Suggested Answer to Exercise 9.3
Planning your answer
Issues
- What interest, if any, do Hannah and Joshua have in the house?
- Is this interest binding on Damien?
- Are there any other remedies available to Hannah and Joshua?
Tutors’ Tip
As with all problem questions it is important to work through this exercise systematically. Consider all the possible interests that the parties may have. This means that you need to explain why certain interests have not been created as well as why others have. And don’t forget to explain the consequences for the parties (including what remedies are available to them).
Rules
1) Possible types of interest:
a) Lease (see Chapter 8);
b) Common intention constructive trust (see Section 17.3);
c) Estoppel (see Chapter 18);
d) Adverse possession of part of the house (see Chapter 16)
(not a major aspect of this question, but worth considering, if only to exclude it).
If none of the above can be established, Hannah and Joshua almost certainly have a contractual licence (see Chapter 9)
2) Is the interest binding on a purchaser?
a) Is it an ‘interest in land’?
b) Is it capable of overriding the Register of Title (Schedule 1 and Schedule 3 of the LRA 2002; see Land Law, Section 4.6).
3) Other remedies available to Hannah and Joshua.
Answer Plan
1) Introduce the issues, the key concepts and why they are important.
2) What is the nature of the arrangement between the parties?
a) Lease or purely contractual agreement?
i) Ingredients of a lease.
ii) The position after Ashburn Anstalt v Arnold?
iii) Capable of overriding?
b) Constructive trust
i) Agreement about acquiring an interest in the property?
ii) Detrimental reliance?
iii) Capable of overriding?
c) Estoppel
i) Arisen?
ii) What remedy is required to satisfy the estoppel?
iii) Capable of overriding?
d) Adverse possession
i) actual occupation;
ii) with intention to possess;
iii) without the consent of the paper-owner;
iv) for the requisite period.
3) Make sure that you have stated your conclusions (with your reasons).
Tutors’ Tip
Make sure that you set out your conclusion in enough detail. In other words, make sure that you have answered the all the questions the parties want the answer to. In the question, the parties have not asked whether they have a licence; they want advice as to their rights.
Consequently, as well as setting out your conclusions about whether there is or is not a licence (or any other type of interest), you also need to explain the consequences of this outcome for the different parties.
Before you go to the next page, prepare a more detailed answer plan, including references to relevant cases and statutes.
