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Defamation Lecture Notes

Defamation is a complex and detailed tort. Below I will present only an outline of the law, which will be further explained in class. Therefore, essential reading is as follows: Winfield and Jolowicz on Tort, Fifteenth Edition, 1998, ch 12, p390-461; or Michael A. Jones, Textbook on Torts, Seventh Edition, 2000, ch 13, p495-534.

DEFINITION
A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.

WHAT HAS TO BE PROVED


Subject to the differences between the two types of defamation, libel and slander (explained below), the claimant must prove: (1) that the statement was defamatory, (2) that it referred to him, and (3) that it was published, ie communicated, to a third party. The onus will then shift to the defendant to prove any of the following three defences: (1) truth (or justification), (2) fair comment on a matter of public interest, or (3) that it was made on a privileged occasion. In addition, some writers put forward the following as defences in their own right: (4) unintentional defamation, and (5) consent.

DISTINCTION BETWEEN LIBEL AND SLANDER


The basic differences between the torts of libel and slander are as follows: (1) Libel is a defamatory statement in permanent form, for example, writing, wax images (Monson v Tussaud's Ltd [1894] 1 QB 671), films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581), radio and television broadcasts (s16 Defamation Act 1952; ss166 and 201 Broadcasting Act 1990), and public performances of plays (s4 Theatres Act 1968). Slander is a defamatory statement in a transient form. (2) Libel is actionable per se whereas damage must be proved for slander, except in four instances: Where there is an allegation that the claimant has committed an imprisonable offence; Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS; Where there is an imputation that a woman has committed adultery or otherwise behaved in an 'unchaste' fashion (Slander of Women Act 1891); or Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling. (3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

FUNCTION OF JUDGE AND JURY


All actions for defamation must be commenced in the High Court, and it is one of the few civil actions that are still tried with juries. The Civil Procedure Rules have not removed this right: Safeway plc v Tate [2001] The Times LR 25 January It is the function of the judge to decide if the words were capable of being defamatory in the eyes of a reasonable person: (a) If the judge rules that no reasonable person would actually conclude that the words in question were defamatory, the case will fail at that point; (b) If the judge rules that the words are capable of being defamatory in the eyes of a reasonable person, the words will

be put to the jury and the judge will ask them to decide whether the words were defamatory (Capital and Counties Bank v Henty (1882) 7 App Cas 741 and Lewis v Daily Telegraph [1964] AC 234). A recent case on this issue is: Alexander v Arts Council of Wales [2001] The Times LR 9 April Note that by s7 of the Defamation Act 1996, the court shall not be asked to rule whether a statement is arguably capable, as opposed to capable, of bearing a particular meaning or meanings attributed to it. Juries also decide the amount of damages to be awarded to the claimant. It is well established that jury awards for defamation are excessive, especially when compared to judicial awards for personal injuries. The Court of Appeal now has the power to substitute an award of damages instead of ordering a new trial in cases where the damages awarded by a jury are excessive or inadequate (s8 Courts and Legal Services Act 1990). Cases to look up on the award of damages include: Clark v CC of Cleveland Constabulary [1999] The Times LR 13 May.

ESSENTIALS OF DEFAMATION (1) WORDS MUST BE DEFAMATORY


The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.
Mere abuse

Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no action lies" (Thorley v Kerry (1812) 4 Taunt 355 at 365, and also Pollock CB and Wilde B in Parkins v Scott (1862) 1 H&C 153 at 158, 159). Winfield & Jolowicz (p406) states that spoken words which are prima facie defamatory are not actionable if it is clear that they were uttered merely as general vituperation and were so understood by those who heard them. Further, the same applies to words spoken in jest (Donoghue v Hayes (1831) Hayes R 265).

Innuendo

Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning. Such a statement may be actionable. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph [1964] AC 234) and must be specifically pleaded by the claimant.

(2) REFERENCE TO THE CLAIMANT


The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.
Defamation of a class

If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual" (per Willes J in Eastwood v Holmes (1858) 1 F&F 347 at 349). If the defendant made a reference to a limited group of people, eg the tenants of a particular building, all will generally be able to sue (Browne v DC Thomson (1912) SC 359. This issue was considered by the House of Lords in Knupffer v London Express Newspaper Ltd [1944] AC 116.
Unintentional defamation

At common law it was irrelevant that the defendant did not intend to refer to the claimant. Section 4 of the Defamation Act 1952 provided a special statutory defence in cases of 'unintentional defamation', by allowing the defamer to make an 'offer of amends' by way of a suitable correction and apology and may include an agreement to pay compensation and costs. The defence is now contained in ss2-4 of the Defamation Act 1996, which was an attempt to modernise the law. The person accepting the offer may not bring or continue defamation proceedings. If the offer to make amends fails, the fact that the offer was made is a defence and may also be relied on in mitigation of damages. A publication made 'malicously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of unintentional defamation.

(3) PUBLICATION

The statement must be published, ie communicated, to a person other than the claimant. For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryanston Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege.
Communication between husband and wife

A statement made to one's own spouse will not be 'published' for the purposes of defamation (Wennhak v Morgan (1888) 20 QBD 635 at 639). Communication between husband and wife is protected as any other rule "might lead to disastrous results to social life".
Distributors

The defence sometimes known as 'innocent dissemination' is designed to protect booksellers and distributors of materials which may contain libellous statements. The law is now contained in s1 of the Defamation Act 1996. A person has a defence if he shows that he was not the author, editor or commercial publisher of the statement; he took reasonable care in relation to its publication; and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement (s1(1)). A person shall not be considered the author, editor or publisher of a statement if he is only the printer, producer, distributor, or seller of printed material containing the statement, or the broadcaster of a live programme (s1(3)). An internet service provider was held not to be the publisher, within the meaning of s1, of defamatory statements posted on a newsgroup, and therefore was entitled to rely on s1(1)(a). However, on the facts the claimant had notified the defendants that the posting was defamatory and requested that they remove it, but they had refused to do so.

Consent

Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant meant for the claimant only, will create a situation in which technically there has been no publication (Hinderer v Cole (1977) (unreported) - defamatory letter sent by the defendant to the claimant was shown by the claimant himself to third parties). For further information look up Chapman v Lord Ellesmere [1932] 2 KB 431; Tadd v Eastwood [1985] ICR 132.

DEFENCES (1) TRUTH (OR JUSTIFICATION)


Only false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false. If a number of imputations are made by the defendant but only one action is brought by the claimant in respect of them, then, by virtue of s5 of the Defamation Act 1952, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant's reputation, having regard to the truth of the remaining charges. The Rehabilitation of Offenders Act 1974 provides that certain criminal convictions, depending upon their seriousness, are to become 'spent' after certain periods of time have elapsed, and treated as if they had never happened. Section 8 provides that in defamation actions which are based on allegations that the claimant has committed offences which would otherwise be 'spent', justification can be used as a defence except where the publication was made with malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or false).

(2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST


The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson (1887) 20 QBD 275, stated that the test was: "Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised?" The defence only applies to comments made on matters of public interest, eg comments on works of literature, music, art, plays, radio and television; and also the activities of public figures. A publication made 'malicously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of fair comment.

Where there are imputations partly based on fact and partly expressions of opinion, the defence of fair comment will not fail merely because the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved (s6 of the Defamation Act 1952).

