PROPERTY 1 – GROUP I

TUTOR: CHRISTOPHER MACARTHUR

STUDENT: NICK WOOD

WORDS: 1,570

(print, re-read, edit, re-print, hand in... all in Bentham tomorrow).

The first claim to title the question asks of the author is who has the greatest entitlement to
the camera in the question. Allison’s claim to the title of the camera rests on her rights as a
bailee following a bailment that was agreed between herself and Tillie. In the case ‘The
Winkfield’ the court ruled that the Postmaster-General, the bailee in the case, had rights of
possession when ruling that these rights had been violated and that the Winkfield should pay
full damages to the bailee before having to answer to any action by the bailor. Though this
case does establish rights for a bailee, and Allison can argue prior possession, her claim to
title of the camera is weak. A bailment, according to Mozley and Whiteley’s Law Dictionary
(9th edition by John B Saunders), is a delivery of goods from a bailor to a bailee, for some
purpose, upon a contract, express or implied, that, after the purpose has been fulfilled they
shall be re-delivered to the bailor or otherwise dealt with according to his directions or kept
until he reclaims them. The implied contract agreed between Tillie and Allison was
potentially never fulfilled as Allison never returned Tillie the camera, potentially rendering
the bailment invalid and harming Allison’s rights as a bailee. Furthermore, while the
Winkfield does establish bailee’s rights, it does so “as against the wrongdoer, possession is
title” (Collins MR). In this way, the cause of MXP Camera Repair Shop retaining possession
of the camera is given weight as it was Allison’s negligence that broke the camera and it was
her decision to give away possession, potentially temporarily intentionally abandoning the
property as in the case Popov v Hayashi. The scenario here is similar to the case Tappenden v
Artus where Rayleigh Garage who were unpaid for the repair they carried out upon the
property (a van in this case) and neither the bailor or bailee were entitled to retain it as it was
held that the artificer was entitled to a common lien upon it in respect of the repairs and they
were entitled to enforce that lien against the bailor because of the authority bestowed upon
the bailee, meaning that their right to title with respect to the camera was not just greater than
Allison’s but also Carl’s as the executor of the bailee. Furthermore as the present possessors
with intention to possess and physical possession in a Common Law tradition where
possession is title (the Winkfield) who, according to case law, shouldn’t lose out on their
payment at the hands of a wrongdoer’s negligence, MXP have a better claim to the cameras
title than Allison. Carl should consider MXP the rightful owners of the camera until they are
paid for their repairs by Allison.

The second claim to title this question asks its author to address relates to a house Norman
and Tillie bought when a couple where Rooney has a two-year lease for a room in the house.
First, I shall address whether Norman can claim sole ownership of the house and rent from
Tillie for the last 5 years. The first important issue is as to whether Norman and Tillie when
buying the house were investing in a joint tenancy or a tenancy in common. The importance
of this distinction is that a joint tenancy carries a right of survivorship whilst a tenancy in
common does not. The distinction established in both statute (such as the Joint Tenancy Act)
and in case law (such as in Murphy v Gooch) is that a joint tenancy requires interests to be
identical to each other and four unities, those of possession, interest, title and time. Tenancy
in common can have unequal shares in the property and only requires a unity of possession.
Seeing as these four unities were present when the house was purchased at this point there
was a joint tenancy established. A joint tenancy can be turned into an equal tenancy in
common by a process of equity called severance however. The two main authorities on
severance are Harris v Goddard and Re Draper’s Conveyance where the former severance
was refused and the latter it was allowed. The distinction was that the relief in Harris wasn’t
sufficient (the prayer in a divorce petition that only “seeks relief in the most general and
unparticularised terms”) for severance whilst in Re Draper’s conveyance the relief (starting
legal proceedings for divorce) was deemed sufficient. It is unlikely that the joint tenancy was
severed by Norman leaving for New Zealand five years ago as there was no notice of
severance served by one owner to the other. This entitles Norman to sole ownership of the
house. The aforementioned case Murphy v Gooch provides a useful starting point when
considering whether or not Norman is entitled to five years rent from Tillie during the five
years he was abroad and not living in their shared house. While in Murphy v Gooch Ms
Murphy succeeded in reclaiming rent from Mr Gooch an important distinction can be made
between that case and this one. Norman left Tillie out of choice, with another woman (Lucy),
whereas in Murphy the relationship irrevocably broke down and it was Mr Gooch who reaped
all the financial benefits of the breakdown of his relationship. With this distinction in mind, I
would suggest Norman was not entitled to Tillie’s rent from the five years after he left her for
a new woman on the other side of the world, especially as he had previously enjoyed five
years of occupancy.

The second claim the question asks the author to consider in relation to the house is whether
Rooney is entitled to see out the remaining 18 months on his two-year lease for a room in the
house despite Tillie’s death. If this fixed-term lease is valid it follows that he should be
entitled to do this. In order for a lease to exist, it must be shown that all the requirements for
the proper constitution of a lease have been fulfilled. These requirements were listed in the
case of Street v Mountford [1985]; in this case Lord Templeman defined a lease simply as
`exclusive possession for a time at a rent'. There is no indication that Rooney is enjoying
anything other than exclusive possession of his room. Neither is there any indication that the
terms of the agreement do not include a rent to act as valuable consideration for the lease
agreement. We can therefore conclude that, prima facie, it would appear that a valid lease (for
the period of another 18 months) was created by virtue of the agreement between Rooney and
Tillie, the previous owner of the house and that he should be allowed to see it out under the
conditions established expressly and implied by his lease.

Rooney’s claim to the books, the third and final property the question asks the author to
consider, rests on the fact that Tillie made a ‘gift’ of the books on the shelves in the lounge
for him. Gifts are a recognised principle in the English common law tradition and in this way,
if it can be proved that Tillie decided that the books should be a testamentary gift, Rooney’s
claim can be seen to be strong. Despite this, due to a principle established in relation to
conveyancing in the case Re Cole where making a gift of something with words to the effect
of "it's all yours" is not valid to make a gift as delivery is required. The principle that delivery
is required was established in Thomas v The Times Book Co Ltd. Once again though, in a
system where relativity of title is a feature it is worth considering any competing claims
before dismissing an existing one for its flaws. Norman holds the most likely claim to
succeed in attaining possession of the books as the owner of the house, which gives him a
strong claim to title (Waverley Borough Council v Fletcher as authority).

Mozley and Whiteley’s Law Dictionary (9th edition by John B Saunders) makes four points
outlining the duties of an executor. Three of them deal with possession, these are “To prove
the will of the deceased”, “To make an inventory of the goods and chattels of the deceased
and to collect the goods so inventoried; and for this purpose if necessary to take proceedings
against debtors to his testator’s estates” and “To pay first the debts of his testator and then the
legacies bequeathed by his will; and to distribute the residue in default of any residuary
disposition among the persons entitled thereto on an intestacy”. These duties may offer Carl
as the executor of Tillie’s estate rights to Tillie’s possessions, but only if there are no other
claims or if jus tertii is invoked. Jus tertii is rarely invoked unless absolutely unnecessary,
even if it seems like a good idea as it arguably would have been in Costello v Derbyshire
Constabulary and in all the claims we are asked to consider there are claims however so I
would not suggest to Carl that he was entitled to any of the camera, house or books. I would
advise him that MXP should retain the camera until Allison pays for the repair of it fully, that
Norman should have sole ownership of the house and ownership of the books and that
Rooney should be allowed to see out his lease.