The Roles and Responsibilities of the Institutional Triangle

]The rules and procedures that the institutions must follow are laid down in the treaties, which are agreed by the member states’ presidents and prime ministers and approved by their parliaments. The commission proposes new laws but the parliament and council adopt them. The European Council represents the Heads of States (Presidents / Prime Ministers), The European Council defines the general direction of the European Union. The primary function of the European Council is to give the general impetus and social, economic and political guidance. However, its guidelines ; declarations are not legally binding.

It also amends the existing treaties, makes changes to the institutions, signs new treaties and decides on the entry of new members. The European Court of Justice (ECJ) upholds the rule of European law. It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and application of the Treaties establishing the European Communities and of the provisions laid down by the competent Community institutions.

The European Council; The Council of the European Union (the Council of Ministers); – The European Parliament; – The European Commission; and – The European Court of Justice (ECJ). Also, give a very brief description of the changes introduced by the Lisbon Treaty which came into force on 1 December 2009. The European Council, which represents the Heads of States (Presidents/Prime Ministers); the primary function of the European Council is to give the general impetus and social, economic and political guidance. The Council of the European Union represents the individual Member States.

Some of the key responsibilities of the council of the European Union include: – The Council adopts Community legislation; in many fields it legislates jointly with the European Parliament; – It coordinates the broad economic policies of the Member States; – In the name of the European Community it concludes international agreements between the Community and one or more States or international organizations. The European Parliament represents the EU’s citizens and is directly elected by them. Parliament shares budgetary powers with the Council.

It adopts the budget, supervises its implementation, and grants a discharge in respect of that implementation. Parliament also takes part to varying degrees in drawing up Community legislative instruments (laws). The European Commission seeks to uphold the interests of the Union as a whole. The Commission consists of 27 members (one per Member State), chosen on the grounds of their general competence, whose independence is beyond doubt. The Commission is responsible for drawing up proposals for new legislative instruments which it forwards to the Parliament and the Council.

It also puts policies into effect and implements the budget of the European Union: the Commission is responsible for managing and carrying out the budget and puts into effect the policies and programmes adopted by Parliament and the Council. The European Court of Justice (ECJ) upholds the rule of European law. It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and application of the Treaties establishing the European Communities and of the provisions laid down by the competent Community institutions.

One change introduced by the Lisbon Treaty which came into force on 1 December 2009 is that for the first time it recognizes the possibility for a Member State to withdraw from the European Union (EU). Secondly it introduced the Common Foreign and Security Policy. Moreover it extended the collective capacity of the EU to act on ‘Freedom, Security and Justice’ in fighting crime (human trafficking; drugs; money laundering) and terrorism and for or the first time it created the most powerful post of the EU High Representative for Foreign and Security Policy. 27.

List the three most important legal instruments concerning Human Rights, and briefly describe the four articles of the Human Rights Act which are relied upon (invoked) in the Courts, in relation to planning permission, compulsory purchase order, landlord ; tenant, and urban regeneration. Please make reference to the relevant cases (case law or authorities) without describing them. (5 Marks) The three most important legal instruments concerning Human Rights are: – Universal Declaration of Human Rights (1948) – International Covenant on Civil and Political Rights – International Covenant on Economic, Social and Cultural Rights

The four articles of the Human Rights Act which are relied upon (invoked) in the Courts are; – Article 6 ;gt; Right to a fair trial. This is when everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security. – Article 8 ;gt; Right to respect for private and family life. Everyone has the right to respect private and family life, his/her home and his/her correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law. (For the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others) – Article 14 ;gt; Prohibition of discrimination. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin. – Protocol 1, Article 1 ;gt; Protection of property.

This is when every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Relevant cases include John Sole v Secretary of State for Trade ; Industry, and London Development Agency [2007] whereby Articles 1 and 8 were violated. A second case was the Dale Farm Travellers/Gypsies High Court Case (12 Oct 2011), whereby the Irish were being discriminated breaching article 14. 28.

Give a description of the following stages (steps) involved in the Formal acquisition of land: (i) The Pre-exchange stage; (ii) The Exchange to Completion stage; and (ii) The Post-completion stage. Also give a description of the roles ; responsibilities of the Land Registry, and the Registers/Documents which may be obtained (purchased) from the Land Registry. (15 marks) Pre-exchange stage is an initial stage which involves a buyer, seller and solicitor. A solicitor will exchange details on behalf of the buyer to the seller. A contract is drafted by the seller and two copies are sent to the buyer.

