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Dissenting beneficiary.

Land, Registered Land, Planning law etc.

Re: Dissenting beneficiary.

Postby Hairyloon » Thu Jul 27, 2017 11:44 am

Hairyloon wrote:The right dies with the other party, which might be soon, or it might be another 20+ years. At present, it seems they have a consensus to wait, but meantime, the house is falling into ruin, and that is the problem I am trying to address.


Or perhaps not. He has written to say that he's leaving money with solicitors with instruction to continue pursuit of the case...
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Re: Dissenting beneficiary.

Postby atticus » Thu Jul 27, 2017 12:54 pm

Have there been any other developments in the last four and a half years?

Leaving things in abeyance that long does not give the message that your stated intentions are serious.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Jul 27, 2017 3:11 pm

atticus wrote:Have there been any other developments in the last four and a half years?


The other party has stirred and is frothing, but otherwise, no.

Leaving things in abeyance that long does not give the message that your stated intentions are serious.


I agree, but it is not my business to push. I just get the secondary stress from any fallout. It would still be a good idea, only that much harder now to implement.
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Re: Dissenting beneficiary.

Postby atticus » Thu Jul 27, 2017 3:17 pm

Mind you, it also seems odd if the executors have not sorted things out in that time.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Jul 27, 2017 7:35 pm

I believe they are of the opinion that it is sorted and the property is held by trust. It is particularly disheartening that I did tell them right at the beginning that they were ploughing headlong into a problem and it doesn't help at all being proved right. :(
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Re: Dissenting beneficiary.

Postby Hairyloon » Tue Sep 12, 2017 12:21 am

Hairyloon wrote:
theycantdothat wrote:Whether option or right of pre-emption, the first point to be made is that if it was granted back in 1972 there is a very strong possibility that the right is no longer enforceable. This is because the instrument will have been executed when the Perpetuities and Accumulations Act 1964 was in force. The Act provided that no such right could be enforced more than 21 years after it was granted.

Exactly that.
There is an argument (which I cannot at the moment recall) to why the Perpetuities and Accumulations Act does not apply. I was not at all convinced by that argument...

I am reminded: the argument runs (or rather ran) that the Perpetuities and Accumulations Act 9(2) refers to options and not to rights of pre-emption. The argument was never even remotely persuasive and I've just learned that it was put to rest in Taylor v Couch 2012.

The Court made a distinction between an "Option" and a "Pre-emption", stating that the latter is something that only arises if the seller made an active decision (in this case, to sell the Property), whereas the former does not an active decision. Therefore, the rights in the 1984 agreement had to be viewed on an individual basis. The planning permission rights were an "Option" as they required no active decision by the seller, whilst the first refusal on any sale was a "Pre-emption".

The defendant argued that the 1964 act only applied to "Options", and therefore the Pre-emption right was not covered by the 21 year limit in the 1964 act. However, he acknowledged that once crystallised, meaning once it was clear that a sale was being considered, the 21 year period, under the 1964 act, would begin to accrue from that point.

The Court ruled that the 1964 act was drafted to include Pre-emption rights as a sub-set of the overall category of "options". It held that this had to be the case, as s9(2) of the 1964 act contained an exception for Pre-emption rights for Local Authorities over land that had been, but was no longer used for religious purposes – such an exception only makes sense if Pre-emption rights are included under the overall heading of options. The Claimant’s argument would have rendered the exception meaningless, and could not therefore be correct.

(Summary by http://www.steeleslaw.co.uk/news/taylor-v-couch)
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Re: Dissenting beneficiary.

Postby Hairyloon » Wed Sep 13, 2017 4:43 pm

Hairyloon wrote:I am reminded: the argument runs (or rather ran) that the Perpetuities and Accumulations Act 9(2) refers to options and not to rights of pre-emption. The argument was never even remotely persuasive and I've just learned that it was put to rest in Taylor v Couch 2012.

But on the other hand: http://www.bailii.org/ew/cases/EWHC/Ch/2013/1378.html

That being the position in law independently of the 1964 Act, the question which arises is whether section 9(2) is to be understood as being confined to options as traditionally understood, namely any "disposition" (the expression used in the subsection) which from its inception gives rise to an interest in land and does not therefore sound only in contract (as does a right of pre-emption until it is converted into an option and thus into an equitable interest in the relevant land as Templeman LJ described in the above passage), or whether it extends further and reaches a right of pre-emption even if, at inception, the right does not give rise to any interest in the land?

The only reason for supposing that the subsection may have this wider effect is on account of its proviso making clear that the subsection is not to apply to the specified rights of pre-emption there referred to. The argument, and it has force, is that Parliament must have assumed that rights of pre-emption are within the scope of the subsection and for that reason felt it necessary to exclude certain such rights which it considered should not be caught by the subsection. According to Judge Hodge QC's judgment in Taylor v Couch it is because of the proviso, and only because of the proviso, that he came to the view that section 9(2) extends to rights of pre-emption. This, as I read his judgment (in particular his reference to a right of pre-emption as a "sub-class" of option), is not on the footing that a right of pre-emption gives rise to an interest in land (as I have mentioned, it is common ground given the current state of the law, that, until it is converted into an option, a right of pre-emption does not) but on the footing that, even though it does not have this effect, a right of pre-emption is nevertheless to be treated for the purposes of the subsection as if it did.

The difficulty which I have with this conclusion is that, aside from the wording of the proviso, it is not evident what the statutory purpose could have been for extending the scope of the rule against perpetuities to contracts of pre-emption which do not from their inception confer on the grantee of the right any interest in the land to which the right relates. The contrary case is that the proviso is explicable on the basis that Parliament assumed, and did so wrongly, that a right of pre-emption did give rise from its creation to an immediate interest in land...
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Re: Dissenting beneficiary.

Postby atticus » Wed Sep 13, 2017 5:47 pm

Read on to para 63 of Blackburne J's decision. That nails the point unless you want to take it to the Court of Appeal.

I would rate his analysis highly: as a QC Bill Blackburne was greatly respected as a property lawyer, and did excellent work for my clients in a couple of cases.
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Re: Dissenting beneficiary.

Postby Hairyloon » Wed Sep 13, 2017 7:21 pm

atticus wrote:Read on to para 63 of Blackburne J's decision. That nails the point unless you want to take it to the Court of Appeal...

I don't want to take it anywhere, but I would like to know the answer because it may affect some people that I know.

atticus wrote:I would rate his analysis highly: as a QC Bill Blackburne was greatly respected as a property lawyer, and did excellent work for my clients in a couple of cases.


It seems to me that the problem revolves around the difference between English and Legalise: "option" has a distinct meaning in Legalise relating to land law; it does not have such clear distinction in plain English.

Hodge's interpretation in Taylor v Couch is straightforward and in plain English: it lays out clearly what parliament intended when it set out the legislation. Blackburne's analysis amounts to saying that parliament messed up because they don't speak Legalise proper.

Furthermore, the analysis makes no sense in respect of a right of pre-emption: they are the right to an offer of first refusal. Either the offer is accepted or it is not: it would not remain hanging around to become void through perpetuity.
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Re: Dissenting beneficiary.

Postby atticus » Wed Sep 13, 2017 7:25 pm

You miss the point that the event giving rise to the pre-emption right may not happen for some time.

If you give me a right of first refusal if you wish to sell, I cannot exercise that right until such time as you wish to sell. As long as you do not have that wish, I cannot exercise that right.
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