(3) PRIVILEGE
(a) Absolute

There are certain occasions on which the law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. The following communications are 'absolutely privileged' and protected from defamation proceedings: Statements made in either House of Parliament. However, by s13 of the Defamation Act 1996, this privilege can be waived. Parliamentary papers of an official nature, ie, papers, reports and proceedings which Parliament orders to be published (s1 of the Parliamentary Papers Act 1840). Extracts from parliamentary papers are covered by qualified privilege (s3). Statements made in the course of judicial proceedings or quasi-judicial proceedings. Fair, accurate and contemporaneous reports of public judicial proceedings before any court in the UK (s3 of the Law of Libel Amendment Act 1888). The same privilege was extended to radio and television broadcasts of judicial proceedings in similar circumstances by s9(2) of the Defamation Act 1952. Communications between lawyers and their clients. Statements made by officers of state to one another in the course of their official duty (Chatterton v Secretary of State for India [1895] 2 QB 189).
(b) Qualified

Qualified privilege operates only to protect statements which are made without malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or false). The judge must decide whether the situation is covered by qualified privilege. If so the jury must then decide whether the defendant acted in good faith or whether there was malice. The following communications will be protected by 'qualified privilege': Statements made in pursuance of a legal, moral or social duty, but only if the party making the statement had an interest in communicating it and the recipient had an interest in receiving it.

Statements made in protection of an interest, eg public interests or the defendant's own interests in property, business or reputation. Fair and accurate reports of parliamentary proceedings. Fair and accurate reports of public judicial proceedings in the UK, eg when the report is not published contemporaneously with the proceedings. Statements privileged by s15 of the Defamation Act 1996, which applies to statements made in newspapers and radio and television broadcasts. There are two categories: (i) Statements having qualified privileged without explanation or contradiction: see Part I of Schedule 1 to the Act. (ii) Statements having qualified privilege subject to explanation or contradiction: see Part II of Schedule 1 to the Act. This defence was recently tested in: Loutchansky v Times Newspapers (QBD, 27 April 2001).

CRITICISM OF DEFAMATION LAW


See separate details of the proposals for reform made by the Faulks Committee (Cmnd 5909) in 1975.

DEFAMATION ACT 1996


Among other things, the 1996 Act: Modernised the law on innocent dissemination (s1). Reformed the 'offer of amends' defence for newspapers where the libel was unintentional and the newspaper is willing to publish a suitable correction and apology, with damages assessed by a judge (ss2-4). Provides a new fast-track procedure for the summary disposal of defamation cases, with judges assessing damages of up to 10,000 in these cases and dismissing claims which have no realistic prospect of success (ss8-10). This will reduce the cost of litigation. Part 53 of the Civil Procedure Rules gave effect to this reform as of 28 February 2000. Reduced the limitation period for defamation and malicious falsehood to one year, with a discretion for the court to allow later action to proceed if reasonable. See the text of the Act provided in class.

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Defamation A tort consisting of the publication of a false and derogatory statement respecting another person who is alive and without lawful justification. A defamatory statement is one exposing him to hatred, ridicule or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, profession or trade. It may constitute libel or slander. It must be construed in its natural add ordinary meaning; if not defamatory in such meaning, it must be construed in the special meaning, if any, in which it was understood by the person by and to whom it was published. It is for the judge to say whether the words are reasonably capable of a defamatory meaning, but for the jury to say whether under the circumstances of the case they in fact bear that meaning. No action can be maintained for libel or slander unless there is publication, that is a communication by the defendant of the defamatory statement to some person other than the claimant. The Defamation Act 1952 made significant changes to defences to defamation, for example justification and fair comment. Damages for defamation are capped at 200,000.

Elements of Libel and Slander


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Defamation laws protect the reputations of individuals and other entities (such as businesses) from untrue and damaging statements. Libel refers to statements that can be seen (typically written and published), while slander occurs when a defamatory statement is spoken or otherwise audible (such as a radio broadcast). To prove either type of defamation, plaintiffs must prove the following four elements: 1. First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff. 2. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.

3. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication. 4. Fourth, in some cases, the plaintiff must prove special damages.

Defamatory Statements
One essential element in any defamation action is that the defendant published something defamatory about the plaintiff. A communication may be considered defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him," according to the American Restatement of Torts (or "The Restatement"). Examples of defamatory statements are virtually limitless and may include any of the following:

A communication that suggests the plaintiff was involved in a serious crime involving moral turpitude or a felony A communication that exposes a plaintiff to ridicule A communication that reflects negatively on the plaintiff's character, morality, or integrity A communication that impairs the plaintiff's financial well-being A communication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff

Courts have long struggled with the task of determining a standard for deciding whether a statement is defamatory. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. But generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question. Courts have struggled to some degree with the treatment of statements of opinions. In common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be considered libel or slander.

Publication Requirement
Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. "Publication" certainly includes traditional forms, such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio clip on the Internet may be considered a publication in this context. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.

Meaning of a Communication
In some instances, the context of a statement may determine whether the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is that

which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." Courts generally will take into account associated facts and circumstances in determining the meaning of the statement. So even where two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.

Reference to the Plaintiff


In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional. In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when: (1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication. - See more at: http://injury.findlaw.com/torts-and-personal-injuries/elements-of-libel-andslander.html#sthash.vrDDzyYu.dpuf

Formation of a contract
Introduction to Formation of a Contract
A contract may be defined as an agreement between two or more parties that is intended to be legally binding. The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer which the other, the offeree, accepts.

OFFER
An offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.

A genuine offer is different from what is known as an "invitation to treat", ie where a party is merely inviting offers, which he is then free to accept or reject. The following are examples of invitations to treat:

1. AUCTIONS
In an auction, the auctioneer's call for bids is an invitation to treat, a request for offers. The bids made by persons at the auction are offers, which the auctioneer can accept or reject as he chooses. Similarly, the bidder may retract his bid before it is accepted. See:

Payne v Cave (1789) 3 Term Rep 148

2. DISPLAY OF GOODS
The display of goods with a price ticket attached in a shop window or on a supermarket shelf is not an offer to sell but an invitation for customers to make an offer to buy.

3. ADVERTISEMENTS
Advertisements of goods for sale are normally interpreted as invitations to treat. However, advertisements may be construed as offers if they are unilateral, ie, open to all the world to accept (eg, offers for rewards).

4. MERE STATEMENTS OF PRICE


A statement of the minimum price at which a party may be willing to sell will not amount to an offer. See:

Harvey v Facey [1893] AC 552

5. TENDERS
Where goods are advertised for sale by tender, the statement is not an offer, but an invitation to treat; that is, it is a request by the owner of the goods for offers to purchase them./p>

ACCEPTANCE
An acceptance is a final and unqualified acceptance of the terms of an offer. To make a binding contract the acceptance must exactly match the offer. The offeree must accept all the terms of the offer. However, in certain cases it is possible to have a binding contract without a matching offer and acceptance. See:

Brogden v Metropolitan Railway Co. (1877) 2 App Cas 666

Lord Denning in Gibson v Manchester City Council [1979] above Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25.

The following rules have been developed by the courts with regard to acceptance:

1. COUNTER OFFERS
If in his reply to an offer, the offeree introduces a new term or varies the terms of the offer, then that reply cannot amount to an acceptance. Instead, the reply is treated as a "counter offer", which the original offeror is free to accept or reject. A counter-offer also amounts to a rejection of the original offer which cannot then be subsequently accepted. See:

Hyde v Wrench (1840) 3 Beav 334.

A counter-offer should be distinguished from a mere request for information. See:

Stevenson v McLean (1880) 5 QBD 346.

If A makes an offer on his standard document and B accepts on on a document containing his conflicting standard terms, a contract will be made on B's terms if A acts upon B's communication, eg by delivering goods. This situation is known as the "battle of the forms".

2. CONDITIONAL ACCEPTANCE
If the offeree puts a condition in the acceptance, then it will not be binding.

3. TENDERS
A tender is an offer, the acceptance of which leads to the formation of a contract. However, difficulties arise where tenders are invited for the periodical supply of goods:

(a) Where X advertises for offers to supply a specified quantity of goods, to be supplied during a specified time, and Y offers to supply, acceptance of Y's tender creates a contract, under which Y is bound to supply the goods and the buyer X is bound to accept them and pay for them. (b) Where X advertises for offers to supply goods up to a stated maximum, during a certain period, the goods to be supplied as and when demanded, acceptance by X of a tender received from Y does not create a contract. Instead, X's acceptance converts Y's tender into a standing offer to supply the goods up to the stated maximum at the stated price as and when requested to do so by X. The standing offer is accepted each time X places an order, so that there are a series of separate contracts for the supply of goods. See: Great Northern Railway Co. v Witham (1873) LR 9 CP 16.

