be
able to live there, gave rise to the equity conferring a license on the P.

The owner cannot be said to have encouraged where he does not know of
his interest and that the acts of the developer were incompatible with his rights.
For the element of fraud which induces the Chancellor to intervene is not present.
This lack of such knowledge on the owner was one of the grounds on which the
defendant’s plea of acquiescence failed in Derrick v. Mohammed. P did not know
that D’s building was encroaching on his land. D, however, did know that he was
encroaching on land that was not his, but he did not know that the land belonged
to P, who succeeded in an action to recover the land with the improvement
developed by the defendant.

Taylor Fashions v. Liverpool Victoria Trustees modified this requirement to

the effect that the Doctrine is not restricted to cases where the defendant knew
his rights or the mistaken belief of the other. The question is simply, whether in
the circumstances of the case, it was unconscionable for the defendant to take
advantage of the mistake which, at the material time, everybody shared. In
Taylor Fashions the P sought to exercise an option to renew a lease of commercial
premises. The option had not been registered under the Land Charges Act 1925,
and was void as against the defendants. The question was whether the

56 | P a g e
defendants were estopped from asserting their strict legal rights against Taylors,
who had spent some UK$12,000 on improving the premises, including the
installation of a lift, in the expectation that the option would be enforceable. The
defendants had acquiesced in the works carried out by Taylors, and at the time
did not suspect that they might have any reason for challenging the validity of the
option. The fourth criterion in Wilmot v. Barber was therefore not fulfilled. The
second plaintiffs, Olds, had been granted a lease in 1949 adjacent to Taylors’
premises, and a further lease in 1963 of another property. The 1949n lease
contained a clause permitting the defendants to determine that lease, if Taylors
did not exercise their option. The 1963 lease contained an option enabling Olds
to renew, if Taylors in fact exercised their option. It was held that Taylors were
not entitled to obtain a renewal of their lease, but the defendants were estopped
from denying that Olds were entitled to exercise their option. Taylor Fashions
Case is one of mutual mistake. It established that there is no need to prove all
five of the conditions laid out in Wilmot v. Barber. However, where there is no
mutual mistake, the court will follow the old rule regarding the five conditions.

The dictum in Taylor Fashions could be used to buttress the decision in

Skinner v. Daniel Reeves et al, where the founder of the property in dispute died
without making a Will. The 1st and 2nd Ps and the D all grew up on the land, living
in the houses of their respective parents. All the parties to the dispute made
improvements to the land without hindrance from whoever at the time was
entitled to the legal estate of the founder. Husbands J concluded that, in respect
of the areas of land they each claim, the Ps were licensees.

57 | P a g e
 The new principle introduced by Oliver J in Taylor Fashions is gradually
gaining currency. It was adopted in Amalgamated Investment v. Texas
Commerce, and the recent case of Re Basham. The deceased in Re Basham led his
stepdaughter to believe that he would leave all his property to her. She and her
husband served the deceased by cooking, cleaning, carpeting, gardening, etc. No
Will was made, but she was given everything by Nugee QC, who was not
persuaded by the defendant’s argument that proprietary estoppel is restricted to
beliefs relating to an existing right rather than a future right, e.g. one arising
under a Will. The learned judge took the view of Oliver J in Taylor Fashions.

The Court tries to help the developer realize his expectations, which have
been encouraged by the owner. It therefore means that the Court will do what is
just and convenient under the circumstances. A cause of action can be founded
on it the facts warrant the award of a positive remedy. The Doctrine thus
operates as a shield and a sword.

Another cases to take into consideration:

Walsh v Lonsdale- where an agreement for a lease is as good as a lease. In

that case, W entered into possession of a cotton mill under a written agreement
with L for a 7 year lease. It was agreed that a deed containing a provision that the
rent should be payable yearly. No deed was executed. W went into possession
and paid rent quarterly in arrears for a year and a half. L then demanded a year’s
rent in advance. W refused to pay. The Court determined that the parties should
be in the same position as if the formal lease had been executed. L obtained
specific performance for the lease so he was able to enforce the demand for a
year’s rent in advance

58 | P a g e
 CO-OWNERSHIP/ CONCURRENT INTERESTS

NATURE

Concurrent interest arises whenever two or more people can hold and /or
enjoy beneficial interests in a piece of land simultaneously. They then become co-
owners.

There are four (4) such recognized interests as follows:

1. Joint Tenancy
2. Tenancy in Common
3. Co-Parency
4. Tenancy by Entireties

59 | P a g e
 However, joint tenancy and tenancy in common are the one’s usually
encountered.

What is Tenancy?

“Tenancy” as used here does not refer to the landlord and tenant
relationship. It refers to the manner in which more than one person enjoys an
interest in land. It is recognized by what are referred to as the four unities. These
are: a) Possession; b) interest; c) Title; and, d) time

(I) JOINT TENANCY

This is a much used form of tenancy. Its effect was stated by Dixon J in
Wright v. Gibbons as follows: “in contemplation of joint tenants are jointly seised
for the whole estate they take in land and not one of them has a distinct or
separate title, interest or possession”.

In Panton v. Roulstone (1976) 24 WIR 462, 465, Watkins JA said that “in
beneficial joint tenancy, each joint tenant holds nothing by himself but holds the
whole together with his fellows.”

Three essential features or characteristics of a joint tenancy are:

60 | P a g e
 I. There are no words of severance such as “in equal shares”; “shares and
shares alike”; “divided between” and “equally”;

II. There is a right of survivorship or jus accrscendi;

III. The four unities are present.

The relationship between joint tenants was described in Panton v.

Roulstone where Robinson P said: “as against third parties [they] are in the
position of a single owner, but as against each other, each has equal rights. Each
has an equal interest in the land. And the interest of each is severable, should he
care to do so in his lifetime. It is only if he dies without having in his lifetime
severed that interest, that his interest is extinguished and accrues to the
survivor”. The above points indicate the unity of possession in a joint tenancy.

CHARACTERISTICS

a) Unity of Possession
This indicates that each co-tenant holds no separate or undivided share in
the property and occupies it “in common”. They cannot therefore exercise any act
of ownership exclusive to the interests of another co-tenant. It was described in
Izard v. Bodine 11 N.J. EQ. 403 thus: “Two men cannot plow the same furrow”.

Some consequences of the unit of possession are:

1. A cotenant who is out of possession cannot bring an action in trespass

against another co-tenant. Thus in Jacobs v. Seward (1872) LR 5 HL 464, a
co-tenant was held not liable in trespass for cutting a crop of grass on the

61 | P a g e
 land which was co-owned. Lord Hatherley L.C. remarked that it was “idle to
talk of trespass as a consequence of a man making hay upon his own field-
for it is his own- or a moiety of it at least, and no definite portion of it is
mapped out as his moiety”.
2. A co-tenant does not have to pay rent to the tenant out of possession.
However, where interests are being determined, rent may be payable. Two
cases illustrate this principle. In Jones v. Jones (1977) 1 WLR 438. The
plaintiff was the defendant’s stepmother. The defendant had been living
elsewhere, when his father bought him the disputed house. The defendant
left his job and council house and went to live in the disputed house to
which he contributed a quarter of the purchase price. The defendant
understood from his father that he owned the house. His father died, and
the title of the house vested in the plaintiff. The plaintiff tried to force the
defendant to pay rent and he refused, so she tried to get possession of the
house. In that case the court found in the defendant’s favour because he
had contributed to the purchase price of the house. Two years later, the
plaintiff brought proceedings for an order that the house be sold or
alternatively for rent to be paid. The judge ordered that the defendant pay
three-quarters of a fair rent to the plaintiff, the house was to be sold if he
failed to do so. The defendant appealed.
Held: the plaintiff and the defendant were equitable tenants in common,
and that one tenant could not claim rent from another even though he was in
occupation of the whole property.

In Suttill v. Graham (1977) 1 WLR 819, after a reconciliation, a husband and

a wife bought a house jointly (it was in both their names) in equal shares, the wife

62 | P a g e
left and the husband subsequently got a divorce. They both remarried [different
people], the husband continued to live in the house and pay the mortgage
installments. The wife appealed for a declaration that she was entitled to half the
beneficial interest in the home and for an order of sale. The husband contended
before the court that the wife’s share be reduced and he credited with one-half
the mortgage of the mortgaged installments; including both capital and interest.

The judge held that he should be credited with only one half the capital
repayments because they had reduced the principle sum owing and to that extent
the value of equity. The husband appealed.

