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Dissenting beneficiary.

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Re: Dissenting beneficiary.

Postby atticus » Thu Sep 14, 2017 9:14 pm

You could find the judgment itself.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Sep 14, 2017 10:15 pm

Actually I couldn't, which was a bit of a surprise. No end of references to it, but not the judgment itself... at least, not so far.
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Re: Dissenting beneficiary.

Postby atticus » Fri Sep 15, 2017 8:37 am

OK, we have it in our library - [1980] 1 All ER 294. 40 pages of it. Reading the headnote, the ratio is as described in everything so far said in this thread that refers to it.

The headnote says
a right of pre-emption, unlike an option to purchase, did not create an interest in land because it did not give the grantee a present right, or even a contingent right, to call for the conveyance of the legal estate. It created a mere spes* and could not become an interest in land until the condition on which it depended was satisfied (ie by the grantor offering the land to the grantee) and the right was converted to an option.
The headnote refers to passages in the judgments of Goff LJ at pp 304-305, 311, 313, Templeman LJ at 329 and Stephenson LJ 333. All these passages say that a right of pre-emption does not create an interest in land until the condition on which it depends is met.

So dls's case summary is accurate and reliable.

But if you want to find a book in a law library - vol 1 of the 1980 All England Law Reports or vol 1 of the 1980 Chancery Reports - and plough through all 40 pages, I am sure you will find it an enjoyable experience.

*I'm not sure precisely what this means, but 'spes' is latin for 'hope', and that makes sense.
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Re: Dissenting beneficiary.

Postby Hairyloon » Fri Sep 15, 2017 9:30 am

atticus wrote:While you look for a paper copy in a book, here is something for you to read:

http://www.cobden.co.uk/downloads/case_ ... _2013_.pdf

Thank you.
atticus wrote:OK, we have it in our library - [1980] 1 All ER 294. 40 pages of it. Reading the headnote, the ratio is as described in everything so far said in this thread that refers to it.

Thank you again.

The headnote says
a right of pre-emption, unlike an option to purchase, did not create an interest in land because it did not give the grantee a present right, or even a contingent right, to call for the conveyance of the legal estate. It created a mere spes* and could not become an interest in land until the condition on which it depended was satisfied (ie by the grantor offering the land to the grantee) and the right was converted to an option.
The headnote refers to passages in the judgments of Goff LJ at pp 304-305, 311, 313, Templeman LJ at 329 and Stephenson LJ 333. All these passages say that a right of pre-emption does not create an interest in land until the condition on which it depends is met.

So dls's case summary is accurate and reliable.


I did not intend to suggest otherwise. My point is that Pritchard was judged on a specific set of facts in a specific set of circumstances. Those specific circumstances have been taken to define a broad category and assumed to apply correctly to every instance that features anything in that category.
I do not doubt that that assumption has proven correct in many applications, but it is now passed down as doctrine and apparently beyond challenge.

From the article you provided earlier:
Cobden wrote:In Pritchard v Briggs [1980] Ch 388 the majority of the Court of Appeal (to a large part rejecting received wisdom) held that the second answer was correct and that a right of pre-emption did create an interest in land, but only from the triggering event. Before that event the right of pre-emption was not an interest in land and could not bind third parties. It will readily been seen that Pritchard v Briggs created a problem for 9(2), namely whether the 21 year period ran from the date of the instrument creating the right of preemption or from the triggering event.

It seems to me that the part I have highlighted is the question they were asked to decide upon: "Can this agreement bind a third party?" The answer is no, and for the reasons given... although I don't understand the leap from not being an interest to not binding a third party.
The question I have for you is of what bearing should the bindability of a third party have on the perpetuity period?
It appears to be an unforeseen consequence of an unrelated issue.

Turning back to parliament's intentions in the 1964 Act, you say they were not clear, but if Pritchard rejected the received wisdom to make the judgment and it was only that judgment that muddied the waters, then under the standing wisdom that Pritchard received, the statute would have been perfectly clear.

But if you want to find a book in a law library - vol 1 of the 1980 All England Law Reports or vol 1 of the 1980 Chancery Reports - and plough through all 40 pages, I am sure you will find it an enjoyable experience.


Conveniently, the lady affected is a librarian: I'll delegate that task. ;)
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Re: Dissenting beneficiary.