4. COMMUNICATION OF ACCEPTANCE

The general rule is that an acceptance must be communicated to the offeror. Until and unless the acceptance is so communicated, no contract comes into existence: The acceptance must be communicated by the offeree or someone authorised by the offeree. If someone accepts on behalf of the offeree, without authorisation, this will not be a valid acceptance:

Powell v Lee (1908) 99 LT 284.

The offeror cannot impose a contract on the offeree against his wishes by deeming that his silence should amount to an acceptance:

Felthouse v Bindley (1862) 11 CBNS 869.

Where an instantaneous method of communication is used, eg telex, it will take effect when and where it is received. See:

Entores v Miles Far East Corp [1955] 2 QB 327 The Brimnes [1975] QB 929 Brinkibon v Stahag Stahl [1983] 2 AC 34.

5. EXCEPTIONS TO THE COMMUNICATION RULE

a) In unilateral contracts the normal rule for communication of acceptance to the offeror does not apply. Carrying out the stipulated task is enough to constitute acceptance of the offer. b) The offeror may expressly or impliedly waive the need for communication of acceptance by the offeree, eg, where goods are dispatched in response to an offer to buy. c) The Postal Rule - Where acceptance by post has been requested or where it is an appropriate and reasonable means of communication between the parties, then acceptance is complete as soon as the letter of acceptance is posted, even if the letter is delayed, destroyed or lost in the post so that it never reaches the offeror. See: Adams v Lindsell (1818) 1 B & Ald 681. Household Fire Insurance Co. v Grant (1879) 4 Ex D 216.

The postal rule applies to communications of acceptance by cable, including telegram, but not to instantaneous modes such as telephone, telex and fax. The postal rule will not apply:

(i) Where the letter of acceptance has not been properly posted, as in Re London and Northern Bank (1900), where the letter of acceptance was handed to a postman only authorised to deliver mail and not to collect it. (ii) Where the letter is not properly addressed. There is no authority on this point.

(iii) Where the express terms of the offer exclude the postal rule, ie if the offer specifies that the acceptance must reach the offeror. In Holwell Securities v Hughes (1974, below), the postal rule was held not to apply where the offer was to be accepted by "notice in writing". Actual communication was required. (iv) It was said in Holwell Securities that the rule would not be applied where it would produce a "manifest inconvenience or absurdity".

Revocation of posted acceptance. Can an offeree withdraw his acceptance, after it has been posted, by a later communication, which reaches the offeror before the acceptance? There is no clear authority in English law. The Scottish case of Dunmore v Alexander (1830) appears to permit such a revocation but it is an unclear decision. A strict application of the postal rule would not permit such withdrawal. This view is supported by decisions in: New Zealand in Wenkheim v Arndt (1873) and South Africa in A-Z Bazaars v Ministry of Agriculture (1974). However, such an approach is regarded as inflexible.

6. METHOD OF ACCEPTANCE
The offer may specify that acceptance must reach the offeror in which case actual communication will be required. If a method is prescribed without it being made clear that no other method will suffice then it seems that an equally advantageous method would suffice. See:

Tinn v Hoffman (1873) 29 LT 271 Yates Building Co. v Pulleyn Ltd (1975) 119 SJ 370.

7. KNOWLEDGE OF THE OFFER


An offeree may perform the act that constitutes acceptance of an offer, with knowledge of that offer, but for a motive other than accepting the offer. The question that then arises is whether his act amounts to a valid acceptance. The position seems to be that:

(a) An acceptance which is wholly motivated by factors other than the existence of the offer has no effect. R v Clarke (1927) 40 CLR 227 (b) Where, however, the existence of the offer plays some part, however small, in inducing a person to do the required act, there is a valid acceptance of the offer. See: Williams v Carwardine (1833) 5 Car & P 566.

8. CROSS-OFFERS

A writes to B offering to sell certain property at a stated price. B writes to A offering to buy the same property at the same price. The letters cross in the post. Is there (a) an offer and acceptance, (b) a contract? This problem was discussed, obiter, by the Court in Tinn v Hoffman (1873) 29 LT 271. Five judges said that cross-offers do not make a binding contract. One judge said they do.

TERMINATION OF THE OFFER 1. ACCEPTANCE


Once an offer has been accepted, a binding contract is made and the offer ends.

2. REJECTION
If the offeree rejects the offer that is the end of it.

3. REVOCATION
The offer may be revoked by the offeror at any time until it is accepted. However, the revocation of the offer must be communicated to the offeree(s). Unless and until the revocation is so communicated, it is ineffective. See:

Byrne v Van Tienhoven (1880) 5 CPD 344.

The revocation need not be communicated by the offeror personally, it is sufficient if it is done through a reliable third party. See:

Dickinson v Dodds (1876) 2 ChD 463.

Where an offer is made to the whole world, it appears that it may be revoked by taking reasonable steps. See:

Shuey v United States [1875] 92 US 73.

Once the offeree has commenced performance of a unilateral offer, the offeror may not revoke the offer. See:

4. COUNTER OFFER
See above for Hyde v Wrench (1840).

5. LAPSE OF TIME
Where an offer is stated to be open for a specific length of time, then the offer automatically terminates when that time limit expires. Where there is no express time limit, an offer is normally open only for a reasonable time. See:

Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109.

6. FAILURE OF A CONDITION
An offer may be made subject to conditions. Such a condition may be stated expressly by the offeror or implied by the courts from the circumstances. If the condition is not satisfied the offer is not capable of being accepted. See:

7. DEATH
The offeree cannot accept an offer after notice of the offeror's death. However, if the offeree does not know of the offeror's death, and there is no personal element involved, then he may accept the offer. See:

Bradbury v Morgan (1862) 1 H&C 249.

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A contract is a binding agreement between at least two parties. In order to form a contract, the essential elements are: Intention to create legal relations Offer and acceptance Consideration Capacity

Intention to create legal relations


The parties must clearly have intended their agreement to be legally binding. For example, a mere social arrangement such as an agreement with a friend to meet for a meal will not normally be treated as a contract. [Parker v. Clark (1960) 1 W.L.R. 286.]

Offer and Acceptance


An offer is a promise to do or not to do something in sufficiently clear terms that may be accepted by another. An offer should be distinguished from an invitation to treat and a mere expression of intention to do or not to do some act. Offers do not necessarily need to be made to one person that may be made to the world at large or to specific groups of people. The significance of an offer is that when it is accepted, the contract is formed. In addition to being accepted, an offer may be rejected, a counter-offer may be made, the offer may lapse or the offeror may withdraw the offer, such that it is no longer available to be accepted. The acceptance of the offerors terms must be unconditional. In many cases this may constitute a yes or no reply to an offer made. There are situations where such a simple exercise may not be possible and it requires the courts to give direction as to how acceptance may be established.