Held: appeal dismissed. “…that the mortgage interest paid by the husband
was properly to be regarded as equivalent to rent or payment for use, occupation
and enjoyment of the property; that since the husband had not submitted to be
charged with an occupation rent and had resisted sale of the property, it was
wrong to charge the wife with half the mortgage interest and thus relieve the
husband of paying any rent, and that, accordingly, the judge had reached the right
conclusion.”

3. A cotenant who is in possession is not obliged to keep the property idle for
fear that he might have to pay rent to his cotenants. Thus a co-tenant is
entitled to occupy exclusively where this does not injure his co-tenants or
cause loss of rents from prospective tenants.
4. A cotenant cannot evict another cotenant. If a cotenant is evicted he can
maintain an action of ejectment against his dispossessor. In Forbes v.
Bonnick (1968) 11 JLR 67, F and B lived together as man and wife, both
contributing to the purchase price of the property and to the construction

63 | P a g e
 of the house which they built. B served F a notice to quit, but F remained
and was sued by B for recovery of possession. The magistrate ordered F to
quit. F appealed successfully, the Court of Appeal relying on Lord Denning’s
dictum in Bull v. Bull (1955) 1 ALL ER 253 as follows: “…when there are two
equitable tenants in common, then until the place is soled, each of them is
entitled concurrently with the other to the possession of the land and to
the use and enjoyment of it in a proper manner; and that neither of them is
entitled to turn out the other”.
5. A cotenant will be able to eject another cotenant will be able to eject
another cotenant where it is found that they cannot mutually continue in
occupation together. This is usually a question of fact. Statutory provisions
such as the Domestic Violence Act can have the effect of ejectment or
ouster. The cotenant in possession incurs liability where he excludes the
other cotenant from possession of the property or where by his conduct
the other cotenants are prevented from deriving any benefit from the
property.
6. In Jones v. Jones [1977] 1 WLR 438, it was held that a tenant in possession
who is not guilty of ouster is not liable at common law to account to other
cotenants for rent received. In England the common law position was
modified by an old statute which provided that the cotenant should keep
only such portions of the rent as are proportionate to his interest. This
statute is known as the Statute of Anne, Administration of Justice Act
1705. This statute vested a cotenant with right of action “against the other,
as a bailiff for receiving more than comes to his just share or proportion”.

64 | P a g e
7. If the cotenants agree that one cotenant will receive the rents on behalf of
the others, the recipient must account to the others [agreement], and that
cotenant acting as agent can be sued on account for the rents and profits
from the property.

8. Where the co-tenancy is being severed and the claimant in seeking

compensation for any expenditure on the property, if he has been in
occupation, he must account for the benefit of his occupation, that is; the
value to him in not having paid rent. This is the effect of the application of
the maxim “he who seeks equity must do equity”, suits for partition being
considered as proceedings in equity.

9. If a cotenant derives profit from putting the property to good use at his
own expense, e.g. through farming, he does not have to share the profits
with his cotenants. This was held in Henderson v. Eason (1851) 17 QB 701.
It is thought however, that if the property contains valuable minerals and a
cotenant exploits a mine or quarry to his own benefit, he may be liable to
his cotenants.

10.A cotenant who is in possession must keep the property maintained and
may not seek contribution from other cotenants. In Leigh v. Dickeson
(1884-85) 15 QBD 60, the plaintiffs were suing, on behalf of a lady for
whom they had acted as trustees and who was the defendant’s cotenant,
to recover monies owed by the defendant after he had stayed after the

65 | P a g e
 expiration of the lease. He stayed as a tenant at sufferance. Therefore he
owed money, for the use and occupation of the property. The defendant
counterclaimed on the premises that he had spent money on repairs and
improvements to the property, his aim was to set off some of the money he
owed.
Held: “one tenant in common of a house who expends money on ordinary
repairs had nor right of action against his cotenant for contribution”. Or more
simply put; a cotenant is not entitled to recover expenses for voluntarily
improving the property, but may recover where there was an agreement with
other cotenants for such improvements whether such agreement be implied or
express.

Jus Accrescendi- The Right of Suvivorship

This describes the principle by which if there is no severance of the joint

tenancy, the last survivor(s) of the joint tenants take the fee simple absolutely
defying the heirs of the deceased co-owner. The principle demonstrates the
maxim totum tenet et nihil tenant. [the parties own everything, yet nothing]. For
by himself the deceased tenant did not hold anything and could not therefore
have left any estate or part thereof to be inherited. It was only with the co-owner
that he was entitled to the whole estate.

The right of survivorship is an indispensable incident of joint tenancy. It

cannot therefore be overridden by testamentary disposition. Thus an interest
under joint tenancy cannot be inherited under an intestacy or under a will.

66 | P a g e
 In the event of death of joint tenants in circumstances where it is difficult to
determine who died first, the common law conceives that there can be no
survivorship and the property would pass to the heirs of the joint tenants as
themselves joint tenants.

At common law where the deaths can be determined in time, the property
passes to the younger or the youngest as the case may be.

The Barbados Succession Act [s. 105] provides that where the death of the
joint tenants occur at the same time, the younger is deemed to survive the last. A
similar provision is contained in the Trinidad and Tobago Succession Act [s. 2 (2)].
In both situations this is so unless the court rules otherwise.

The jus accrescendi creates hardship for beneficiaries of joint tenants

where those beneficiaries are not the same people. When they are, as in the
children of a couple, it can be beneficial in saving estate duties.

Severance of joint tenancy results in a tenancy in common to which the

principle of jus accrescendi does not apply.

A joint tenant who kills his cotenant will not benefit from jus accrscendi as
equity will not allow him to benefit from his wrong.

In Hickman v. Pacey (1945), four persons two of whom had made wills
benefiting some of the others, were killed by explosion of a bomb bursting in a
London dwelling house in which they were and demolishing it so as to bury them
in ruins. There was no evidence to show whether any of the deceased had
survived the others:-

67 | P a g e
 Held: that in the absence of such evidence they had died in circumstances
rendering it uncertain which of them survived the other or others within the
meaning of Section 184 of the Law of Property Act (1925) (UK), and that
accordingly in the administration of their estates by the executors if the
respective wills he younger of the deceased should be deemed to have survived
the elder.

An inference drawn from the facts, that they died simultaneously would
not make the section inapplicable and in any case would not be justified on the
facts disclosed.

In Re Lindop (1942) Ch. 377 a husband and wife who were living in the
same house, and slept in the same room, were killed in an enemy air raid. The
house was struck by an explosive bomb and demolished, and the bodies were
found on the ground floor underneath their bedroom suffering from multiple
injuries. The evidence showed that they must have been both instantly killed by
the blast of the explosion, and two witnesses who found and examined the bodies
expressed the opinion that the death must have been simultaneous. The husband
who made his will in favour of his wife was the elder:-

Held: that it was impossible to say, on the evidence, that both husband and
wife died at exactly the same moment of time, and therefore the presumption
created by Section 184 of the Law of Property Act (1925) (UK), was not rebutted,
and the wife as the younger must be deemed to have survived her husband.

The section creates a rebuttable presumption, but does not give the court
any discretion to disregard it if the court came to the conclusion that it would be
unfair or unjust to act upon.
68 | P a g e
 THE FOUR UNITIES

Unity of Interest

Each joint tenant holds an interest with his fellow joint tenants, equal in
extent, nature and duration. A leaseholder and a freeholder could not therefore
be joint tenants.

The unity of interest requires that any transaction involving a third party
affecting the estate can only be affected if all the joint tenants concur and execute
it.

In Singh v. Mortimer (1967) 10 WIR 65, the unity of interest is

demonstrated. There A contracted to purchase property from B’s husband and B’s
husband’s sister, C. C died, unknown to her brother and the purchaser. The Court

69 | P a g e
of Appeal in Guyana held that the contract was not enforceable as the intention
was to convey the whole estate and the contract had not been executed by both
joint tenants.

In Joseph v. Joseph (1961) 3 WIR 78 a husband and wife owned property

jointly. The husband is the appellant and the wife is the respondent. The husband
wanted to transport the property and advertised to this effect. The respondent,
his wife opposed the conveyance. She applied for an injunction to prevent the
appellant from passing the transport, declaring that her position was just, legal
and well founded. The court found that she had an equitable interest, but she did
not put a value on her interest. However, the court found that “quantum” could
be decided upon when the question was raised in the proper way and granted the
declaration and injunction.

