1) In 2002, Jane and Francis (the Smiths) bought a plot of land from George, a local farmer. The plot was adjacent to the land on which George’s house stood and used to be part of the farm. George had built a large house on the plot which was sold to the Smiths with the plot of land and has been their home ever since. Both George’s land and that sold to the Smiths use the same driveway for access which runs through George’s land.
The Smiths were attracted to the house and land by its beautiful location. It sits in the countryside with a river on one boundary of the large garden and a rocky hillside to the rear and other side, accessible only by walkers. Soon after moving in, Francis noticed an old doorway in the rocky hillside, and after exploring it, he saw that it led into a tunnel.
This tunnel was quite long with a cave near its other end. At the end was another door which did not seem to have been opened for years, looking through the overgrown plants on the other side of this door he could see that it opened into George’s garden. Looking around the cave, Francis realised that it fell within George’s land, but as it did not seem to have been used for a long time, and there were only a few old pieces of rusty gardening equipment in it, Francis came to the conclusion that it had been abandoned. Believing it would be the perfect location to store his collection of rare and unusual wines; Francis has been storing them there ever since.
In January 2021, George died and his land was sold to Reno Builders. They intend to renovate George’s house and sell it. When they were clearing the overgrown garden, they discovered George’s door into the cave and were unhappy when they noticed that Francis was using it to store his wines.
Reno Builders are also concerned about the effect of the shared driveway on the value of their land. They want to secure George’s land by building a wall and installing electric gates. It is difficult to do this in a visually pleasing way while the Smiths continue to use the driveway.
When Reno Builders bought the house, it was clear from the conveyancing documents that neither the use of the cave, nor the Smiths’ right to use the driveway were mentioned in them. Reno Builders have now written to the Smiths requiring them to immediately cease their use of the cave and the driveway.
Advise Jane and Francis (the Smiths) of their rights, if any, in relation to these issues. (800 -1000 words)
[50 marks]
Continued…
2) Considering the context in which these provisions arise, explain the effect of ss.101, 103 and 105 of the Law of Property Act 1925 on mortgagors and mortgagees.
It is important that you explain these points in your own words and cite authority where appropriate when writing your answer. (800 -1000 words )
[50 marks]