An offer may be accepted by conduct; silence, however, can never constitute acceptance.[Smith v Hughes 1871]

Consideration
Consideration is a promise, an act, or a promise not to act and represents the value in the contract. For example, in a services contract for services, one person will promise to perform services (the consideration of one party), and the other will promise to pay money in exchange for the service (the other party's consideration). Consideration in a contract may be executory, executed or past. Executory consideration is a promise that will be performed in the future, executed consideration is a promise that has been performed thus giving rise to the obligation on the offeror to perform their promise, and past consideration is where a promise is performed before the formation of the contract and as such cannot be used to bind the other party to the contract: importantly, past consideration is not sufficient to form a binding contract. Consideration must move from the promisee, as the English common law system does not enforce gratuities as the civil law system does. Also, consideration need not be adequate, but must be sufficient. That is to say that there is no requirement in law that the value of the consideration between the parties must be equal or near equal provided there has been no vitiating factors.[Beswick V Beswick (1968) AC 58, (1967) 2 All ER 1197, HL]

Capacity
As a general rule, everyone is capable of entering into contracts. There are, however, some exceptions. Most importantly, some artificially created bodies such as local authorities are only entitled to do the things for which they were created or which have been specially authorised. Anything else is ultra vires (outside of its powers) and therefore void. Another example of lack of capacity is that infants (those under 18) may not be bound by some of their contracts. (a) (i) Describe what is meant by the term Occupiers Liability. The law of occupiers liability is a common law tort meaning it is actioned in a civil court and deals with issues between individual parties. Under occupiers liability the person who occupies the land can be held liable when injury or some kind of harm has occurred to another person on that land.It is governed by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984.[Wheat v Lacon 1966 HL]

(ii) Discuss whether there is a distinction between visitors and trespassers under the law.

Visitor and trespassers The Occupiers' Liability Act 1957 regulates occupiers' liability to visitors. S 1(2) of the Act defines visitors as persons to whom the occupier gives (or is to be treated as giving) an invitation or permission to enter or use the premises. In other words, visitors are persons who have the express or implied permission of the occupier to be on the premises. A visitor who exceeds the occupier's permission, e.g. by going to the part of the premises where he was told by the occupier not to go, or by outstaying his leave, will become a trespasser and will fall outside the sphere of application of the Act. He will then be in the sphere of application of the Occupiers' Liability Act 1984, with lower standards of protection. "Visitors" for the purposes of the Act are also persons who enter premises for any purpose in the exercise of a right, whether they in fact have the occupier's permission or not. Police carrying out a lawful search or firefighters in the exercise of their duties will fall into this category. [Stone v Taffe 1974 CA], [Gould v McAuliffe 1941 CA] (b) Briefly describe the tort of trespass and give examples where a persons action has been ruled by the courts to constitute trespass. Trespass to land occurs where a person directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land. This tort is actionable per se without the need to prove damage. [Basely v Clarkson (1681) 3 Lev 37] (c) Define the tort of Private Nuisance and the tort of Public nuisance and describe the key differences between them Private nuisance: Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. Proof of damage is necessary. [Cambridge Water v Eastern Counties Leather-1994]. Public nuisance: Public nuisance is an act "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects": per Romer LJ in A-G v PYA Quarries [1957]. [Halsey v Esso Petroleum-1961] A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. A public nuisance interferes with the public as a class, not merely one person or a group of citizens. (d) Elements of the tort of negligence. How to establish that a duty of care is owed? Generally, to establish the tort of negligence, the following elements must be present: The defendant owed a duty of care to the claimant;

The defendant breached that duty (i.e. was careless or negligent thus was at fault); The breach of duty caused damage/injury; The damage/injury was not too remote; The defendant must not be able to raise a defence to the claimants civil action. To establish that a duty of care is owed, there must be: Foresee-ability of the damage; [Fardon v Harcourt-Rivington; 1932] A sufficiently 'proximate' relationship between the parties;[Caparo v Dickman;1990] It must be fair, just and reasonable to impose such a duty.[Kent v Griffith;2000] 3. (a) Describe the following terms: Freehold: If you purchase a freehold property, you will own the home, the land it is built on, and you will have the right to live there for as long as you please. You can make moderations to the property within restrictions of the law and planning restrictions. You may need permission to make structural changes, particularly with listed buildings (old buildings). Leasehold: If you buy a leasehold property you are actually buying the rights to live in a property for a set period of time. You wont actually own the property, or the grounds it is situated on. Most flats are leasehold; with the lease, it means you are obligated to pay ground rent to the freeholder. The ground rent will cover the costs for communal maintenance repairs. The lease should stipulate how the service charge is worked out, and how it is divided between the other leaseholders. Once the set period in the lease expires, the ownership of the property is given back to the land owner. Most leases are roughly 99 years; however, you can get an extension Commonhold: Like leasehold, this type of property is usually found with flats and units. Most strikingly, commonhold eradicates the concept of a lease and having a landlord. Thats what most appeals to buyers, and why it is favoured over leasehold. Commonhold is pretty selfexplanatory. A group of people mutually own, for example, a block of flats. There is no overall landlord. However, there is a freehold owner, and that is a company called a commonhold association. The owner of each flat is a member of the association (i.e if you buy a commonhold flat, you will be part of the association). The commonhold association is responsible for maintaining the communal areas of the building. Easements: These are the rights which are attached to the land of one person (the dominant land), and are exercised over the land of another person(servient land).[Hawkins v Rutter;1892] Restrictive covenants: These are another form of interest in land, and defined as restrictions upon the use of a persons land for the benefit of another persons adjoining/nearby land.[Tulk v moxay;1848]

(b) Stages involved in the formal purchase of a free hold property (formal acquisition of land). Vacant possession Agree a purchase price Seller draws up draft contract Buyer completes searches and checks mortgage offer Contracts exchanged and deposit paid by buyer Completion and moving date Pay stamp duty if applicable Send transfer deed to Land Registry (c) Roles and responsibilities of the land Registry; types of information it holds on Registered land; registers/documents which may be obtained from the land registry. The main purpose of the land registry is to register title to land in England and Wales and to record dealings (for example, sales and mortgages) with registered land.

Their principal aims are:


to maintain and develop a stable and effective land registration system throughout England and Wales as the cornerstone for the creation and free movement of interests in land; on behalf of the Crown, to guarantee title to registered estates and interests in land for the whole of England and Wales; to provide ready access to up-to-date and guaranteed land information so enabling confident dealings in property and security of title; to achieve progressively improving performance targets set by the Lord Chancellor, so that high quality services are delivered promptly and at lower cost to users. It holds information such as the title of the registered document; its title number, classes of title, overriding interests, guarantee and indemnity; the title plan, boundaries of registered land; how to discharge a registered charge.

Description of the registers/documents which may be obtained from the Land Registry
There are three parts of the register namely the property register, the proprietorship register and the charges register which can be obtained from the Land Registry. The property register contains a description of the land in the title. It also refers to a title plan, which is prepared for each title. It may also give details of any rights that benefit the land, such as a right of way over nearby land. In the case of a leasehold title, it gives brief details of the lease. The title plan is based on the large-scale maps of the Ordnance Survey. The proprietorship register gives the quality of the title, such as an absolute title, and the name and address of the legal owner, and shows whether there are any restrictions on their power to sell, mortgage or otherwise deal with the land. When we are completely satisfied about who owns the property we will give absolute title. In some cases, however, we will give a more limited class of title. The charges register contains details of registered mortgages and notice of other financial burdens secured on the property (but does not usually give details of the amounts of money involved). It also gives notice of other rights and interests that affect the property, such as leases, rights of way or covenants that limit how the property can be used.

REFERNCES:
Beatson, J. Ansons Law of Contract. (Oxford: Oxford University Press, 2002) twenty-eighth edition [ISBN 0199256039 (hbk); 0198765762 (pbk)]. Last accessed 6 April 2010. Poole, J. Casebook on Contract Law. (Oxford: Oxford University Press, 2006) eighth edition [ISBN 9780199290291]. Last accessed 6 April 2010. Essential features of a contract. Available: http://www.oup.com/uk/orc/bin/9780199579464/marson_ch02.pdf. Last accessed 6 April 2010. Elements of the law of contract (2008). Available: http://www.docstoc.com/docs/3013656/Elements-of-the-law-of-contract-Elements-of-the-law/. Last accessed 6 April 2010. Framework Document 2008. Available: http://www.landreg.gov.uk/info/noticeboard/item/?article_id=17673. Last accessed 8 April 2010. Private Nuisance. Available: http://www.a-level-law.com/tort/nuisance/lecture.htm. Last accessed 7 April 2010. Trespass to Land. Available: http://www.a-level-law.com/tort/trespass_to_land/notes.htm. Last accessed 7 April 2010.