Held: once it was established that an opponent of a transport has an

interest in the land, either party can take proceedings to have the quantum of the
interest determined, and the respondent’s opposition should therefore be
upheld.

Unity of Title

The instrument creating the joint tenancy must be the same. If by will,
conveyance or based upon an adverse claim, it must be derived similarly.

Unity of Time

The interest of each joint tenant must vest at the same time. A life tenant
and a remainderman could not therefore be a joint tenant.

70 | P a g e
 (II) TENANCY IN COMMON
CHARACTERISTICS

There are two distinctions between a joint tenancy and a tenancy in

common:-

1. There is no right of survivorship (or jus accrescendi) in a tenancy in

common.
2. A tenant in common holds a separated distinct share in property, unlike a
joint tenancy where the shares are not separate or distinct and will only
become so after severance at which point the interests at co-tenants will be
under a tenancy in common.
Unlike the unity of possession, the unities of time, title and interest need
not be present under a tenancy in common.

In Li v. Walker (1968) 12 WIR 195. The respondent’s mother had divided a

lot in two halves (or so she thought) by building a fence. The respondent occupied
one half and the appellant the other, each owning their half. It was found by two
surveys that the fence at one end of the appellant’s half deviated from the true
dividing line. The appellant contended that he was entitled to his mathematical
half. Held: the parties were each entitled to one-half division of the lot in
question, and to a partition thereof, so that each may have title of his rightful half.

A. METHODS OF CREATION
(I) JOINT TENANCY
A joint tenancy is created where land is conveyed to two or more persons
unless:-

71 | P a g e
 1. There are words of severance;

2. One of the four unities is missing;

3. Where equity presumes a tenancy in common, equity will prevail to

impose tenancy in common on the tenants who will retain the legal title as joint
tenants, but hold the legal joint tenancy subject to their interests which will be
held under a tenancy in common.

The survivor may then be a trustee for himself and personal

representatives of the deceased co-tenant. However, see Singh v. Mortimer
(1966). From this case it seems that the courts in the West Indies [or possibly only
in Guyana] are more likely to hold that a tenancy in common exists on the ground
that (1) this was the intention of the parties because people believe that all co-
ownership is tenancy in common (per Persaud J.) or (2) Roman-Dutch law applies
in Guyana on this point, which recognized only tenancy in common (per Cummins
JA) How valid are these reasons?

(II) TENANCY IN COMMON

A tenancy in common arises where a joint tenancy does not exist for some
one or more of the following reasons:-

1. There are words of severance, e.g., where the property is

conveyed or devised “to share and share alike”;

Christian v. Mitchell- Lee (1969) 13 WIR 392

2. Any one of the unities of time, title or interest is missing;

3. Where equity presumes a tenancy in common;

72 | P a g e
 4. Where statute presumes tenancy in common, e.g. in Antigua, Real
Property Ordinance, 1873, Cap. 289:
I. Partnership Assets
II. Provision of purchase money in equal shares
III. Loans on Mortgage
Presumption of Tenancy in Equity

Equity detests joint tenancies and as such the doctrine of jus accrescendi is
considered odious. The reason for this abhorrence is that in a joint tenancy there
is no equality except the equality of chance. Therefore equity imposes a tenancy
in common in place of a joint tenancy wherever the circumstances warrant such
interference.

Equity’s abhorrence towards joint tenancies is manifested in the following

three situations, where equity would treat persons who are common law joint
tenants as tenants in common of the beneficial interest. The effect is that at law
the survivor would be entitled to the whole estate but in equity he would be
vested with his own share as well as the share of the deceased on trust for the
personal representatives of the deceased co-tenant:

1. Purchase in Equal Shares

Where the purchase money is provided in unequal shares by A and B and
the land so purchased is conveyed to them as joint tenants, on the death of A, B
the survivor, will become entitled at law to the whole property. But in equity’s
eyes he will hold A’s share on trust for A’s personal representatives. [See Panton
v. Roulstone- above- the case supports and is manifest of the fact that equity
abhors a joint tenancy because of the incident of jus accrescendi].

73 | P a g e
 2. Loan on Mortgage
If the joint tenants are granted a loan which is secured by a mortgage
executes in their favour as joint tenants, their beneficial interests in the
mortgaged property takes on the character of a tenancy in common. The fact that
the transaction involves a loan rebuts the presumption of a joint tenancy.
Therefore, there is a presumption of a tenancy in common where there is a
mortgage, with the result that the mortgagees will at law hold the legal estate as
joint tenants, but will be considered as tenants in common of the beneficial
interest. In the event of the death of one of the mortgagees, the survivor
becomes a trustee for the personal representative of the deceased mortgagee to
the extent of the deceased mortgagee’s share of the loan.

3. Partnership
This is best explained by the maxim ius accrescendi inter mercatores locum
non habet- the right of survivorship has no place among merchants- therefore,
where partners acquire property they are presumed to holds as beneficial tenants
in common.

IV. DETERMINATION
(I) JOINT TENANCY
A joint tenancy may be converted into a tenancy in common by the
following means:-

(a). Alienation inter- vivos by one of the joint tenants. Unity if title will
be thereby destroyed;

(b). Subsequent acquisition by one of the joint tenants of an additional

estate in the land. Unity of interest will thereby be destroyed.
74 | P a g e
 (c). By deed conveying his interest to trustees on trust for himself.

(d). Where the Law of Property Act, 1925, s. 36 (2) applies by giving
notice of severance to the other joint tenant.

Severance

This literally includes any act which has the effect of destroying the joint
tenancy, and this may involve partition. Partition will occur where the unity of
possession is destroyed. Here the parties will take their individual shares and
there will be no co-ownership.

However, the term severance is used in its strictest sense to connote the
process whereby a joint tenancy is converted into a tenancy in common.
Severance is available to joint tenants as of right for the purpose of avoiding
the offensive incidence of survivorship, without necessarily dissolving the unity
of possession.

Severance can be affected by destroying the unity of time, title or unity

of interest through any of the following methods as laid down in Willams v
Hensman

1. Alienation by any joint tenant;

2. Acquisition of a greater interest;
3. Mutual agreement or course of conduct;
4. Homicide
Note that joint tenancy of the legal estate cannot be converted into
tenancy in common in Belize.

75 | P a g e
 Alienation

Inter vivos: where a joint tenant alienates his interest inter vivos, his
grantee (P) takes the interest conveyed to him as a tenant in common with other
joint tenants, who inter se will retain their rights as joint tenants.

For severance to be effected by alienation it should involve a disposition by

means of which the unity of title is destroyed and a separate titles vested in the
grantee, who is thereby entitled to the possession of a definite undivided share of
land.

Acquisition of Greater Interest.

The subsequent acquisition of a greater or further interest in the land held

on a joint tenancy will destroy the unity of interest and thereby turn the joint
tenancy into a tenancy in common with respect to the interest of the acquirer and
other joint tenants, who remain inter se as joint tenant.

Severance will be effective if a different estate is created, but not when the
estates affected are the same.

Homicide

Where a joint tenant kills his cotenant he is denied the right of survivorship,
for equity will bar him from benefiting from his own crime through the doctrine of
jus accrescendi. At law jus accrescendi will allow him to have the whole estate,
but in equity he would hold the legal title subject to the beneficial interest of
himself and the estate of his victim. The beneficial interest is held under a tenancy
in common.

76 | P a g e
 Mutual Agreement or Course of Conduct.

If joint tenants enter into an agreement to hold the property as tenants in

common; that can have the effect of severance. Thus where by their conduct the
joint tenants have shown a mutual intention to destroy the joint tenancy the
court will give effect to that intention.

(II) TENANCY IN COMMON

A tenancy in common may be determined:

(a). By converting into sole or separate ownership; i.e.

I. Union in one tenant

II. Partition

Partition

The common law permits all co-owners of full age to partition the land if
they all agree. The unity of possession will then be destroyed and each of them
will have exclusive ownership of his allotted piece.

Partition is only possible where they all agree, however, an agreement for
partition has no effect unless it is sealed.

F. CONCURRENT INTERESTS WHERE ENGLISH LAW OF PROPERTY ACT HAS

BEEN ADOPTED

1. A tenancy in common can no longer exist in legal form- it exists only as

equitable interest.

2. Land held by co-owners is automatically subject to a trust for sale.

77 | P a g e
 Therefore where the 1925 legislation has been adopted the co-owners
must always be joint tenants of the legal estate even though there are, for
example, words of severance.

