Commonwealth Caribbean Property Law (1)

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  • COMMONWEALTHCARIBBEAN

    PROPERTY LAW

    Cavendish Publishing

    Limited

    CPCavendish Publishing

    Limited

    CPLondon Sydney

  • COMMONWEALTHCARIBBEAN

    PROPERTY LAW

    Gilbert Kodilinye, MA, LLM, Barrister

    Professor of Property LawUniversity of the West Indies

    Cavendish Publishing

    Limited

    CPLondon Sydney

  • First published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United KingdomTelephone: +44 (0) 20 7278 8000 Facsimile: +44 (0) 20 7278 8080E-mail: info@cavendishpublishing.comVisit our Home Page on http://www.cavendishpublishing.com

    Kodilinye, G 2000

    All rights reserved. No part of this publication may be reproduced, stored in aretrieval system, or transmitted, in any form or by any means, electronic,mechanical, photocopying, recording, scanning or otherwise, except under theterms of the Copyright Designs and Patents Act 1988 or under the terms of alicence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,London W1P 9HE, UK, without the prior permission in writing of thepublisher.

    Kodilinye, GilbertCaribbean Property Law (Caribbean Series)I TitleII Series347.29064

    ISBN 1 85941 116 9

    Printed and bound in Great Britain

  • PREFACE

    Property law (land law) is a subject area which students throughout thecommon law world find difficult and technical. This may be due partly to thefact that, as Oliver Cromwell put it, English land law is an ungodly jumble,but one suspects that it may also be due to lack of imagination in thepresentation of the subject by some law teachers. The aim of this book is to de-mystify the subject by analysing and explaining the concepts and principles ofland law in a modern setting which the reader can readily identify andappreciate. Whenever possible, Commonwealth Caribbean cases have beenused in illustration, with reference to the more important statutory provisionsin Caribbean jurisdictions.

    Although conceived primarily as a text for students reading for the LLBdegree in West Indian universities, it is hoped that practitioners also will findthe book useful as a work of reference. It may also be of interest to those realestate agents, surveyors and other professionals who require some knowledgeof land law.

    I am grateful to Mr Christopher Malcolm and Mrs Tara Leevy-Malcolm,Attorneys-at-Law (Kingston), for sending me some very useful materials. Mydear wife, Vanessa Kodilinye, Attorney-at-Law (Bridgetown), was a constantsource of encouragement to me, particularly at times when my enthusiasm forthe project was at a low ebb. She also diligently and cheerfully assisted me inthe preparation of the tables and index, in proof reading, and in makingseveral very useful suggestions for improving the text. I should like also toexpress my appreciation for the efforts of the students who have patientlyand, in most cases, successfully applied themselves to the study of propertylaw in this region. I sincerely hope that they will begin to see the beauty ofland law through a new, more diaphanous veil!

    Lastly, my thanks are due to the staff of Cavendish Publishing for theirprofessionalism and their co-operation at all stages of production of this book.

    Gilbert Kodilinye Faculty of Law

    University of the West IndiesCave Hill Campus, Barbados

    January 2000

    v

  • CONTENTS

    Preface vTable of Cases xiiiTable of Statutes xxxvii

    1 INTRODUCTION 1

    ORIGINS OF LAND LAW 1THE DOCTRINE OF ESTATES 2

    Fee simple estate (otherwise called freehold) 2Leasehold estate 3Life estate 3Fee tail estate 3

    LEGAL AND EQUITABLE ESTATES AND INTERESTS 3Registration of title 4

    2 CREATION OF LEASES 7

    ESSENTIAL CHARACTERISTICS OF LEASES 7Exclusive possession 8Certainty of duration 13

    FORMALITIES FOR CREATION OF LEASES 14Effect of non-compliance with formalities 15

    LEASE AND AGREEMENT FOR LEASE COMPARED 16Dependency on specific performance 16Third parties 17

    TYPES OF TENANCIES 18Lease for a fixed period 18Periodic tenancy 18Tenancy at will 19Tenancy at sufferance 20Tenancy by estoppel 21

    3 LEASEHOLD COVENANTS 23

    LANDLORDS IMPLIED OBLIGATIONS 23Covenant for quiet enjoyment 23Covenant not to derogate from the grant 27Covenant as to fitness for habitation 28Covenant to repair 30

    TENANTS IMPLIED OBLIGATION 30Obligation not to commit waste 30

    EXPRESS COVENANTS 31Covenant to pay rent 32Covenant to repair 33

    vii

  • Covenant not to assign, sublet or part with possession of the demised premises 35

    Option to purchase the reversion 37Option to renew a lease 39

    4 ASSIGNMENT, TERMINATION OF LEASES AND DISTRESS 41

    ASSIGNMENT OF LEASE AND REVERSION 41Touching and concerning the land 42Running of the benefits and burdens of covenants 43

    TERMINATION OF LEASES AND TENANCIES 44Forfeiture 44Surrender 53Merger 54Effluxion of time 54Notice to quit 54Frustration 57

    DISTRESS 58Time and place 59Distrainable goods 62Privileged goods 62Third parties goods 63Procedure for levying distress 63

    TENANTS RIGHT TO FIXTURES 67

    5 THE RENT RESTRICTION ACTS 71

    SCOPE OF THE ACTS 72SECURITY OF TENURE 73

    Status of irremovability 73Grounds for recovery of possession 79Statutory tenancy by succession 88

