Libro Commonwealth Caribbean Property Law de Kodilinye, Gilbert

Tabla de Contenidos del libro

Preface

Table of cases

xvi

Tables of legislation

xxxvii

1 Introduction

Origins of Land Laws

(1)

The Doctrine of Estates

(1)

Fee simple estate (otherwise called `freehold')

(1)

Leasehold estate

(1)

Life estate

(1)

Fee tail estate

(1)

Legal And Equitable Estates And Interests

(2)

Registration of title

(1)

The Meaning Of Land

(3)

The distinction between fixtures and chattels

(1)

The degree of annexation

(1)

The purpose of annexation

(1)

Chattel houses

(2)

2 Creation Of Leases

(13)

Essential Characteristics Of Leases

(6)

Exclusive possession

(1)

Distinguishing between leases and licences

(1)

Examples of the lease/licence dichotomy it the Caribbean

(3)

Certainty of duration

(1)

Formalities For Creation Of Leases

(1)

Effect of non-compliance with formalities

(1)

Leases And Agreement For Lease Compared

(2)

(1) Dependency on specific performance

(1)

(2) Third parties

(1)

Types Of Tenancy

(4)

Lease for a fixed period

(1)

Periodic tenancy

(1)

Tenancy at will

(1)

Tenancy at sufferance

(1)

Tenancy by estoppel

(1)

3 Leasehold Covenants

(14)

Landlord's Implied Obligations

(6)

Covenant for quiet enjoyment

(3)

Covenant not to derogate from the grant

(1)

Covenant as to fitness for habitation

(1)

Furnished lettings

(1)

High-rise apartment buildings

(1)

Statutory provisions

(1)

Covenant to repair

(1)

Tenant's Implied Obligation

(1)

Obligation not to commit waste

(1)

Express Covenants

(8)

Covenant to pay rent

(1)

Covenant to repair

(1)

Fair wear and tear

(1)

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

(1)

Effect of breach

(1)

Reasonableness of refusal of consent

(1)

Option to purchase the reversion

(2)

Option to renew a lease

(1)

4 Assignment, Termination Of Leases And Distress

(24)

Assignment Of Lease And Reversion

(2)

Touching and concerning the land

(1)

Running of the benefits and burdens of covenants

(1)

Termination Of Leases And Tenancies

(13)

Forfeiture

(1)

Waiver or forfeiture

(1)

Forfeiture for non-payment of rent

(1)

Relief against forfeiture

(1)

Forfeiture for breaches of other covenants

(1)

Reasonable time

(2)

Remediability of the breach

(1)

Relief against forfeiture

(1)

Surrender

(1)

Merger

(1)

Effluxion or time

(1)

Notice to quit

(4)

Frustration

(1)

Distress

(7)

Time and place

(3)

Distrainable goods

(1)

Privileged goods

(1)

Third parties' goods

(1)

Procedure for levying distress

(1)

Impounding

(1)

Replevin

(1)

Illegal, excessive and irregular distress

(1)

Action for double value

(1)

Injunction

(1)

Tenant's Right To Fixtures

(2)

Chattel houses

(1)

5 Statutory Tenancies

(17)

A The Rent Restriction Act (Jamaica)

(1)

Scope Of The Act

(13)

Status of irremovability

(2)

The corporate tenant

(1)

The non-occupying tenant

(2)

Grounds for recovery of possession

(1)

Premises reasonably required for landlord's own use

(1)

`Reasonably required'

(2)

Premises required for repairs, improvement or rebuilding

(1)

Hardship and reasonableness

(1)

Alternative accommodation

(2)

Prohibition of eviction

(1)

Rent control

(1)

B The Land Tenant's (Security Of Tenure) Act 1981 (Trinidad And Tobago)

(3)

6 Licences

(13)

Types Of Licence

(13)

Bare licence

(1)

Licence coupled with an interest

(1)

Contractual licence

(1)

Revocability of contractual licence

(1)

Contractual licences and third parties

(2)

Licence protected by estoppel

(1)

Incomplete gifts

(2)

Reasonable expectation of acquisition of a right

(2)

Unilateral mistake

(1)

The modern approach

(2)

Satisfying the claimant's equity

(1)

Estoppel licences and third parties

(1)

7 Co-Ownership

(10)

Joint Tenancy

(1)

Unity between joint tenants

(1)

Unity of possession

(1)

Unity interest

(1)

Unity of title

(1)

Unity of time

(1)

Tenancy In Common

(3)

Law and equity

(1)

Equitable presumption of tenancy in common

(1)