N.B.: a legal joint tenancy cannot be severed.

Equitable joint tenancy and tenancy in common subject to all rights and
liabilities etc. as under common law.

Trust for sale

This term when used in relation to land, means one immediately binding
[i.e. imperative] trust for sale, whether or not exercisable at the request of any
person, and with or without a power or discretion to postpone sale.

All trusts for sale now take effect as trusts of land by virtue of the Trusts of
Land and Appointment of Trustees Act 1996, Section 1 (2)

Trusts of sale look after the equitable interests enjoyed by beneficial

owners. Thus in every case in which beneficial ownership of land is split into
successive interests [other than leases], the interest are equitable.

The trust of land now embraces situations [primarily co-ownership and

intestacy] where statutory trusts for sale were imposed before the 1996 Act;
expressly created trusts for sale and bare trusts of land [where the land is held for
an adult beneficiary absolutely entitled]. The legal estate is vested in trustees,
who have a power of sale when the land is sold by the trustees. [or by the tenant
for life of an existing strict settlement], in whom the legal estate is vested, the
purchaser takes free from the beneficial interests which are transferred to the

78 | P a g e
proceeds of sale. Thus the beneficiaries have interests in the proceeds which are
equivalent to those which they had in the land.

FIXTURES AND CHATTELS

INTRODUCTION & DEFINITIONS

As we discussed in Lecture 1, real property includes land. Land is viewed in

the eyes of the law as being comprised of buildings and anything affixed to the
land. Land only includes those structures that are affixed to the land, not those
which can be removed.

Chattels are items of movable personal property.

Fixtures are chattels which are so affixed to land to qualify as part of the
land or realty. This comes from the maxim quicquid plantatur solo solo cedit i.e.
whatever is affixed to the land becomes part of it and thereby becomes the
property of the owner of the soil.

79 | P a g e
 Consider this example. A door frame in the carpenter’s shop which is ready
to be transported to the building site does not become land because it is
measured to fit the door of the building on the land in question. In the shop, it is
a chattel. As soon as it is affixed to the building it becomes part of the realty and
ceases to be personalty.

Let me introduce you to the concept of a chattel house which is quite

frequently seen in the Eastern Caribbean islands and in rural parts of Jamaica. I
have emailed 2 pictures of chattel houses in Barbados to aid our understanding of
the concept.

It is a board or wooden one-storey house normally built in sections. It is

constructed so that it can be conveniently removed in whole or in sections and
relocated to another location. Many judicial decisions have had to consider
whether a chattel house is a chattel or a fixture.

RIGHT OF REMOVAL

When a chattel becomes a fixture, its title merges with the title to the land
so that the owner of the land becomes the owner of the chattel. The owner of
the chattel loses his title to it and cannot lay claim to the land. This is significant
since the owner of the land is entitled to the fixture even if the chattel which was
affixed to his land did not belong to him but belonged to a third party, who
thereby loses his ownership of the fixture to the land owner.

The law recognized the unfairness and hardship of permitting this rule to
operate strictly. The law then provided for the owner of the chattel to have the

80 | P a g e
right of removal under well-defined conditions. In each such case, the following
must be determined:

Whether the chattel has become a fixture or not; and

Whether the law would permit the owner of the chattel to remove the
fixture.

If the answer to question 1 is yes, then one may move on to consider

question 2. If the answer to question 1 is no, then there is no need to consider
question 2. This is because if a chattel has not become a fixture then the owner
of it always has the right to remove it without hindrance.

TEST FOR DETERMINING WHETHER ITEM IS A CHATTEL OR FIXTURE:

INTENTION

In the case of Mitchell v Cowie Wooding C.J. lay down the formula for
determining whether a chattel had become a fixture or not.

A house may be a chattel or a fixture depending upon whether it was

intended to form part of the land on which it stands. But the intention is to be
determined objectively rather than subjectively, that is to say, according to the
circumstances as they appear and by the application of rules such as are set out
hereunder.

To distinguish chattel from fixture, a primary consideration is whether or

not the house is affixed to the land.

If the house is not affixed to the land but simply rests by its own weight
thereon, it will generally be held to be a chattel unless it be made to appear from

81 | P a g e
the relevant facts and circumstances that it was intended to form part of the land,
the onus for so doing being upon him who alleges that it is not a chattel.

If the house is affixed to the land, be it however slightly, it will generally be

held to form part of the land unless it be made to appear from the relevant facts
and circumstances that it was intended to be or continue as a chattel, the onus
for so doing being upon him who alleges that it is a chattel.

Specifically as regards a house affixed to land by a tenant thereof, a

circumstance of primary importance is the object or purpose of the annexation.

To ascertain the object or purpose of the annexation, regard must be had

to whether the affixation of the house to the land is temporary and for use as a
chattel or is permanent and intended to be for the better enjoyment of the land.
But for this purpose it must at all times be borne in mind that the intention or
right of the tenant to remove the house from the land on the cesser of his interest
as tenant with the result that no improvement will accrue to the landlord's
reversionary interest does not make the affixation (albeit that it is in one sense)
temporary. The critical consideration, therefore, is whether the tenant in affixing
his house to the land has manifested a purpose to attach it thereto so that it
becomes and remains a part thereof coterminously with his interest as tenant.

The overriding consideration in determining whether a chattel has become

a fixture is therefore the intention with which the object was affixed to the realty.

The following factors are used to ascertain intention:

The relation to the land of the party making the annexation;

82 | P a g e
Degree of annexation (mode of annexation);

Purpose of annexation;

Damage to the land and the chattel on removal;

Adaptation.

We will discuss each factor in detail.

Annexation to one’s own land

Where one attaches a chattel to one’s own land, it is not inconceivable to

expect him to have intended to make it part of his land. In the Guyanese case of
Burke v Bernard TB (P’s brother) put up a two-storey house on his own land. The
upper storey was made of wood resting on masonry pillars and wooden pillars.
TB sold land to D in order to pay off a debt. In advertising the land for sale, here
was no mention that the house was separate from the land. TB died. P laid claim
to the house. D had effected improvements to the house and refused to give P
possession.

In the Court of Appeal, P’s claim was rejected. The Court found that the
house was a fixture and not a chattel. The Court said that it would have been
obvious from the nature of the property and the relationship of TB to it that he
intended to make the structure part of the land which belonged to him.

Where a tenancy of a bare land is short or can be determined with a short

notice of one month, it is unreasonable to impute to the tenant an intention to
‘attach’ his chattel permanently to the land so as to form part of the land in
which, under such circumstances, he has an unsecured tenure.

83 | P a g e
 In Leigh v Taylor Lord Halsbury put it this way:

“I put the case: Suppose this had been a tenant from year to year, and she
put up these things, is it conceivable that a person would for the purpose of a
tenancy from year to year put up these things exactly in this way if thereby they
made a present of £7000 to the landlord?”

Degree of annexation (mode of annexation)

A chattel will rank as a fixture if is united to the land or affixed to some

object which is physically attached to the land. There must be physical
connection with the land or something which forms part of the land.

If soil is excavated so that it could receive an article which is then cemented

this satisfies the test. As such, a veranda attached to a house may be considered
a fixture. The law usually requires that the attachment be substantial.

In the House of Lords decision of Elitestone Ltd v Morris Lord Lloyd stated
that

“A house which is constructed in such a way so as to be removable,

whether as a unit or in sections, may well remain a chattel, even though it is
connected temporarily to mains services such as water and electricity.”

However in that case, D had purchased a £250 bungalow on a lot. D paid

an annual licence fee to P for the lot on which the bungalow stood. The bungalow
was not like a Portakabin or a mobile home. The nature of the structure was that
it could not be taken down and re-erected elsewhere. It could only be removed

84 | P a g e
by the process of demolition. The House of Lords determined that the bungalow
formed part of the land and was a fixture.

Damage to attached chattel on removal

Where the circumstances, the situation and the nature of the structure
placed on land are such that the removal of the structure would lead to its
destruction, the obvious inference is that it was not intended to be removed from
the site and that it was intended to remain permanently on the land. It therefore
ranks as a fixture.

In Mitchell v Cowie, M’s house was built of hollow clay blocks which were
plastered. It stood on concrete pillars and was covered with galvanized iron
sheets. The house could not be removed without being disintegrated and could
not have been intended to be relocated without losing its identity. The Court held
that the house was a fixture and not a chattel.