    RENT CONTROL 92Standard rent 93

    THE RENT RESTRICTION (DWELLING HOUSES) ACT 1981(TRINIDAD AND TOBAGO) 94

    THE LAND TENANTS (SECURITY OF TENURE) ACT 1981 (TRINIDAD AND TOBAGO) 96

    6 LICENCES 101

    TYPES OF LICENCE 101Bare licence 101Licence coupled with an interest 102Contractual licence 102Licence protected by estoppel 106

    Commonwealth Caribbean Property Law

    viii

  • Contents

    7 CO-OWNERSHIP 117

    JOINT TENANCY 117Unity between joint tenants 118

    TENANCY IN COMMON 119Law and equity 119Equitable presumption of tenancy in common 120

    SEVERANCE OF JOINT TENANCY 122Act of joint tenant operating upon his own share 123Mutual agreement 124Course of dealing 125Other methods of severance 125

    PARTITION 127

    8 CONDOMINIUM 129

    CONDOMINIUM LEGISLATION 129NATURE OF THE INTEREST OF THE UNIT OWNER 129DEFINITION OF UNIT AND COMMON PROPERTY 131METHOD OF ESTABLISHING A CONDOMINIUM 131

    The declaration 131Bylaws 135

    THE BODY CORPORATE 135Duties of body corporate 136Default in payment of contributions 137

    TERMINATION OF CONDOMINIUM SCHEME 138

    9 RESTRICTIVE COVENANTS 141

    RUNNING OF THE BURDEN 142The position at common law 142The position in equity 143Requirements for the running of the burden in equity 144

    RUNNING OF THE BENEFIT 148The position at common law 148The position in equity 149Annexation 150Express assignment 155Schemes of development 156

    DISCHARGE AND MODIFICATION 162Obsolescence (ground (a)) 163Impeding the reasonable user of the land (ground (b)) 165Agreement to discharge or modification (ground c)) 167No injury to objectors (ground d)) 167

    ix

  • 10 EASEMENTS 171

    DEFINITION 171REQUIREMENTS FOR A VALID EASEMENT 172

    There must be a dominant and a servient tenement 173An easement must accommodate the dominant tenement 174The right must be capable of forming the subject matter of a grant 176An easement must be negative from the point of view of the

    servient owner 180ACQUISITION OF EASEMENTS 181

    Express grant 181Express reservation 181Implied grant 182Implied reservation 188

    ACQUISITION UNDER STATUTORY PROVISIONS 189Purpose of the sections 190Limitations on the application of the sections 191

    ACQUISITION BY PRESUMED GRANT (PRESCRIPTION) 194Basis of prescription 194Requirements for prescription 195

    METHODS OF PRESCRIPTION 199Prescription at common law 199Prescription under the doctrine of the lost modern grant 199Prescription under the Prescription Acts 200

    OTHER PROVISIONS IN THE ACTS 202Enjoyment next before action 203Unity of ownership or possession 203Statutory interruption 204

    EASEMENT OF LIGHT 204RIGHT TO USE A BEACH 205

    Extent of easements 206Extinguishment of easements 211

    11 MORTGAGES 215

    FORM 215RIGHTS OF THE MORTGAGOR 216

    Legal right to redeem 216Equitable right to redeem 217The equity of redemption 217Clogging the equity of redemption 218Excluding the right to redeem 218Postponement of right to redeem 220Collateral advantages 221Restraint of trade 223

    Commonwealth Caribbean Property Law

    x

  • Contents

    RIGHTS OF MORTGAGOR IN POSSESSION 224RIGHTS OF MORTGAGEE 225

    Action on the personal covenant 225Right to enter into possession 225Right to appoint a receiver 228Power of sale 229Mortgagees duty of care 234Right to foreclose 238

    RIGHTS OF EQUITABLE MORTGAGEE 239TACKING AND CONSOLIDATION 240

    Right to tack further advances 240Right to consolidate 241

    12 ADVERSE POSSESSION 243

    DISPOSSESSION OF TENANT 244INCHOATE RIGHTS OF ADVERSE POSSESSOR 245REQUIREMENTS FOR ACQUISITION OF TITLE BY 245ADVERSE POSSESSION 245

    Discontinuance of possession 245Possession by adverse possessor 246

    NATURE OF ACTS AMOUNTING TO ADVERSE POSSESSION 248User of part of the land 250

    RESUMPTION OF POSSESSION BY PAPER OWNER 252

    Index 255

    xi

  • xiii

    TABLE OF CASES

    Abbey National Building Society v Maybeech Ltd [1984] 3 All ER 262 52Abbeyfield (Harpenden) Society Ltd v Woods [1968] 1 WLR 374 9Adam v Besseling (1987) High Court, Trinidad and Tobago,

    No 2504 of 1987 (unreported) 32Adams v Workers Trust and Merchant Bank Ltd (1992)

    Supreme Court, Jamaica, No CLA 130 of 1989 (unreported) 238Adams and Kensington Vestry, Re (1884) 27 Ch D 394 38Aldin v Latimer, Clark, Muirhead and Co [1894] 2 Ch 437 27Alexander v Rampersad (1989) High Court, Trinidad and

    Tob