Purchase money provided in unequal shares

(1)

Loan on mortgage

(1)

Partnership assets

(1)

Individual business purposes

(1)

Severance Of Joint Tenancy

(4)

Act of joint tenant operating upon his own share

(1)

Alienation

(1)

Commencement of litigation

(1)

Mutual agreement

(1)

Course of dealing

(1)

Other methods of severance

(1)

Acquisition of an additional estate in the land

(1)

Severance by written notice

(1)

Partition

(2)

8 Condominium

(9)

Condominium Legislation

(1)

Nature Of The Interest Of The Unit Owner

(1)

Definition Of `Unit' And `Common Property'

100

(1)

Method Of Establishing A Condominium

101

(3)

The declaration

101

(1)

Who must execute declaration

102

(1)

Registration of declaration

102

(1)

Unit entitlement

103

(1)

Drawings and plans

103

(1)

Existing mortgages

103

(1)

No partition of common property

103

(1)

Bylaws

104

(1)

The Body Corporate

104

(3)

Duties of body corporate

104

(2)

Default in payment of contributions

106

(1)

Termination Of Condominium Scheme

107

(1)

9 Restrictive Covenants

108

(25)

Running Of The Burden

108

(5)

The position at common law

108

(1)

The position in equity

109

(1)

Requirements for the running of the burden in equity

110

(1)

The covenant must be negative in nature

110

(1)

The covenant must be made for the protection of other land retained by the covenantee

110

(1)

It must have been the common intention of the parties that the burden of the covenant should run with the covenantor's land

111

(1)

Persons bound by restrictive covenants

111

(1)

Registration

112

(1)

Positive covenants

112

(1)

Running Of The Benefit

113

(11)

The position at common law

113

(1)

Covenant must touch and concern the land

113

(1)

Covenantee must have a legal estate

113

(1)

The position in equity

114

(1)

Annexation

115

(1)

Implied annexation

116

(1)

Statutory annexation

117

(1)

Area to be benefited

118

(1)

Express assignment

119

(1)

Schemes or development

120

(1)

The modern position

121

(3)

Discharge And Modification

124

(9)

Obsolescence (ground (a))

125

(2)

Impeding the reasonable user of the land (ground (b))

127

(2)

Agreement to discharge or modification (ground (c))

129

(1)

No injury to objectors (ground (d))

129

(2)

The `thin end of the wedge' argument

131

(2)

10 Easements

133

(35)

Definition

133

(1)

Requirements For A Valid Easement

134

(7)

There must be a dominant and a servient tenement

134

(1)

An easement must accommodate the dominant tenement

135

(1)

Propinquity

135

(1)

Personal advantages

136

(1)

The dominant and servient tenements must not be both owned and occupied by the same person

136

(1)

The right must be capable of forming the subject matter or a grant

137

(1)

(i) The right must he sufficiently defined - that is, it must not be too vague

137

(1)

(ii) The right must not substantially deprive the servient owner of possession of the servient tenement

138

(1)

(iii) There must be a capable grantor and grantee

139

(1)

An easement must be negative from the point of view of the servient owner - that is, it must not involve the servient owner in any expenditure

140

(1)

Legal and equitable easements

140

(1)

Acquisition Of Easements

141

(6)

Express grant

141

(1)

Express reservation

141

(1)

Implied grant

141

(1)

Easements of necessity

142

(1)

Meaning of `necessity'

143

(1)

Intended easements

144

(1)

Easements implied under the rule in Wheeldon v Burrows

144

(2)

Implied reservation

146

(1)

Easements of necessity

146

(1)

Intended easements

146

(1)

Non-applicability of Wheeldon v Burrows

147

(1)

Sales or both quasi-dominant and quasi-servient tenements

147

(1)

Acquisition Under Statutory Provisions

147

(4)

Purpose of the provisions

148

(1)

Limitations on the application of the provisions

149

(1)

The right claimed under the provisions must be capable of being an easement - that is, it must be recognised by the law as an easement

149

(1)

Section 62 will not operate unless there has been some diversity of ownership or occupation of the dominant and servient tenements prior to the conveyance

150

(1)

There must be a `conveyance' of land

150

(1)

Section 62 may he excluded by express exception in conveyance

150

(1)

Acquisition By Presumed Grant (Prescription)

151

(4)

Basis of prescription

151

(1)

Requirements for prescription

152

(1)

User as of right

152

(1)

Continuous user

153

(1)

User in fee simple

154

(1)

Methods Of Prescription

155

(3)

Prescription at common law

155

(1)

Prescription under the doctrine of the lost modern grant

155

(1)