In Eva Fields v Rosie Modeste, a house was built of tapia, plastered with
concrete noggin comprising of two rooms resting on wooden pillars, covered with
galvanized iron sheets. The Court of Appeal considered that the house built of
tapia could not be moved without its complete disintegration. It was therefore a
fixture.

Purpose of Annexation

With this factor, the question is whether the chattel has been fixed for its
more convenient use as a chattel or for the more convenient use of the land or
building.

85 | P a g e
 In Leigh v Taylor, a tapestry was fixed to the walls by tacks to a framework
of wood and canvas which was nailed on to the wall, together with moulding
fastened to the wall. The Court determined that the attachment was necessary
for the adornment and proper enjoyment of it as tapestry and not for the
improvement of the land. It was used for the decoration of a room and was liable
to be moved from time to time or replaced after a relatively short number of
years. Lord Halsbury wondered ‘in what her way … could they have been
fastened than they were”.

Items of that nature, ornamental objects, household appliances, domestic

equipment, residential accessories or utilities are not to be considered as fixtures
since their attachment is no more than is necessary for them to be used for
normal purposes.

One must consider not only the purpose of the item but also the purpose of
the link between the item and the land or building to which it is attached.

Adaptation

If an article is constructed an adapted for an attachment to the realty and

there is an intention to make it part of it, it would qualify as a fixture. Specially
cut stone and fashioned structural iron found on land with an uncompleted
building may be considered fixtures, if they were dedicated to be employed to
complete the building.

Where the article has no special or peculiar adaptation to the realty and is
adapted to general use or can be used with equal efficiency in any like estate, it
will retain its chattel character.

86 | P a g e
 Custom and Usage

Several Caribbean writers have advocated for custom and usage to be used
to determine the status of a chattel house on the basis of custom and usage. In
other areas of land law, matters on which express agreement by the parties is
absent, may be open to explanation by the general usage and custom of the
country where the land is situated.

The chattel house developed as a result of insecurity of land tenure which

followed emancipation. Tenants were often evicted at short notice. What the
worker developed was a movable house which he could take with him if he was
expelled from the dwelling land. It is the commonly prevailing mental conception
in the Caribbean that a chattel house is personalty.

Other cases

Holland v Hodgon: Holland v Hodgson (1872) LR 7 CP 328

The owner of a mill purchased some looms for use in his mill. They were
attached to the stone floor by nails driven into wooden beams. They could quite
easily be removed. The owner then mortgaged the mill and failed to keep up the
payments and the mill was repossessed. The question for the court was whether
the looms were fixtures forming part of the land or whether they remained
chattels.

Held: The looms had become fixtures and thus formed part of the land
mortgaged. Blackburn J  introduced the degree and object of annexation test: “ an
article which is affixed to the land even slightly is to be considered as part of the

87 | P a g e
land, unless the circumstances are such as to shew that it was intended to all
along continue a chattel, the onus lying on those who contend that it is a chattel.”

Under this test, the question to be asked is whether the chattel was
attached to the land to enable the object to be better enjoyed as a chattel, or for
the more convenient use of the land. Blackburn J on the object of annexation:
"Thus blocks of stone placed one on the top of another without any mortar or
cement for the purpose of forming a dry stone wall would become part of the
land, though the same stones, if deposited in a builder's yard and for convenience
sake stacked on the top of each other in the form of a wall, would remain
chattels."

National Business Printing Ltd v Carib Spray Ltd: cant find this one guys.

Botham v TBS Bank plc- Botham v TSB Bank (1996) 7 P & C R D 1  Court of
Appeal

Mr and Mrs Botham defaulted on their mortgage and removed various

items before the bank took possession of the house. The Court of Appeal were
required to consider whether various household items were fixtures or chattels.

Held: The bath, lavatory and bathroom fittings were fixtures in addition to
the kitchen sink and units. The curtains, carpets, light fittings, kitchen appliances
such as washing machines, dishwashers, cookers were chattels. Roch LJ: “If the
item viewed objectively, is intended to be permanent and to afford a lasting
improvement to the building, the thing will have become a fixture. If the
attachment is temporary and is no more than necessary for the item to be used
and enjoyed, then it will remain a chattel.”

88 | P a g e
 Smith v City Petroleum Co Ltd- in Smith v City Petroleum [1940] 1 All ER
260, it was held that a tenant could remove petrol pumps from the land because
they were trade fixtures and could easily removed since they were only bolted to
the land. However, it was held that the petrol tanks could not be removed
because they have become an integral part of the land and could not easily
detached.

Dibble v Moore- a greenhouse without permanent foundations was a

chattel.

Berkley v Poulett- In Berkley v Poulett [1977] 1 EGLR 86, pictures were fixed
in the recesses of paneling of two rooms of the estate of the defendant and there
was a heavy statue of a Greek athlete. The estate had been purchased by the
plaintiff, and the defendant removed the items. The plaintiff sued for
compensation or delivery of the items. Scarman LJ viewed that the pictures and
the statue was much to the taste of the occupier of the estate at that time and
were not fixtures which passed to the purchaser of a house but chattels that the
vendor could remove.

Also it can be argued that a tenant erects a structure on the land, he does
not do so for the enjoyment of the land of another person, but for the
accommodation that the chattel provides. This point is made clear in O’ Brien v
Missick, where Georges JA explains, that in many parts of the West Indies yearly
tenants build houses on plots of land, the purpose of such is for proper enjoyment
of the land. Even if there is minimal attachment which will make the house less
liable for stormy weather, there is no intention to benefit the landlord by adding
value to the land. The tenant subjectively did not intend to cause benefit to the

89 | P a g e
landlord, but objectively it must the intention must come from the method it was
annexed to the land which aims at making the attachment minimal.

Aircool Installation v BT plc - air-conditioning equipment which was bolted

to the walls of a building had a sufficient degree of physical annexation so was
deemed to be a FIXTURE.

O’Brien Loans v Missick- the case of O’ Brien Loans Limited v. Missick

(1977) 1 BLR 40, Georges J.A stated, that in the case that a yearly tenant erects a
wooden house to a column anchored in the ground, there would be no reason
why it would lose its characteristic as a chattel and become a fixture, however a
long term lease holder who erects such a structure would be reasonably held to
have done so for the purpose of improving the land.

D’eyncourt v Gregory- D'Eyncourt v Gregory (1866) LR 3 Eq 382

The court was required to determine if some tapestries, some ornamental

statues of lions in the hall, staircase and gardens, some vases resting in nitches
and stone garden seats were fixtures or chattels.

Held: The tapestries were fixtures as they were integral to the decoration
of the room where they attached as wallpaper or frescos. The statue of lions, the
garden seats and vases were also fixtures as they formed part of the overall
architectural design. Lord Romilly MR:

 "I think it does not depend on whether any cement is used for fixing these
articles, or whether they rest on their own weight, but upon this--whether they
are strictly and properly part of the architectural design for the hall and staircase

90 | P a g e
itself and put in there as such, as distinguished from mere ornaments to be
afterwards added."

Registration of Titles

The nature of the system of registration of titles in Jamaica was succinctly explained by Lord
Millett, delivering the judgment of the Privy Council in Half Moon Bay Ltd v Crown Eagle Hotels Ltd:
The Registration of Titles Act, 1889 introduced a Torrens system of land registration to Jamaica. The
general features of such a system are very familiar. Title to land and incumbrances affecting land are
entered or notified in the Register Book, and everyone who acquires title bonafide and in good faith
from a registered proprietor obtains an indefeasible title to the land, subject to the incumbrances
entered or notified in the Register Book but free from incumbrances not so entered or notified, whether
he has notice of them or not. The Register Book consists of the original certificates of title, each of which
forms a separate folium of the book. The registered proprietor is given a duplicate of the certificate
bearing the number of the volume and folium of the Register Book in which the original is entered (RTA,
s 55). An instrument purporting to affect land is taken to be registered when it is produced for
registration, provided that it is subsequently entered both on the relevant folium and on the duplicate
(RTA, s 58). There are further provisions to ensure that every entry on the original certificate is matched
at all times by a like entry on the duplicate…

THE REGISTRATION PROCESS

Bringing land under the Act

Sections 24 and 25 provide that land may be brought under the operation of the Registration of
Titles Act by the Registrar registering the title of some person as the proprietor in the manner
prescribed by the Act. Such title may be either absolute or qualified.