What liability do I have towards other people entering my property. Available: http://www.inbrief.co.uk/occpiers-liability.htm. Last accessed 7 April 2010.

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Easements; a right to use or restrict the use of the land of another person in a particular matter, but not so as to allow the owner of the easement to take anything except water from the land over which easement is exercised. In Re Ellen borough park the characteristics of an easement were laid down, these were (1) there must be a dominant and servient tenement (2) an easement must accommodate the dominant tenement and it would do so if it made the dominant tenement a better and more convenient property(e.g.) if it increased the value of the property. Under the accommodation here must also be sufficient nexus between the enjoyment of the easement and

the dominant tenement in order words proximate. It must also be shown that the easement accommodates the land as opposed to the person as an easement is more than a mere personal right as in hill v tupper (3) the dominant and servient owners must be different persons(4) the right claimed must be capable of forming the subject matter of a grant. Easements can be acquired through; (1) express grant - this arises in three categories of case by the means of express words: this constitute the most common form of grant of easement and is usually made by the use of express words in the conveyance of the legal estate of the dominant tenement and provided it is granted for a period of time equivalent to a freehold or leasehold estate, and the conveyance itself complies with the formal requirement and this must be supported by an act of paart performance McManus v Cooke 1887. Estopel ; this method of acquisition covers a situation where no formal grant of an easement is made but an easement arises in consequences of the conduct of the parties as in crabb v arun distrct council. Implied easement; where an easement is not expressly granted or reserved it may still be acquired impliedly. There are three situations in which the law is prepared to imply an easement in favour of the grantee against the grantor; (a) necessity; it means that u have to show that without the easmenet your land canot be used at all as in MRA engineering v Trimster. (b) common intention ; this happens when it is the common intention of the parties at the time of the conveyance that an easement should be granted as in wrong v beaumount property trust ltd. (c) the rule in wheeldon v Burrows; his rule may apply to grant as easement in favour of a purchaser in two situations; (a) where there is a sale of part of the vendors land (b) where the vendor is disposing of all is/her property to two different purchasers.

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PART 1
The legal issue in the first part of the case scenario separates certain areas of the law regarding easements on whether certain rights can exist as easements and if the burden of an easement can affect a person who takes propriety possession of the burdened land. The legal issue also encompasses whether or not Gordon is burdened by Jamie's right to park his car regardless of the fact that this legal easement that was granted by Hugh was not registered. Another legal issue to be tackled is on whether the easement to display a sign advertising Delish and the daily menu on the wall of the Homestead exists and if so, how such an easement was created. The law on easements in accordance with relevant case law will be used in order to give adequate advice. Roger (2006) states that an easement is a right to obtain some degree of benefit from the land of another and these rights are either negative or positive. Easements must be annexed to the land which is close to one part of land and this is the dominant tenement. The question that arises in the first part of this case study is whether or not this easement is legal hence binding. According to Dixon (2009) easements can either be legal or equitable. The Law of Property Act 1925(LPA)(s 1(2)(a) states that a legal easement exists if held for a period equal to an estate in fee simple absolute possession or for a term of absolute years where as an easement for any other period is an equitable easement. Assuming that the agreement made by Hugh and Jamie is written and meets the requirements in the Law f Property (Miscellaneous Provisions) Act 1989, s.2, it is regarded as a valid contract to create a legal easement which can amount to an equitable easement. The case of McManus v Cooke and the principlegenerated in Walsh v Lonsdale illustrates this. It should also be noted as stated by Rogers (2006) that the rule in Wheeldon v Burrows can be valid on a contract to convey a legal estate and will eventually give rise to an equitable easement. Rogers (2006) further states that the LPA (1925) can only create an easement only upon a conveyance hence such an easement will be a legal one. The servient land has been purchased by Gordon hence the issue to be assessed is whether or not Jamie's' easement is legal and if it is binding on Gordon. If it is said to be binding, then Jamie can acquire an injunction to stop Gordon from interfering with his rights. The property was registered when the easement was created hence in order to determine whether or not the easement is binding on Gordon, the principles of registered land will be applied. An equitable easement arose after the Land Registration Act (LRA) 2002 was implemented and after that an easement could not be an overriding interest in its own right. After the act came into force, the

only easements that could be overriding interests in their own right were legal easements. Roger (2006) states that legal easements or profits allowed and permitted on or after 13 October 2003 out of a registered title are not regarded as overriding interests because under section 27 (2) (d) of the 2002 their creation amounts to a registrable position. Roger (2006) further states that they can only operate as legal interests after completion of registration. After applying the law to the facts of this case scenario, Jamie may not be viewed as having a legal easement but may be viewed as having an equitable easement to park his car in the car park on the rear end of the delish The defence Jamie may use in order for the easement to be regarded as legal is that he could argue that he had an overriding interest in accordance with schedule 3, para 2 of the LRA (2002) however this would be not easy to argue as his use of the car park could hardly amount to actual occupation and does not satisfy the requirements for legal interest or profit to be an overriding interest. If the property in question had been unregistered then Gordon would have been bound unless he proved that he had purchased the property in good faith and had been unaware of the existence of the easement. An argument Gordon may use to support his action to stop the easement from being upheld is that the spot where Jamie chooses to park his car is obstructing deliveries. In the case of London & Blenheim Estates Limited v. Ladbroke Retail Parks Ltd it was held that a right to park a car would not be granted if such rights would leave the servient owner devoid of any sensible use and enjoyment of his land, whether it is for parking purposes or for something else. The test was also used in the Batchelor v Marlowcase. The easement granted to Jamie by Hugh may therefore likely be classed as an equitable easement and it is only binding on Gordon If it is protected by entry of notice on the charges register. The second issue in this case study is on whether or not the display of the sign is an easement. The criteria used to identify easements was determined and approved in theRe Ellenborough case. According to Dixon (2009), four requirements have to be met and looking at the requirements in the Re Ellenborough case, it may be said that Gordon does not accommodate the dominant tenement and the sign he displays is merely being used to benefit him personally. The case of Moody v Steggles however argues this point, where it was established that affixing a sign on another person's property could mount to an easement. Looking at the case ofMoody v Steggles, it may be held that although Gordon's sign relates to his business it accommodates the dominant servient. Gordon may also argue that the sign was affixed when the original owner (Hugh) was still in possession of the property and the case of Pugh v Savagesupports this argument. The sale of the business was that of a quasi dominant tenement so there could be four possibilities in relation to him acquiring an easement and these could be easements of necessity, intended easements, the rule in Wheeldon v Burrows and the Law of Property Act 1925, section 62(Dixon 2009).After application of statutes and case law, Gordon may be allowed to uphold the easement hence can apply to for an injunction to stop Hugh from depriving him of his rights.

PART 2
The issue in the second part of the case study is on whether or not Ainsley is bound by the restrictive covenant which is for the homestead not to be used as a business that sells food or refreshments. The law being analysed and applied is that of Restrictive covenants and case law will be used for further elaboration as well as to give adequate advice.

According to Dixon (2009) restrictive covenants are promises made by one person to another allowing them or stopping them from doing something on their own land. Dixon (2009), states that a covenant is made between the covenantor and the covenantee where both the burden and the benefit are attached to the benefited and burdened land and pass to future purchasers. According to Rogers (2009), under registered land the protection of the burden of a restrictive covenant that runs with the land of the covenantor is done through placing a notice on the charges register of the title of the servient land. According to Dixon (2009)covenants formed after 1926 are regarded as invalid in relation to the purchaser who acquires the legal estate in the burdened land for value purposes unless they are registered at the Land Charges Registry and this must be done in the correct register which is (D(ii)). Dixon (2009) further states as long as the restrictive covenant is registered then the purchaser in regards to restrictive covenants of an equitable interest or a purchaser of the legal estate is bound by it even if it does not give any value or money's worth.

