This assignment accounts for 10% of the total mark for the paper.
Owen started the exclusive Grand View Lodge in Queenstown (the Lodge) as a successful commercial enterprise. At the bottom of the Lodge gardens is a standalone, elite self-contained unit, called “The Shed.” From the Shed there are spectacular views out to Lake Wakatipu and The Remarkables.
Owen sold the Lodge to Vernon some years ago. Owen made sure a clause was inserted in the sale agreement allowing him to occupy the Shed “board free” for the month of August of each calendar year, commencing from the date title passed. This right was stated to be “personal” to Owen for the duration of his life.
At the same time, the sale agreement recorded Owen had the right to store his boat at the Lodge and launch it onto the Lake. Owen wanted both these right reserved, even though in fact he kept his boat stored over the road on a property he still owned. The fact that the boat is actually stored on the property across the road is not recorded in the sale agreement.
In July 2015 Vernon entered into an agreement to sell the Lodge to Percy. The sale agreement does not refer either to Owen’s right to occupy the Shed, or Owen’s right to store and launch the boat.
Percy visited the property prior to taking title, and saw Owen launching his boat into the Lake. He struck up a chat with Owen, who advised him that he (Owen) had “title” rights to occupy the Shed for the month of August, and also “title” rights to launch his boat from Lodge land for so long as he lived. This surprised Percy, who immediately went to see his lawyer, Lucy, and asked her to look into the matter.
Lucy examined the issued certificate of title and told Percy that no such title rights existed. Lucy then made the agreement to purchase the property unconditional, by approving the title.
Prior to Percy paying for the land, Lucy received a letter from Owen’s lawyer, stating Owen had a lease “for life” to occupy the Shed for the month of August each year, and also an easement to store and launch his boat at the Lodge whenever he wanted to. Lucy ignored this letter as she was confident from her earlier investigations that Owen had no rights that would bind Percy as the new owner.
Title to the Lodge subsequently passed into the name of Percy.
It is now August 2015. Percy is now the registered owner of the land. Owen has arrived at the Lodge. He is claiming he has a right to occupy the Shed and launch his boat onto the Lake over the Lodge property.
Lucy seeks your legal advice.
a) What is the possible legal basis of Owen’s claim to use the Shed?
b) What is the possible legal basis of Owen’s claim to launch his boat?
c) In any event, has Percy taken title clear of any of these rights?
NOTE: in answering this above question it is accepted you may not have all the relevant information. Indicate what other issues would be necessary to give the required legal advice, and how such issues may affect your answer.
Marks will be awarded for structure, analysis, sound reasoning and clear conclusions. Marks may be deducted for excessive surplusage.
The New Zealand Law Style Guide should be adhered to.
a. Your assignment is to be no more than 2,000 words (including headings, references, citations and footnotes). You must indicate the total word length on the top right-hand corner of the front page of your assignment.
b. The assignment is due to be submitted by 12.00pm on 15 September 2015.
c. You are required to submit both a hard copy and an electronic copy of the assignment in accordance with the instructions set out in section 8.3 of the Study Guide.
d. You are referred to the rules relating to late submissions and applications for extensions applicable for undergraduate student assignments in the Law Students Handbook.