Prescription under the Prescription Acts

156

(1)

Easements other than light

156

(2)

Other Provisions In The Acts

158

(3)

Enjoyment `next before action'

159

(1)

Unity of ownership or possession

159

(1)

Statutory interruption

159

(1)

Easement of light

160

(1)

Right to use a beach

160

(1)

Extent Of Easements

161

(7)

Easements acquired by express grant or reservation

162

(1)

Easements acquired by implied grant or reservation

163

(1)

Easements acquired by prescription

164

(2)

Extinguishment of easements

166

(1)

By unity of ownership and possession of the dominant and servient tenements

166

(1)

By express release by deed

166

(1)

By implied release (`abandonment')

166

(2)

11 Mortgages

168

(23)

Form

168

(1)

Rights Of The Mortgagor

169

(6)

Legal right to redeem

169

(1)

Equitable right to redeem

169

(1)

The equity of redemption

170

(1)

Clogging the equity of redemption

170

(1)

Excluding the right to redeem

171

(1)

Postponement of right to redeem

172

(1)

Collateral advantages

173

(1)

Unfairness and unconscionability

173

(1)

Restriction of redemption

173

(1)

Restraint of trade

174

(1)

Rights Of Mortgagor In Possession

175

(1)

Rights Of Mortgagee

175

(14)

Action on the personal covenant

176

(1)

Right to enter into possession

176

(3)

Right to appoint a receiver

179

(1)

Power of sale

179

(2)

Mode of sale

181

(1)

Effect of sale

181

(1)

Protection of purchaser

181

(1)

Application of proceeds of sale

181

(1)

Bad faith

182

(1)

Restraining exercise of the power of sale

183

(1)

Mortgagee's duty of care

184

(4)

Right to foreclose

188

(1)

Reopening of a foreclosure

188

(1)

Sale in lieu of foreclosure

189

(1)

Rights Of Equitable Mortgagee

189

(1)

Tacking And Consolidation

189

(2)

Right to tack further advances

189

(1)

Right to consolidate

190

(1)

12 Adverse Possession

191

(10)

Dispossession Of Tenant

192

(1)

Inchoate Rights Of Adverse Possessor

192

(1)

Requirements For Acquisition Of Title By Adverse Possession

193

(4)

Discontinuance of possession

193

(1)

Possession by adverse possessor

193

(1)

Factual possession

193

(3)

Animus possidendi

196

(1)

Nature Of Acts Amounting To Adverse Possession

197

(3)

User of part of the land

198

(2)

Resumption Of Possession By Paper Owner

200

(1)

13 Sale Of Land

201

(10)

Dealings Before The Contract Is Signed

201

(1)

Statutory Formalities - Written Note Or Memorandum

202

(1)

Contents Of The Memorandum

202

(1)

Description of the parties

202

(1)

Description of the property

202

(1)

Price

203

(1)

Other terms

203

(1)

Signature by the party to be charged

203

(1)

Joinder Of Documents

203

(1)

Absence Of Sufficient Memorandum

204

(1)

Part-Performance

204

(1)

Formal Contract Of Sale

205

(1)

`Open' Contracts For The Sale Of Land

205

(1)

Payment Of Deposit

206

(1)

The Position Pending Completion

207

(1)

Vendor's Duties Regarding Title

207

(1)

Good `Root Of Title'

208

(1)

Purchaser's Duty To Investigate

209

(1)

Registered Land

210

(1)

14 Registration Of Title

211

(16)

The Registration Process

211

(4)

Bringing land under the Act

211

(1)

Effect of registration of proprietor with absolute title

211

(1)

Requirements for an application to have land brought under the Act

212

(2)

Role of the Referee of Titles

214

(1)

Title to be registered

214

(1)

Possession of and dealing with documents evidencing title

214

(1)

Bringing land under the operation of the Act

215

(1)

Caveat Against First Registration

215

(2)

Caveat Against Dealings

217

(1)

Indefeasibility Of Registered Title

218

(3)

Meaning of `fraud'

220

(1)

In Personam Liabilities

221

(1)

Actions Against Registered Proprietor

222

(1)

Cancellation Of Certificate Of Title

222

(3)

Actions Against The Registrar

225

(2)

Appendix 1 Sample Property Sale Agreement

227

(5)

Appendix 2 Sample Lease Agreement

232

(3)

Appendix 3 Sample Memorandum Of Mortgage

235

(3)

Index

238

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Commonwealth Caribbean Property Law

por Kodilinye, Gilbert

Commonwealth Caribbean Property Law