After analysis of the law of restrictive covenants under registered land, Ainsley could be bound by the covenant .Ainsley may however argue and would have to prove that she had purchased the property in good faith and had not been made aware of the restrictive covenants and this point is illustrated in the case of Wilkes v Spooner. In regards to this point the case of Austerberry v Corporation of Oldham shows how in common law, Ainsley does not have to endure the burden hence Gordon would have to sue the original owner. This principle however has been criticized and it was noted in Tulk v moxhay thatno intervention would occur in equity to prohibit a purchaser who aquired notice from refusing to acknowledge that there is a restrictive covenant however this did not include positive obligation. Section 24 of the Law of Property Act (LPA) 1969 provides that actual notice of a previous land charge determines whether or not a future purchaser will be bound by it so that section 198 of the Law of Property Act (LPA) 1925 which states that registration is a form of notice will not be applicable. If Ainsley enters into the contract without actual knowledge of the restrictive covenant the LPA 1969, s.25 may provide some form of compensation in regards to those purchasers disadvantaged by the charge.

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The law of prescriptive acquisition may be criticized, both as a matter of principle and on grounds of complexity. Is it really necessary to have three concurrent means of prescriptive acquisition? In the light of the above statement, critically assess the current operation of the law relating to the acquisition of easements by prescription. In this question I will attempt to review the current operation of the law in regards to prescriptive easement. Easements and profits may be acquired as a result of prolonged use, i.e. by prescription, in addition to express easements through deeds or implied grants. There are three co-existing methods of prescriptive acquisition for easements and profits; (i) common law prescription; (ii) the doctrine lost modern grant; and (iii) the Prescription Act 1832. For a person to be successful in his claim for prescriptive easement he must satisfy detailed rules set out in any of the three forms of prescription. There are rules which are common in all three forms of prescription.

The first is the user must be as of right; for this requirement to be fulfilled by the owner, the user must be nec vi (without force), nec clam (without secrecy), and nec precario (without consent). The first requirement of without force means that the user must not be contentious. The word force has a wide meaning and can include actual physical violence or damage to property. Force can even be a clear protest by the servient owner; the protest may take the form of physical, material or legal action. [1] The second condition is without secrecy. Prescriptive easements can be generated only if the use has been open that is to say, of such character that an ordinary owner of land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of the use. [2] Any secret performance prevents the servient owner from protesting and objecting the acquisition of the right. [3] Also, even if the act is not performed in secret, the servient owner must have knowledge of the act. [4] The third condition is without permission. One obvious case is where the servient owner receives an annual sum from the claimant; this shows a continuing element of permission. [5] If permission is asked or consent given then the servient owner would be acknowledging that no right exist and would go against prescription [6] . Providing the servient owner knows of the act and tolerates such act the user is as of right.

Another common rule to all three forms of prescription is that the user must be continuous. In the case of Hollins v Verney [7] , the Court rejected the claim for a prescriptive easement, based on the fact that the right had only been exercised on three occasions each separated by a period of 12 years. An additional requirement to be fulfilled is that the user must be by or on behalf of a fee simple owner against a fee simple owner. The requirements are also more specific. The user must be against a fee simple owner of the servient tenement and the dominant tenement user must be by or on behalf of a fee simple owner. If the user is on behalf, the claim for an easement will be for the fee simple owner, but the tenant may enjoy the benefit during his lease, as demonstrated in the case of Palk v Shinner [8] . Also a tenant cannot prescribe for an easement against his landlord or vice versa. Furthermore, the two parties either on behalf of or fee simple owner themselves must be against a different fee simple owner; therefore a tenant cannot acquire an easement against another tenant of the same landlord. [9]

This requirement and specific rule are complex and problematic. This rule is only in English common law and does not appear in other countries common law. i.e. Ireland The first method for prescriptive acquisition is prescription at common law. This method implies that a continuous user as of right for the past 20 years or more will raise a presumption of user since time immemorial i.e. 1189. It is not necessary to prove use stretching back to 1189, providing the last 20 years are verified. But the presumption can be rebutted by showing that since time immemorial the right could not or was not executed. The presumption can also be rebutted by showing that the servient and dominant tenements were in the ownership of the same person. For these reasons the common law prescription is rarely successful. It has been criticised for being limited and absurd in its application. [10] The second method of prescription is the doctrine of lost modern grant. The doctrine allows a user as of right who can provide evidence of 20 years in modern times i.e. after 1189, a prescription for easement. The support of this doctrine is based on fiction, it concedes that the user cannot prove user as of right back to 1189, but allows the prescription of a modern grant through evidence, and presumes that the deed has been lost. This is the advantage of lost modern grant over common law prescription, lost modern grant does not presume user since time of immemorial, only from modern times.

Cases such has Dalton v Angus [11] and Tehidy Minerals v Norman [12] have indorsed the doctrine and shown that proof of 20 years or more would raise presumption. Buckley I.J. concluded in the case of Tehidy; "In our judgement Angus & Co. v. Dalton decides that, where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to full the requirements of prescription, then ... the law will adopt a legal ction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. If this legal ction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgement it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing impossibility) should not be permitted to displace the ction." So it would appear while the presumption cannot be rebutted by proving that no grant has in fact been made. Thought the presumption of lost modern grant can be rebutted by showing throughout the period the grant existed there was no person legally competent to make a grant.

The final means of acquisition of easements is prescription under the Prescription Act 1832. The initial aim of the Act was to remove the complications and absurdity from the other two methods of prescription, unfortunately, the provisions were very badly drafted and created complications of its own. At present all three methods exist side by side. The Act covers situations which are not covered by the other two methods. For an easement to arise from the Act, the right must have been in continuous use for the last 20 years, this is the short period. After this time the easement is prescribed, but capable of challenge. After 40 years (long period), of user as of right for easements, the right becomes absolute, it can no longer be rebutted. The Act does not remove the standard requirements as mentioned before for the other two methods. The Prescription Act has certain requirements which stand alone from the other two methods. Section 4 of the Prescription Act 1832 states the relevant period in each case is that next before action. This requirement means that however long the period of user as of right, no absolute right is acquired until it is established in action [13] . The Act would be of no use and one of the other two methods would have to be used. Also another requirement is that the user must be without interruption. Interruption is classed as anything more than a year. In Court of Appeal, the case of Tehidy, Buckley LJ stated; The co-existence of three separate methods of prescribing is, in our view, anomalous and undesirable, for it results in much unnecessary complication and confusion. We hope that it may be possible for ...a long-overdue simplification in this branch of the law. The need for reform and update has been present for a long time, but no action has been taken. Common law prescription is out of date, bizarre and ineffective in application. Lost modern grant provides some sense of stability for prescription but is based on legal fiction; as a result the courts have held that it can only be relied upon if the other forms of prescription fail. The Prescription Act was introduced to bring vital structure and facilitate the prescription of easements, though it would seem it created more complexity and problems. It seems the single most important point is the elimination of the existing methods of prescription and replaced with a single statutory method and to set this as the starting point of the new reform. Choosing set ideas such as a qualifying period for prescription i.e. 20 years. Other changes need to follow in this, it would be recommended to keep as of right user; as well as the requirements of nec vi, nec clam and nec precario.

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Easements
An easement (e.g.) a right of way. Are rights one has over the land of another. Certain characteristics must be met for a right to be considered an easement. The case Ellenborough Park, Re [1956] ch 131 as laid out in Cheshire's Modern Real Property 7th Edition states: There Must Be A Dominant And A Servient Tenement: A tenement is any land held for a freehold or leasehold estate. It is a phrase commonly used in easement to refer to a piece of land. An easement cannot exist in gross i.e. without any estate in land to which the right is connected (Land Registry: 2010). There must be two pieces of land. The dominant tenement which benefits from the easement and the servient which is affected by it, the need for a dominant and servient tenement was recently backed up in the case of London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993]. This case showed that there was no easement, as the dominant tenement could not be determined.