Postby atticus » Fri Sep 15, 2017 9:36 am

Hairyloon wrote:From the article you provided earlier:
Cobden wrote:In Pritchard v Briggs [1980] Ch 388 the majority of the Court of Appeal (to a large part rejecting received wisdom) held that the second answer was correct and that a right of pre-emption did create an interest in land, but only from the triggering event. Before that event the right of pre-emption was not an interest in land and could not bind third parties. It will readily been seen that Pritchard v Briggs created a problem for 9(2), namely whether the 21 year period ran from the date of the instrument creating the right of preemption or from the triggering event.

It seems to me that the part I have highlighted is the question they were asked to decide upon: "Can this agreement bind a third party?" The answer is no, and for the reasons given... although I don't understand the leap from not being an interest to not binding a third party.
.

Read the entire sentence that you have highlighted again: Before that event the right of pre-emption was not an interest in land and could not bind third parties. The answer to your question, I suggest, is yes, once the triggering event has occurred. You overlook "before that event".
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Re: Dissenting beneficiary.

Postby theycantdothat » Fri Sep 15, 2017 9:45 am

atticus wrote:*I'm not sure precisely what this means, but 'spes' is latin for 'hope', and that makes sense.


I think it is used to suggest there is only a possibility that a benefit will arise and that there is nothing the potential beneficiary can do to ensure he gets the benefit. Compare an option where the beneficiary can secure the property by exercising the option. Another example is a gift under a will. Subject to exceptions which need not detain us, a testator is free to change his will at any time before he dies. Compare an interest in remainder under a trust such as to A for life and then to B, where B has an interest which, so long as he outlives A, is secured.
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Re: Dissenting beneficiary.

Postby atticus » Fri Sep 15, 2017 9:50 am

Going back nearly 5 years:

Hairyloon wrote:The relevant section reads:
IN CONSIDERATION of the vendor executing such Conveyance to the purchasers the purchasers shall not sell or otherwise dispose of the property comprised in this agreement unless they shall have first offered the vendor the opportunity of re-purchasing the same in manner and on the terms hereafter following _____


I would look at the following questions. Maybe tcdt can help.

1. Does this prevent the executors vesting the property in question in the beneficiaries of the estate?

2. If not, It appears that the beneficiaries may, once the property is vested in them, not be bound by this (see above), and may therefore have a window of opportunity to sell the land.
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Re: Dissenting beneficiary.

Postby theycantdothat » Fri Sep 15, 2017 10:00 am

atticus wrote:Maybe tcdt can help.


Possibly. Is "purchasers" defined in the agreement? Is "vendor" defined?

Very important point: Is the right registered as a land charge at the Land Charges Registry?
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Re: Dissenting beneficiary.

Postby atticus » Fri Sep 15, 2017 10:04 am

(hairy should bear in mind the possibility that the other party may read this thread)
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Re: Dissenting beneficiary.

Postby Hairyloon » Fri Sep 15, 2017 10:14 am

atticus wrote:
Hairyloon wrote:From the article you provided earlier:
Cobden wrote:In Pritchard v Briggs [1980] Ch 388 the majority of the Court of Appeal (to a large part rejecting received wisdom) held that the second answer was correct and that a right of pre-emption did create an interest in land, but only from the triggering event. Before that event the right of pre-emption was not an interest in land and could not bind third parties. It will readily been seen that Pritchard v Briggs created a problem for 9(2), namely whether the 21 year period ran from the date of the instrument creating the right of preemption or from the triggering event.

It seems to me that the part I have highlighted is the question they were asked to decide upon: "Can this agreement bind a third party?" The answer is no, and for the reasons given... although I don't understand the leap from not being an interest to not binding a third party.
.

Read the entire sentence that you have highlighted again: Before that event the right of pre-emption was not an interest in land and could not bind third parties. The answer to your question, I suggest, is yes, once the triggering event has occurred. You overlook "before that event".


No, I think I have been unclear: you seem to be answering the question for the court and the answer there was no, because the trigger had not been triggered (in time?).
Or perhaps you were trying to answer the bit I didn't understand? Is it simply definitions: "an interest" is something that binds the party?

My question was:
The question I have for you is of what bearing should the bindability of a third party have on the perpetuity period?
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