Role of the Referee of Titles

91 | P a g e
 Section 31 provides that the Registrar must submit the application, together with the deeds,
documents or other evidence to a Referee for his consideration as to whether the applicant is a person
entitled to make an application under the Act, and is ‘in possession by himself or a tenant of the land
described or identified in the application and that he would be entitled to maintain and defend such
possession against any other person claiming the same or any part thereof’. If the Referee conclude,
that these requirements have been satisfied, he must provisionally approve the registration of the title
of the applicant or his nominee, with absolute title. Thus, for example, in Lynch v Ennevor, the Referee
directed that the land in question be registered provisionally and that a certificate of title be issued in
the name of the applicant’s nominee. He further directed that notice of the provisional approval be
given by advertisement to be published once in the Jamaica Gazette and once a week for three weeks in
the Gleaner newspaper, and by service upon the owners and persons in possession, occupation or
charge of all adjoining lands. The certificate of title was to be issuable at or after the expiration of seven
weeks from the appearance of the first of the advertisements unless, in the meantime, a caveat were
duly lodged. In Re Dunbar, the Referee ruled that it was not permissible to transfer various portions of
land to various transferees pursuant to a single application under the Act; rather, each transaction
required a separate and distinct application. The Referee’s ruling was affirmed by the Supreme Court,
per Bingham J, who characterised the application in this case as an ingenious device to circumvent the
provisions of s 174, whereby each application for registration is subject to a one-third ad valorem duty
on the consideration price before the applicant or his nominee can be registered as proprietor.

Possession of and dealing with documents evidencing title

Section 42 provides that, upon registering a certificate of title, the Registrar shall retain in his
custody all deeds, instruments and documents evidencing the title of the person registered, and no
person shall be entitled to inspect those documents except upon the written order of the persons who
originally deposited them, or of some person claiming through the latter, or upon the order of a judge.
In Wheatle v Donalds , 10 the Jamaican Court of Appeal, per Patterson JA, held that the court’s
power under s 42 to order inspection of documents lodged with the Registrar of Titles ‘should not be
exercised unless good cause is shown to lift the veil of confidentiality reposed in the Registrar’, and the
court would not order inspection where, as in the present case, the ‘application for inspection may
properly be described as a trip on a fishing expedition with the hope of catching a defence’.

CAVEAT AGAINST FIRST REGISTRATION

92 | P a g e
 Sections 43–45 of the Act are concerned with caveats against bringing land under the Act – that
is, caveats against first registration – whereas ss 139–143 are concerned with caveats against dealings
with land already registered. Under s 43, any person claiming any estate or interest in the land
described in the advertisement may in person or by agent, within the time appointed by the Referee
under s 33, lodge a caveat with the Registrar, in the form in the Second Schedule, forbidding the
bringing of such land under the Act. The caveat must be signed by the caveator or his agent and must
particularise the estate or interest claimed. The Registrar may also require the caveator to make a
statutory declaration stating the nature of the title under which the claim is made and to deliver an
abstract of his title to such estate or interest. Section 44 provides that the Registrar, on receipt of the
caveat, must notify the applicant for registration and must suspend proceedings in the matter until such
caveat has been with- drawn or has lapsed, or until an order in the matter has been obtained from the
Supreme Court or a judge. Thereafter, the applicant may summon the caveator to attend before the
Supreme Court or a judge in chambers to show cause why the caveat should not be removed, and the
Court or judge may make such order as it or he thinks fi t. The main issue in Rodney v Rodney-Seale was
whether a caveat ought to be removed on the ground that the caveator did not have a sufficient interest
in the disputed land to support the caveat. The background to the case was that one HK died in 1958,
leaving a will in which she appointed her eldest son, PR, as sole executor and gave her land, comprising
107 acres, to her ten children in equal shares, directing that the distribution be ‘amicably handled, and
any proceeds from the said land be equally divided among the ten children’. PR subsequently allotted
portions of the land to himself, two sisters and a brother, but the remaining portions were never
allotted. PR died, having appointed his wife, MR, executrix of his will. Since the administration of HK’s
estate had not been completed before PR’s death, the effect in law was that MR became trustee of HK’s
land until such completion. MR applied to the Registrar of Titles to have the portion of land that PR had
allotted to himself registered under the Act. JR, one of the daughters of HK and a beneficiary under the
will, who had never been allotted any land, lodged a caveat against registration. JR contended that MR
was seeking to register in her name more land than to which she was entitled, while MR argued that JR
had not established an interest in the land sufficient to support the caveat. The Jamaican Court of
Appeal, upholding the trial judge’s decision, held that JR did have a sufficient caveatable interest, and
the caveat should not be removed until there had been a resolution of all of the issues of fact, law and
equity, so that the administration of the estate could proceed. Forte JA explained: 14-15 I n my view,
the evidence disclosed in the affidavits leaves it abundantly clear that the administration of Henrietta’s
estate has not been completed and, more importantly, the beneficiaries, some of whom have never

93 | P a g e
benefited from the estate, have never been in agreement with the purported allotment attempted by
Percival and in particular an allotment to himself of so many acres abut- ting the main road.
Consequently, I would conclude that to allow the registration to proceed in the face of such allegations
would, as the respondents contend, deprive the beneficiaries of their chance to place before a court all
the evidence in order to determine the manner in which the administration of the estate should now
proceed, given the death of Percival and the inactivity in its administration since then. In this regard, a
passage cited by [counsel] for the respondents, from the text Registration of Title to Land Throughout
the Empire , by JE Hogg, dealing with the Torrens system throughout the Commonwealth including
Jamaica, is of significant relevance. It reads: The necessity for protecting unregistered interests by
means of injunctions, and the close resemblance that the caveat bears to an injunction, justify the
general principle of giving an extended meaning to the ‘interest’ which will support a caveat. It must of
course be borne in mind that ‘interest’ includes a claim to an interest; the whole system of caveats is
founded on the principle that they exist for the protection of alleged as well as proved interests, and of
interests that have not yet become actual interests in the land. In my view, there is in the affidavits
overwhelming evidence that demonstrates ample reasons why the caveat should not be removed until
there is a resolution of all the issues of fact, law and equity in the appropriate jurisdiction. ‘If there is any
bona fi de question of law or equity to be decided as to the right of the caveator to the estate or interest
claimed under the caveat, such question should be disposed of in an action to be brought in which to
decide such question. Section 45 provides that a caveat will be deemed to have lapsed one month from
the date of its receipt by the Registrar, unless in the meantime the caveator has taken proceedings in a
court of competent jurisdiction to establish his title to the estate or interest specified in the caveat; nor
may a caveat be renewed by or on behalf of the same person in respect of the same estate or interest.

CAVEAT AGAINST DEALINGS

Under s 139, any beneficiary or other person claiming an estate or interest in registered land
may lodge a caveat with the Registrar in the form in the Thirteenth Schedule forbidding the registration
of any person as transferee or proprietor, or the registration of any instrument affecting such estate or
interest. By s 40, on receipt of such caveat, the Registrar must notify the transferee or proprietor, who
may summon the caveator to attend before the Supreme Court or judge in chambers to show cause why
the caveat should not be removed. By the same section, a caveat will be deemed to have lapsed after a
period of 14 days from the date of such notice being given to the caveator. Section 142 provides that so
long as a caveat against dealings remains in force, the Registrar must not enter in the Register any

94 | P a g e
change in the proprietorship or any transfer or instrument presented for registration subsequent to the
date on which the caveat was lodged, unless the caveator consents. It was emphasised by Lord
Wilberforce in Rose Hall Ltd v Reeves ,a Jamaican case that went before the Privy Council, that a caveat
against dealings has the effect of preventing any dealings with the land while it remains effective, and it
cannot be argued that a caveat is ‘void’ on the ground that the person who lodged it had no interest to
protect: ‘A caveat is simply a fact – it may be justified in law or not – and whether it is either, must be
decided through the procedure laid down in the Registration of Titles Act.’ 18 In Wakefield v Dostey ,
on the other hand, Anderson J accepted as correct the view that, to be caveatable, the interest claimed
by the caveator must be either a legal estate (or interest) or an interest in respect of which equity will
give specific relief against the land itself. Such relief may be by way of an order that the interest claimed
be satisfied out of the land itself, for example by an order for the sale of the land and the payment out
of the proceeds of an amount in respect of which the caveator has a mortgage or charge.

