LAND LAW

Land Law

Land Law

Introduction

The utility of critical legal studies to legal theorizing on the nature or property in land is derived from six principles emerging from Unger's address. First (not in a lexical order), Is the principle of indeterminacy: that authoritative legal materials such as statutes, cases and legal ideas do not embody and sustain a defensible scheme of human association that whereas legal liberalism presupposes impersonal purposes, Policies and principles founded on a moral and practical order, the legal materials themselves are the reflex of the foundational politics which is responsible for choosing the social type. That is market economy. Second, is the Principle of contradiction which rejects the view that legal doctrine or legal analysis contains a single coherent and justifiable view of human relations. For Unger, our society is shot through with irreconcilable ideological commitments. A critical analysis of the law or property in land reveals principles and counter-principles. On the one hand, the first principle is the right to enter or refuse to enter into a contract: in short, freedom or contract (Welstead, 1995, 62).

The maxims of equity can be described as a set of principles or guidelines for the exercise of judicial discretion. The maxims display the strengths of equity as a responsive set of values, which can take into account the parties conduct more than the common law. There is no definitive list of maxims of equity, and the maxims are only applied when the court feels it is appropriate. The origins of equity lie in the deficiencies of the common law, in that equity looks to fill some of the gaps not covered by the common law, and works alongside the common law, providing alternative solutions to the legal problems presented. Although equity developed a body of principles it did not acquire the rigidity of the common law. An equitable remedy is available at the discretion of the judge, and the judge is assisted in the exercise of this discretion by these principles.

Case Analysis

The functions of equity were discussed in Inwards v Baker [1965) 3 WLR 126. In Inwards v Baker, the defendant was encouraged by his father to build his house on the latter's property (Baker, 1966, 21). So encouraged, the defendant built his house there and went into occupation and lived there continuously in the expectation and belief that he would be allowed to remain there for his lifetime or for so long as he wished. He lived there for a number of years. His father died, and about 12 years later, the personal representatives of the father's estate took proceedings against him to recover possession of the property (Burn, 1994, 6). The Court of Appeal held that he had equity to stay in that house as long as he wished it to remain his home.

When the Court of Appeal discussed this case discussed they decided that this maxim should be applied depending on whether or not it would be an affront to the public conscience to allow the plaintiff to ...