The Right Must Accommodate The Dominant Tenement: -

The right must be connected with use and must improve the usefulness or amenity. An easement must benefit the dominant tenement, this stipulation involves a number of factors:

Benefit to land- The right must benefit the land and not the current occupier of the land. Usually if the right will increase the value of the land this will usually satisfy the condition of the easement. Proximity of dominant and servient tenements- The dominant tenement does not have to be adjoining the servient tenement as long as it can derive benefit. For example, an owner of a farm may allow a horse rider of a local property access across his land for a charge providing certain criteria is met, this could be an easement. Personal advantage not sufficient- If the right had been for personal advantage of the dominant owner then this condition is not satisfied, this is further backed up in the case of Hill v Tupper [1863].

Dominant And Servient Owners Must Be Different Persons: An easement is defined as a right one has over the land of another's. This statement is correct however therefore means you cannot have an easement over your own land. This would be defined as a quasi-easement for example if a farm owner leases a piece of his land and at a latter date finds he need to cross the land, he could approach the tenant and the tenant could grant him an easement to cross his land. As long as the dominant and servient tenements are not both owned and occupied by the same person then this criteria can be met.

A Right Over Land Cannot Amount To An Easement, Unless It Is Capable Of Forming The Subject Matter Of The Grant (The Right Must Lie In Grant'): This characteristic has a few factors: There must be a capable grantor and grantee: - The servient owner must be fully able to grant an easement. (Land Registry: 2010) for example, if the land has a mortgage on it this may limit the grantor's power to make the grant. The dominant owner must also have the power to accept the grant.

The matter granted must be sufficiently definite. (Riddell: 2003) this is backed up in the case of Chaffe v Kingsley [2000], the claim of right of way was denied as it was not specific enough. A right to a view or a right to privacy have been considered too indefinite. The right must be capable of existing as easements. A right to light is not defined to constitute an easement however a right to light through a specific window can be an easement, Colls v Home & Colonial Stores Ltd [1904]. A right to clean you windows whilst standing on a neighbouring property may also satisfy this requirement.

The Right Must Not Entail Expenditure By The Servient Owner: It is unlikely that to be accepted as an easement if the servient owner has incurred costs. An easement of fencing is an exception to this rule Rance v Elvin [1983].

The Right Must Be Against Other Land:An easement is a right over another's land not a right to possession. A right cannot qualify as an easement if it amounts to exclusive possession. It would not hold in court if the right excluded the servient owner from the use of his own land. The right could be considered an easement even where charges are made for use or general upkeep, as found in the case of London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993].

Express Grant And Implied Grants


Express grant: - If S owns a nearby farm he may make an express grant to D, who owns the house next door an easement over his farm. Express words constitute the most common form of grant. If S decides to sell his land, an easement has been created. This is legal and the grant will be contained in the deed of transfer or in the lease. A grant of an easement by express word is normally incorporated in a transfer of a freehold estate or a grant of a leasehold estate where it is intended that the new estate owner should enjoy certain rights of easement over the land retained by the transferor or lessor. [Gray: 2007]. After 1925 an easement for an interest became equivalent to fee simple in absolute possession, the term is absolute. If an easement was equitable before 1926 then if someone purchased the land off the servient owner they would then be able to take possession free of the equitable easement which had existed between the dominant and servient owners. An easement cannot be set up for life it can only exist as an equitable easement.

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This question is regarding lease, easement, trust and right of pre-emption in a registered disposition and so need to discuss each one step by step. As far as lease granted to imran is concerned, it is a legal and fixed for two years. According to s.52 of law of property act 1925 all the documents creating and transferring a legal estate must be by deed and a deed is defined in s.1 of law of property miscellaneous provisions act 1989. Therefore, the lease granted to imran should also be by deed. However, there is an exception to s.52 under s.54 (2) of law of property act 1925 and that is short lease exception. It means a lease,

which does not exceed three years. Here imran is protected under s.54 (2) as the lease granted to him is less than three years. s.54 (2) also provides that there is no need for a deed to create a legal estate. It has to be in possession and start immediately not at some time in future (Long v Tower Hamlets LBC 1998 CH 197). Imran has an immediate entitlement to possession and the estate has been created by a simple oral agreement (Hammond v Farrow 1904 2kb 332). As far as the entry of notice is concerned, it binds the purchaser for a valuable consideration under s.29 of land registration act 2002. However, imran's interest does not require an entry of notice under s.33 of land registration act 2002 as his lease is for less than three years. Imran's interest is also capable of being an overriding interest. Schedule 3 land registration act 2002 Para 1 says that legal leases for less than 7 years override registered dispositions, so imran's interest is binding on the new purchaser and Emily will have to let imran to continue to live in the house until the termination of his lease. While discussing Aunt Mildred's interest in the property we need to discuss what kind of interest she has in the property. Where a land is owned by one or two persons and others has contributed to the purchase price then equity intervenes therein and a trust arises and the person who has made financial contribution to the purchase price would have an equitable interest in the property and such kind of trust is known as resulting trust. Aunt Mildred contributed one third of the purchase price so she has an equitable interest in the property under resulting trust. Julie and zac hold the legal estate on trust for themselves and for Aunt Mildred. All three of them are beneficiaries holding equitable interests in the property known as resulting trust. (Dewar v Dewar 1975 1 WLR 1532).

We also need to consider the Doctrine of Overreaching. It applies when land subject to trust is sold. The beneficial interest in the estate on that sale turns in to money. The beneficial interest of the owner therefore moves from an interest in the land to an interest in the money and it is called overreaching. The interests of the beneficiaries who are in the actual occupation of the land could bind the purchaser under schedule 3 Para 2 of land registration act 2002. here also aunt Mildred is in actual occupation of the land subject to trust and could bind Emily as Mrs Boland's interest bound the mortgagee under earlier provisions of s.70(1)(g) of land registration act 1925 in Williams & glyns bank v Boland 1981 AC 487.

But if the capital money is paid to two trustees, the overreaching provisions operate to overreach even an overriding interest as happened in (city of London building society v flegg 1988 AC 54) and more recently in (Birmingham midshire mortgage services ltd v sabherwal (2000) 80 P & CR 256). So under s.2 sub section (1) and (2) of law of property act 1925 aunt Mildred's equitable interest is capable of being overreached by Emily if the statutory requirement in respect of the payment of capital money arising under a disposition upon trust for sale are complied with. As far as rajinder's right of easement is concerned, we need to know whether it is a legal or equitable easement. To establish a legal easement according to s.1(2) of law of property act 1925 it should be either forever or for a fixed period of time but if such is not the case then the easement could be an equitable easement under s.1(3) of law of property act 1925. Here the easement granted to rajinder is for a fixed period so satisfy the requirement of s.1 (2) of law of property act 1925. Another requirement for a legal easement is method of creation. According to s.52 (1) of law of property act 1925 to be a legal easement it should be created by deed. Here the easement has been created by deed but in order to take effect at law expressly created easements should be registered under s.27 of land registration act 2002. in current situation if the easement has been registered under s.27 of land registration act 2002 then it would be capable of binding Emily as new purchaser but if he fails to register it under s.27 then it will be equitable even if created by deed. Anita's interest in the property that is a right of pre-emption is an equitable interest and it should be in compliance with s.2 of law of property miscellaneous provisions act 1989. According to s.2 of Land Charges Act 1972 there are certain interests which can be registered as land charges. Right of pre-emption is a type of estate contract which comes in class c(4) under s.4 of Land Charges Act 1972.