It has also been emphasised that, under a Torrens system, a person who seeks to preserve an
unregistered interest (such as, for example, an agreement for the sale of land) against a subsequent
inconsistent dealing must, at the very least, lodge a caveat to preserve and maintain it, otherwise that
interest will be extinguished and cannot be reasserted later against a later registered proprietor, or
against the holder of a later and inconsistent registered interest. This is a consequence of the principle
of indefeasibility of registered titles under Torrens systems.

INDEFEASIBILITY OF REGISTERED TITLE

Sections 68–71 of the Act are of central importance in so far as they provide for the
indefeasibility of the registered title. In the words of Carey P (Ag): That registration of title confers on
the proprietor indefeasibility of title, save for fraud, is the very basis of the Torrens system of
registration of land and is a matter of settled law. Accordingly, s 68 speaks of a certificate of title being
conclusive evidence of title and provides that it cannot be ‘impeached … on account of any informality
or irregularity in the application process or in the proceedings previous to the registration of the
certificate’. Section 70, speaks of preferential and prior rights being defeated in favour of the
registered proprietor , except in cases of fraud, and provides that the registered proprietor is bound by
those incumbrances that are notified on the Register, but takes ‘absolutely free from all other
incumbrances whatsoever, except the estate or interest of a proprietor claiming the same land under a
prior registered certificate of title , and except as regards any portion of land that may by wrong
description of parcels or boundaries be included in the certificate of title …’. Section 71 exempts a

95 | P a g e
person, except in the case of fraud, from tracing the root of title of any registered land with which he
proposes to deal. The section provides that: except in the case of fraud, no person contracting … or
proposing to take a transfer from the proprietor of any registered land, lease, mortgage or charge shall
be required … to enquire or ascertain the circumstances under … which such proprietor or any previous
proprietor was registered … or shall be affected by notice, actual or constructive, of any trust or
unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that
any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. The effect
of the sections has been considered in a number of cases before the Jamaican courts. A straightforward
example of the application of the indefeasibility principle is Wilcocks v Wilson, In this case, a mortgagee,
in the exercise of its power of sale over the mortgaged property, a dwelling house, sold the house to the
respondents and the transfer was registered. The appellant, the widow of the deceased guarantor of the
mortgage, continued to reside in the house with her six children. She resisted the respondents’ action
for possession of the house on the ground, inter alia, that fraud on the respondents’ part should be
inferred from the fact that the respondents knew that the appellant, through court action against the
mortgagee, was claiming a beneficial interest in the house. The Court of Appeal of Jamaica held that the
appellant’s contention was misconceived since the effect of s 71 of the Act was that, in the absence of
proof of fraud, the respondents’ registered title was indefeasible. As Carey P explained:I understood the
appellant to be saying that the [respondent] purchasers by reason of their knowledge of the dispute
[with the mortgagee] should have been put on enquiry. But, assuming without accepting that
conclusion, it is pertinent to ask what such an enquiry would reveal. It would disclose an action by the
appellant in which no allegation of fraud was being made against the mortgagee. It seems to me that,
unless the enquiry disclosed fraud, the respondents would be bonafide purchasers for value without
notice. That registration of title confers on the proprietor indefeasibility of title, save for fraud, is the
very basis of the Torrens system of registration of land … It is plain from the [wording of s 71] that even
knowledge of the existence of a trust or other unregistered interest is not fraud … If knowledge of a
claim to a trust or unregistered interest is not fraud, then an allegation that such a claim is being
asserted by a court action can have no more significance … It is right to point out that fraud in this Act
means actual fraud, ie dishonesty. 28 The claim to an interest in the house, which the appellant put
forward, was based on the fact that she had contributed substantial amounts to the purchase price of
the house. This claim was never established during the lifetime of her common law husband and thus
remains to be proved, if that is at all possible, at this stage. Howsoever that might be, it cannot affect
the interest of the title of the respondents. Another clear illustration of the indefeasibility of a

96 | P a g e
registered title is Wedderburn v Capital Assurance Building Society Ltd . Here, the building society
granted a mortgage to the sole registered proprietor of matrimonial property, without having
investigated whether the proprietor’s spouse had any interest in the property. The spouse had in fact fi
led a suit under the Married Women’s Property Act, claiming an equitable interest in the property
(under a resulting trust) by virtue of her contribution to the purchase. The essential question before the
Jamaican Court of Appeal was, in the words of Langrin JA: If the intended mortgagee, upon receiving an
application, fails to investigate whether the spouse of the intended mortgagor has an interest in the
matrimonial property or fails to obtain the con- sent of the spouse to the pledging of the intended
security (the matrimonial home), is the said mortgage voidable, and is the court entitled to declare the
said mortgage void? … The matter does not concern the validity of the registered title but touches and
concerns the validity of the mortgage held by the mortgagee which was obtained in circumstances
where the mortgagee knew or ought to have known (if there was due diligence) of the interest of the
proprietor of the unregistered interest in the property. Langrin JA held that the Registration of Titles Act
conferred on the registered proprietor indefeasibility of title. This was the fundamental basis of the
Torrens system of registration of land and was a matter of settled law. Section 71 of the Act provided
that no person contracting with a registered proprietor was affected by notice, actual or constructive, of
any trust or other unregistered interest, and knowledge of the existence of any such interest was not to
be imputed as fraud. He continued: [Section 71] provides adequate protection to parties dealing with
the registered proprietor. The law in relation to notice as it may affect purchasers or mortgagees of
unregistered land has no application to registered land. The system of registration of title is designed to
free the purchaser or mortgagee from the hazards of notice, real or constructive, which in the case of
unregistered land involved him in enquiries failing which he might be bound by equities. Even
knowledge that a claim is being asserted by court action, as shown by the appellant fi ling suit under the
Married Women’s Property Act against her husband, can have no legal consequence against the validity
of the mortgage, since her right would have to be postponed to the rights of the mortgagee … [As Lord
Buckmaster LC said] in Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd : ‘Litigation is the means by
which a disputed interest in land can be established. If knowledge of the interest itself does not affect a
registered proprietor, knowledge that steps are being taken to assert that interest can have no more
serious effect.’

Meaning of ‘fraud’

97 | P a g e
 It was established by the Privy Council in the leading case of Assets Co Ltd v Roihi , decided
under the Land Transfer Act of New Zealand, on provisions that are similar to those of the Jamaican Act,
that: by fraud in these Acts is meant actual fraud, ie, dishonesty of some sort, not what is called
constructive or equitable fraud … Further, it appears … that the fraud which must be proved in order to
invalidate the title of a registered purchaser for value … must be brought home to the person whose
registered title is impeached or his agent … The mere fact that he might have found out fraud if he had
been more vigilant and had made further inquiries which he omitted to make, does not of itself prove
fraud. But if it be shown that his suspicions were aroused, and that he abstained from making enquiries
for fear of learning the truth,the case is very different, and fraud may be properly ascribed to him … A
person who presents for registration a document which is forged or has been fraudulently or improperly
obtained is not guilty of fraud if he hon- estly believes it to be a genuine document which can be
properly acted upon. The principle in Assets Co was confirmed by the same court in Frazer v Walker ,
in which mortgagees lent money to a wife on the security of a registered property jointly owned by her
and her husband, and registered the mortgage. Unknown to the mortgagees, the husband’s signature
on the mortgage document had been forged by the wife. When the wife defaulted in repayment, the
mortgagees in the exercise of their power of sale sold the property by auction to an innocent purchaser
who had no knowledge of the forgery. The new registered proprietor sued the husband for possession
of the property. The husband counterclaimed on the basis of the forgery of his signature to the
mortgage document, arguing that his interest in the property was not affected, that the mortgage was a
nullity, and that the Registrar should cancel the consequential entries in the register. The counterclaim
was dismissed on the ground that it was in effect an action for recovery of possession. The New Zealand
courts and the Privy Council held that the husband’s counterclaim was in effect an action for recovery of
possession under s 63 of the New Zealand Land Transfer Act 1952 (similar to s 161 of the Jamaican Act),
and since it did not fall within any of the exceptional cases mentioned by the section, the action failed.
The purchaser at the auction sale had accordingly obtained an indefeasible title as registered proprietor.

