Trusts are the most notable of contributions made to the English Law. Trust originated in the late 12th and early 13th century and the broad meaning assigned was to take care of a property, in the absence of the owner, by a caretaker, until the owner came back to take charge of the property. Over the period of time, various types of trusts came into existence and their roles started getting varied and the implications broadened. The English Law clearly defines the parties to the trust as investors or contributors, who contributed certain amounts for the final payments made for purchase of the party.
The case in study is of the implied trust and the facts are quite clearly defined and stated. When there are two parties involved in the purchase of a property and they are not related to each other and they make contributions towards the final payment for purchase of a property, the law of Implied Trust comes into force. This is applicable even if the two parties have not entered into a written agreement or deed and even if the property has been registered in the name of one of the investor. The Law The law is very clear and also very much in favor of the silent investor.
But what happens if the silent investor shows no concern for the share it holds in the concerned property? Should the buyers deal with the Sole Registered Proprietor and close the deal and let the selling partners decide among themselves about their shares? The buyers can do that, as legally the silent partner has not staked any claim and moreover the Law concerning the Implied Trust section is applicable to the two selling partners, in this case they being Derek and Elizabeth. The buying parties, Charles and Charmaine, are not involved in the provisions of Implied Trust applicable in this case to Derek and Elizabeth.
There is no denying that Elizabeth has a legitimate right to her share in the sale amount of the property in question, that is Rose Cottage and her share shall be proportional to the amount of her contribution in the purchase price she and her partner Derek paid. There need not be a written agreement between Derek and Elizabeth to this effect. The Conclusion In the absence of a claim by Elizabeth at this stage does not absolve Charles and Charmaine of their responsibility towards her rights, especially since they have come to know of the facts and also of Elizabeth's contribution in the purchase amount.
To keep their investment in the concerned property, Rose Cottage, safe and free of any litigation in future also, they should make a clear and just offer to Elizabeth for the proportionate amount and get from her a written acknowledgement for this payment. In case she shows no inclination towards the deal, then Charles and Charmaine should get a written statement from Derek that the settlement of Implied Trust between him and Elizabeth shall in no way be detrimental to the ownership rights of Charles and Charmaine.
(a)-(ii) Would your advice to Charles and Charmaine change if Derek and his brother Bob were joint registered proprietors of Rose Cottage at the time of sale to Charles and Charmaine? In the first scenario, the sellers Derek and Elizabeth were partners in a specific transaction involving an immovable asset. There was no written agreement, deed or contract between them for the specific purpose of this transaction. It was a clear case of Implied Trust and the Law is supposed to take its own course.
In the case discussed above, the silent partner is not a natural kin of Derek, the Sole Registered Proprietor and is also in no way related to him. But here the law applicable is different, as both the Registered Proprietors are brothers and the property in question, Rose Cottage, is owned jointly by them and there exists a valid and legal document to collaborate the fact. In this case, Charles and his partner Charmaine should not enter into an agreement only with Derek, as the agreement would be legally null and void.
(b) Advise Alice as to whether she can insist that the previous owner of Winsley Manor returns these items. Here the deal between two parties has been concluded and the issues of settlement have been settled between the two parties to the mutual satisfaction of both. The point of dissatisfaction raised by the buyer concerns certain fixtures, which she thinks have been removed after the settlement and conclusion of the deal. The facts stated are clear on the issue that there did not exist any record of the fixtures nor was there any understanding to this effect between the parties.
The contract for sale is also silent on the issue and makes no mention of the fixtures. The buyer in this case has to first ascertain certain facts and situations before taking any type of action against the seller. 1. The buyer has to clearly establish the fact, with concluding evidence that the fixtures existed at the time of settlement of the contract between both the parties. 2. The buyer has to clearly state the number of fixtures to which she is staking her claim and if possible give description of the fixtures. 3.
The buyer has to define the nature of the fixtures, whether they were fixed on some kind of pedestals or were rooted into the ground or were simply placed on the ground or any constructed area inside the premises which she has bought. 4. The buyer should also make it clear whether the fixtures were in any way mentioned by the seller as intended to be removed by him. The contract of sale with respect to the property that has been entered into by the buyer and seller is governed by the Law of Contracts relating to properties or real estate, as is commonly known in the business circles.
This law clearly states that such a contract should be between two adult residents and should be enforceable by law of the land. It should be put on paper and should be notified to the concerned agencies and departments of the government. The terms and conditions of transfer of rights concerning the property should be clearly mentioned in the contract document. It is very essential that the contract has a consideration clause it should have a closing date and a date specifying the handing over of possession to the buyer.
At the time of finalizing of the sale between the two parties, i. e. the seller and the buyer, the condition in which the property has to be handed over should be clearly mentioned. Some properties are handed over in 'as is Where is' basis, but such properties are meant to be demolished, hence this clause. Flats, built-up homes and condominiums are sold with a clause of pre-inspection before actual possession is handed over to the buyer. The question being answered here concerns to a built-up house, whose owner is selling it on the condition of 'as is Where is'.
Under this condition, whatever is the condition of the house and whatever has been installed, build, annexed and provided for in the house goes to the buyer in 'As is Where is' condition. There are generally no conditions or pre-inspection clauses in such sales, hence the buyer has no need of making an inventory of the fixtures affixed in the house. In certain cases, as has happened in this sale, the seller may take advantage of this situation and may remove some fixtures after the conclusion of the sale.
That is why, in the beginning of this essay it has been pointed out that it is for the buyer to keep track of such things when finalizing the contract of sale. The contract of sale in question here, may not have mentioned about the fixtures and the buyer may not be in a position to answer the questions raised at the start of the essay, but the buyer can definitely stake her claim to the fixtures and it is a moral, ethical and legal binding on the part of the seller to hand over the fixtures that the buyer is so definite about.