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Title: Aspects of the law of real property in England and Wales : a Welshman's perspective
Author: Owen, John Gwilym
Awarding Body: Bangor University
Current Institution: Bangor University
Date of Award: 2017
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This critical analysis is based upon the author’s published research tracing the development of certain aspects of the law of real property in England and Wales, especially in relation to trusts. The overarching theme which underpins the author’s body of research, which will be discussed in this analysis, is the development of aspects of the English law concept of uses (the precursor of the modern trust) and the way in which uses were, (and subsequently the method by which trusts are), overreached; together with the author’s proposals for reform of the modern doctrine of overreaching. As will be seen from the author’s range of publications, the author has: (a) considered the above topics in their full historical context, and in so doing his published work spans across four subsidiary themes; and (b) wherever possible, the author’s body of work analyses these themes from a Welsh perspective. The author’s interest in the concept of overreaching goes back to his days as a practitioner. As a practitioner, it always intrigued the author as to why there had to be two as opposed to one trustee for overreaching to work. Boland was decided in 1981, the year in which the author qualified as a solicitor, and Flegg was decided only a few years later in 1988, when the author was still a young solicitor. These important cases were therefore decided during the author’s formative years as a lawyer, and it has been useful to reflect on these cases from an academic perspective several years later, and also to include some Welsh historical perspective as part of that process of reflection. Before summarising the four sub-themes below, the author’s published works will demonstrate that the Tudor Acts of Union 1536-43 did not wholly displace Welsh law and that Welsh stratagems continued to be deployed to offset the rigours of the English common law concept of primogeniture, by reference to the fact that some post-Union settlement patterns tended to mimic some of the norms of the native Welsh property laws. On the English side, the author considers that the two-trustee rule (as now applied in the modern concept of overreaching) is, by reference to the author’s historical analysis, anachronistic, and reform proposals are made which call for the registration of trusts in the context of registered land transactions. Further, in the context of the operation of overreaching in breach of trust situations in registered land transactions, the author considers that it would be more appropriate to approach this type of transaction from the imposition of in personam liability, rather than analysing such transactions from the perspective of not allowing a statute to be used as an instrument of fraud
Supervisor: Cahill, Dermot Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Legal History ; Land Registration ; Over-reaching ; Proprietary Estoppel