IN PERSONAM LIABILITIES

Frazer v Walker also established the important principle that the indefeasibility sections of the
statutes ‘in no way deny the right of a plaintiff to bring against a registered proprietor a claim in
personam , founded in law or in equity, for such relief as a court acting in personam may grant’. Put in
another way: a registered proprietor who has incurred personal obligations cannot plead the
indefeasibility provisions of the land registration statute in order to escape the enforcement of those

98 | P a g e
obligations … The doctrine of indefeasibility is designed to protect a proprietor from defects in the title
of the transferor and earlier predecessors-in-title, not to free the proprietor from personal obligations
with which he has burdened himself. Thus, in Gardener v Lewis , Lord Browne-Wilkinson pointed out
that although under s 68 the land certificate was conclusive as to the legal interests in the land , that did
not mean that personal claims (for example, for breach of contract to sell, or to enforce trusts affecting
the registered land against the trustee) could not be enforced against the registered proprietor.

CANCELLATION OF CERTIFICATE OF TITLE

The Act contains two important sections dealing with cancellation of certificates of title. Section 153
provides that if it appears to the Registrar ‘that any certificate of title or instrument has been issued in
error, or contains any misdescription of land or of boundaries, or that any entry or endorsement has
been made in error on any certificate of title or instrument, or that any certificate, instrument, entry or
endorsement has been fraudulently or wrong- fully obtained’, he may require the person to whom the
document has been issued or by whom it has been retained to deliver it up for cancellation or
correction. Section 158(2)provides that: in any proceeding … in relation to land under the operation of
this Act, the court or a Judge may … make an order directing the Registrar– (a) to cancel the
certificate of title to the land and to issue a new certificate of title and the duplicate thereof in the name
of the person specified for the purpose in the order; or ( b) to amend or cancel any instrument,
memorandum or entry relating to the land in such manner as appears proper to the court or a Judge.
The nature and extent of the Registrar’s power under s 153 and its relationship with the indefeasibility
provisions of ss 68–71 and with s 80 (Registrar’s power to amend the register) were considered by the
Privy Council in Thomas v Johnson . 43 In this complex but interesting case, D (vendor) had entered
into a written agreement to sell land to the respondents. D purported to determine the contract before
the completion date, but the respondents elected to enforce the agreement and obtained an order for
specific performance from Langrin J, who designated the Registrar of the Supreme Court as authorised
to sign the transfer on behalf of the vendor. A transfer was duly executed by the Registrar of the
Supreme Court, but before the transfer was registered, a caveat was lodged in the name of the
appellants claiming an interest in the land as donees from D. As Gault J, delivering the judgment of the
Privy Council, pointed out, the lodging of the caveat should have had the effect of preventing
registration of any dealings against the title; however, it appeared that the caveat was not in fact noted
on the Register, as the transfer in favour of the respondents was subsequently registered. The
appellants sought to have the certificate of title in the name of the respondents cancelled and a new

99 | P a g e
certificate issued in their own names as donees. In separate proceedings before the Court of Appeal, it
was held that the proceedings before Langrin J were a nullity because they had been wrongly
commenced by way of originating summons instead of the mandatory writ, with the result that ‘any
subsequent proceeding based upon the order for specific performance would be itself a nullity’. The
orders of Langrin J were accordingly set aside. But that was not the end of the matter, for the
respondents obtained a judgment in their favour from Pitter J – subsequently upheld by the Court of
Appeal – in which the learned judge held that even if the appellants’ caveat had been on the title, the
Registrar of Titles had correctly registered the transfer to the respondent, as it had been executed
pursuant to a court order then extant (the order of Langrin J). The caveat must be taken to have been, in
effect, discharged pursuant to the court order. Further, on the authority of Frazer v Walker ,the
respondents’ title, once registered, was indefeasible, even if it had been secured by a void instrument.
The saga continued. The present proceedings before the Privy Council had been brought by the
appellants, who argued that s 70 must be read with s 153, under which, as we have seen, the Registrar is
empowered to cancel or correct a certificate of title where it has been issued in error, wrongfully
obtained, or wrongfully retained. The appellants contended that the respondents’ certificate of title was
both issued in error (because it should have been prevented by the appellants’ caveat) and wrongfully
obtained (because the entire proceedings leading to the orders made by Langrin J were, as held by the
Court of Appeal, ‘bad and a nullity’). Gault J pointed out that the Jamaican Act differed from the New
Zealand Land Transfer Act in that, under the Jamaican Act, the Registrar’s power under s 80 to amend
the Register was limited in scope. Under that section, the power is confined to amendments as to: (a)
the description of the land; (b) entries that no longer affect the land or the title; (c) the names of roads
and the number on a road by which the land is designated; and (d) the name, address or occupation of
any person that has been incorrectly entered. In the view of Gault J, the amendment power ‘does not
seem to extend to the cancellation of an entry as to proprietorship’. This view was reinforced by the
positioning of s 153 in a separate part of the Act under the heading ‘Practice and Procedure’. It was
‘unlikely that the legislature would have intended by such a section – directed to the procedure for
requisitioning outstanding instruments and certificates – to confer power on the Registrar to determine
proprietorship of land and interests therein, when the Registrar’s powers to amend the primary record,
the register, are so confined’. As to whether the registration of their proprietorship could be said to
have been ‘wrongfully obtained’ by the respondents, the meaning of ‘wrongfully’ in the corresponding
section of the New Zealand Act had been left open by the Privy Council in Frazer , but it had been
suggested in more recent cases that ‘wrongful conduct’ involved ‘acting other than honestly and in good

100 | P a g e
faith’ and, in the present case, ‘merely employing the wrong procedure without any intentional
objective of defeating the rights of others’ would not amount to wrongful conduct. The view expressed
by the Privy Council concerning the scope of s 153 was strongly supported by Panton JA (dissenting) in
American Jewellery Co Ltd v Commercial Corp Jamaica Ltd . He said: In my view … section 153 is
concerned with proceedings by the Registrar. As I see it, the section provides for action, first and
foremost, by the Registrar. There is no record of any application having been made by the appellant to
the Registrar. It would be a very dangerous precedent for this Court to allow an appellant, who has not
pleaded fraud, to use section 153, while alleging some vague misconduct, to shake the principle of the
indefeasibility of the registered title … The principle of the indefeasibility of the registered title is
sacrosanct. There should be no tinkering with it. The question of the scope and effect of s 153 was
again considered by the Privy Council in the recent case of Pottinger v Raffone .Here, an investment
company had been registered proprietor of 34 parcels of land, but the appellant claimed to have been in
undisturbed possession of the land for more than 12 years within s 3 of the Limitation of Actions Act. On
the basis of this adverse possession, he applied to the Registrar under s 85 of the Registration of Titles
Act to be registered as proprietor of the land in fee simple, the application being accompanied by
various documents including a declaration by himself setting out the circumstances on which he relied
to show that he had been in possession for the requisite 12-year period. The necessary advertisements
were duly published in the newspaper. The application was successful and the Registrar, under the
powers given to him by s 87 of the Registration of Titles Act, cancelled the certificates showing the
company as proprietor and issued new certificates in the name of the appellant. The respondent
thereupon claimed that the company had previously entered into an agreement to sell the land to her
and that the appellant had fraudulently deprived her of the title. She argued that the case fell within s
161(d) of the Act and sought cancellation of the appellant’s certificate of title. The Jamaican Court of
Appeal held that the respondent had not proved fraud within s 161(d), but that the court nevertheless
had the power to cancel the appellant’s certificate of title under s 153 on the ground that it had been
‘wrongfully’ obtained. Lord Rodger, delivering the judgment of the Privy Council, disagreed that s 153
could be employed in this way to cancel an existing certificate of title. In his view, s 153 was not
concerned with the fundamental matter of the validity of the title of the proprietor whose name
appeared on the register, but rather with providing the Registrar with essentially administrative powers
to deal with ‘significant, but less fundamental, problems relating to the certificates which evidence that
title’, such as cases of loss or destruction of a certificate, clerical errors, misdescription of boundaries, or
wrongful retention of a certificate by a third party. In principle, when s 153 refers to a certificate of title

101 | P a g e
being ‘fraudulently or wrongfully obtained’, ‘it is refer- ring quite specifically to the certificate rather
than the title’. As Lord Oliver had emphasised in Honiball v Alele , ‘registration confers an “unassailable
title” on the proprietor shown in the certificate of title, save in the specific cases enumerated in section
161. Paragraph (d) speaks of a person being deprived of land by fraud and of a person being registered
as proprietor through fraud-and nothing else’, and ‘the same policy of confining the attack on title to
cases of fraud is reflected in sections 70 and 71’. Thus, in the absence of any proof of fraud on the part
of the appellant, the respondent’s claim failed.

102 | P a g e