Anita's right of pre-emption is also subject to registration under s.2 of Land Charges Act 1972. If Anita registers her right then it will be capable of binding anyone acquiring the land such as a subsequent purchaser. According to s.198 of Law of Property Act 1925, it will also be capable of constituting actual notice to all persons and for all purposes connected with the land. If she fails to register it then according to s.4 (6) of Land Charges Act 1972 Emily will not be affected by it (Midland Bank Trust Co. v Green 1981 AC 513) because the estate in question is a legal estate and it will be void only if Emily is a purchaser for money or money's worth. s.52 (Law of Property Act 1925)

s.1 (Law of Property Miscellaneous Provisions Act 1989) s.54 (2) (Law of Property Act 1925) Hammond v Farrow 1904 2KB 332 Long v Tower Hamlets LBC 1998 CH 197. s.27 (Land Registration Act 2002) s.29 (Land Registration Act 2002) s.33 (Land Registration Act 2002) Schedule 3 Para 1(Land Registration Act 2002) Dewar v Dewar 1975 1 WLR 1532 s.70 (1) (g) (Land Registration Act 1925) Williams & Glyn's Bank v Boland 1981 AC 487 City of London Building Society v Flegg 1988 AC 54 Birmingham Midshire Mortgage Services LTD v Sabherwal (2000) 80 P & CR 256 S. (2) SUB SECTION 2 & 3(Law of Property Act 1925) s.2 (Land Charges Act 1972) s.4 (Land Charges Act 1972) Midland Bank Trust Co. v Green 1981 AC 513.

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trust.php#ixzz2l9DrD3GX Follow us: @lawteachernet on Twitter | LawTeacherNet on FacebookFree Property and Trust Essay
QUESTION: 1) "The vendor and purchaser of land should make express provisions for any easements that they want. The law should rarely imply easements in their favour". Discuss. QUESTION: 2) "There is not equity in this court to perfect an imperfect gift" - Turner LJ in Milroy v Lord (1861) - How accurate is this statement in current English Law?

Question 1
It is suggested that 'the vendor and purchaser of land should make express provisions for any easements that they want' and that 'the law should rarely imply easements in their favour'. In order to evaluate this assertion it is first necessary to establish the characteristics of an easement, thus facilitating a discussion as to the various means by which easements may be acquired with particular reference to their acquisition by implied grant or reservation. An easement is a right which makes the use of a person's land more convenient or which accommodates or benefits it in some way. As it is a right that is imposed over someone else's land, it follows that it imposes a burden upon that land. Easements are also proprietary interests in land, meaning that the benefit and burden may pass to subsequent owners of the two pieces of land involved. The four characteristics of an easement were defined by the Court of Appeal in Re Ellenborough Park. Firstly, there must be a dominant and a servient tenement (the dominant tenement carries the benefit of the easement and the servient tenement carries the burden); secondly, the easement must accommodate, or benefit, the dominant tenement; thirdly, the dominant and servient tenement must not be both owned and occupied by the same person; finally, the right must be capable of forming the subject matter of a grant - that is, the person who grants the right must have the power to do so, the grantee must be capable of receiving it and the nature of the right claimed must be sufficiently clear and the owner of the servient tenement must not be deprived of too many of their rights. Having described the essential characteristics of an easement as involving the imposition of rights over someone else's land, it follows that the most obvious way in which such an easement can be created is where the owners of two neighbouring pieces of land agree that one of them is to have an easement over the land of the other. This is the manner in which easements are acquired in the vast majority of cases. Indeed, most express grants of easements occur when a person sells part of the land that they own; the vendor of the parcel of land and its purchaser making express provisions for the easements that they want and specifically agreeing the rights that are to subsist over the servient tenement.

In terms of formalities, section 1(2) of the Law of Property Act 1925 states that an easement is a right 'that is capable of subsisting or of being conveyed or created at law', that is, capable of being a legal interest, and can only be legal if 'for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute'. Moreover, section 52 of the Law of Property Act 1925 provides that a conveyance of land or of an interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed. Therefore, legal easements must be granted by deed. Easements may also be expressly reserved; where a vendor is selling part of their land, they may wish to reserve or keep back certain rights in their favour. Again, this involves a clear and express agreement between the vendor and the purchaser as to the rights that are to be enjoyed over the servient tenement. It is also necessary to consider the protection of easements. When land is conveyed under the unregistered system, the legal estate passes immediately on completion of the transaction; if conveyance is by deed and contains the grant of an easement, the easement takes effect immediately as a legal easement and binds the whole world irrespective of notice. The owner of the dominant tenement may enforce the right against the owner of the servient tenement. However, where title to the land is registered, section 27(1) of the Land Registration Act 2002 provides that the disposition of a registered estate that is required to be completed by registration does not operate at law until the registration requirements are met; this includes the express grant or reservation of an easement since it falls within section 1(2)(a) of the Law of Property Act 1925. Therefore, express grants of easements must be registered, and once registered will bind successive owners of the servient land. Until registration, the easement is merely an equitable easement. Registration will take place in the Property Register of the title to the dominant tenement and the Charges Register of the title to the servient tenement. In the majority of cases, therefore, 'the vendor and purchaser of land should make express provisions for any easements that they want': this enables a clear agreement to be reached between the parties as to the precise nature of the easements granted or reserved, and enables both parties to be certain as to their position. In an ideal world, all easements would be expressly granted or reserved; by examination of the deed of conveyance or entries on the register of title (depending on whether title to the land in question is registered or unregistered) any prospective purchaser should be able to establish what easements benefit and burden a property. However, there are certain circumstances in which the law will imply an easement. The two general rules relating to the acquisition of easements by implied grant or reservation were identified by Thesiger LJ in Wheeldon v. Burrows. The first rule relates to the rights which, in the absence of any express provision, will be acquired by the purchaser over the vendor's retained land. It states that the purchaser of land acquires all those continuous and apparent easements, or easements that are necessary to the reasonable enjoyment of the property sold, and which the vendor was using immediately prior to the sale. The second rule applies where a landowner sells part of his land and fails expressly to reserve any rights over the land that he has sold; in this case the vendor is not normally able to claim an implied easement. Thesiger LJ stated that these rules were based on the maxim that 'a grantor shall not derogate from his grant'; in other words 'a grantor having given a thing with one hand is not to take away the means of enjoying it with the other'. The requirement for a 'continuous and apparent' easement has been held to be some feature to be present on the servient tenement which would be apparent on an inspection and which has some degree of permanence, such as drains (in the case of a implied

drainage easement) or a path. There are some exceptions to the second rule in Wheeldon v. Burrows. The first of these are easements of necessity; for example, where a purchaser buys land to which there is no access except by crossing the land of the vendor, and there is no express grant of a right of access, then an easement of necessity will be implied to prevent the purchaser from becoming landlocked. However, the purchaser will only be entitled to what is necessary and not that which is merely convenient; the right will be limited to that which was necessary at the time of the grant and will not give the purchaser a right for all purposes. There may also be other exceptions to the rule that a person may not derogate from his grant: for instance in Pwllbach Colliery Co. Ltd v. Woodman, Lord Parker considered that an easement will also be implied if it is necessary to give effect to the common intention of the parties. However, it is necessary to show that the land was meant to be used in a particular way and that the parties must have intended there be a right granted in order that it may be so used. Having considered the circumstances in which easements may be expressly granted or reserved and may be acquired by implication, it is clear that, as suggested, the vendor and purchaser of land should make express provisions for any easements that they want. This would provide certainty to all persons interested in a particular piece of land as to the nature of the easements with which it is burdened or benefited. However, it is also clear that, since not all easements are the subject matter of an express grant, the law must intervene to imply easements under certain circumstances. This is done to prevent unfairness to purchasers who could otherwise, for example, find themselves landlocked or without drainage facilities. It is also true however, that the law will 'rarely imply easements'; seeking to limit this to those in current usage that are necessary for reasonable enjoyment, limiting easements of necessity to exclude rights which would be merely convenient and only exceptionally implying other easements to give effect to the common intention of the parties. Therefore, the statement provided represents a very good encapsulation of the current law.

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