The seller will be required to show that he/she has the necessary land title which will be undertaken for the contract to transfer. The seller must produce an abstract of the title and send it to the buyer with reasonable time. In practice a list of relevant documents with photocopies are provided to the buyer. The buyer will search the local land charges register kept by the local authorities. If staff within the registers office give wrong information they buyer may take legal action against them for negligence. The buyer may send standard form for searching purposes in relation to matters not register able as local land charges.

This may include issues relating to planning and schemes for new roads. The buyer makes a variety of inquests to the seller by sending a standard form which may be customized by adding or deleting as appropriate. Regarding issues as easement and covenant of the land. If in any way the seller has any doubts over the abstract of the title the buyer will have a written requisition sent out to the seller who will respond within a reasonable period unless a time period is specified or there is a failure to respond by the seller the buyer has a right to cancel or to rescind the contract. i) At this stage once all matter is dealt with the money is transferred from the buyer to the seller. The sale is now completed and the keys are handed over to the buyer, who will be the official owner. At this stage the buyer will receive the keys on the agreed date, pay the seller the remainder of the property cost through the solicitor. The buyer will receive the legal documents as proof of ownership as well as pay the solicitor fees if not already done. In the Post completion stage, the buyer or more usually the solicitor will need to register the change the ownership with land registry.

Also payment of stamp duty and land tax will be made the buyer will need to tell the insurer of the completion of the sale. Land registry is a government department created to register ownership of land and property in England and Wales. Land registry facilitates reliable records of ownership and interest affecting land. It also provided owners with a title that is underpinned by the state as well as to simplify ownership transfer of interest in land.

The following documents can be purchased form the land registry, i. e. itle number property register, proprietorship register, charges register and title plans. Title number is a unique number assigned to a parcel of land registry upon first registration of title to that land. The title number usually comprises of two parts- alphabetic code (3 letters which signify the geographical area) and six digits and a sequence number which signifies geographical location of the land. Title plan will reveal the boundary of the land. This will give a strong indication of where property boundary lies though it’s not down to a degree of accuracy.

Property register describes the registration of document changes of ownership and transaction involving immoveable property. Whenever land property is purchased it would be necessary to register so as to guarantee legal ownership and also reduces risk of fraud disputes and maintains an up to date public record. Proprietorship register describes names and address of property which shows details of any notices and cautions which have been logged against one or more of the owners. It will show any restriction on the right to dispose of.

Charges register is a restriction or prohibition or financial charge imposed on land or property towards successive owner or occupiers of land and property. Details of any charges registered to land or property are listed in the council’s local land charges register. The local land charges are made available to potential buyers of land to be aware of any charges that may affect the property or piece of land they are interested in before purchasing it. 30. With references to at least 2 legal cases. Give a brief description of the following: (i) The main differences between a Lease and a License.

A covenant in a lease; and (iii) Examples of covenants in Residential and Commercial Leases. (5 marks) The main difference between a lease and a licence is that a licence is the permission of the owner to allow a lodger to stay on their premises without the need of a contract, with a licence the agreement is over when the owner asks the lodger to leave and they have no rights to remain on the premises after termination, whereas a lease is a contract and has a set duration of which must be fulfilled unless both parties agree to the termination of the contract.

Leases over 3years must be registered with land register but a licence is terminated whenever requested by the owner. Unless a tenant has exclusive possession there is no lease but a mere licence. This can be shown in the case Street v Mountford [1985], where Ms Wendy Mountford had concluded an agreement with the landlord for exclusive residential occupation (of furnished premises) for a fair rent, but the agreement was described as a personal license, not a lease. A second case where the difference between the two can be seen is Somma v Hazlehurst [1978]

Covenants in leases are “rules” put into the agreements of the lease they are enforceable by original parties and the assignees. They are mutual obligations and the parties are free to agree to any terms unless prohibited by law. They affect the control exercised over the use of the land and provide means to remedy for breaches. In the absence of covenants in a contract they are implied by common law and by statutes. Examples of covenants implied by common law are such that the tenant is to pay rent and accept rent review and pay taxes.

Residential covenants can be such like no alterations can be made (construction). Also things like the limitation of number of tenants or sublet premises. Simple things can also be included like no pets or not to play music loud after 10pm. Commercial covenants can contain such limitations like no subletting of lease. Also things like rent must be paid every month and is subject to annual review. Also it may contain things like no alterations to structure of building structure. Question on Tort: – Trespass to land – Occupiers liability to visitors Public nuisance – Private nuisance NEGLIGENCE 29. With reference to the relevant Case Law (previous cases decided by the Courts), give a brief description of the main elements which must be present for the formation of a legally binding agreement, ie, a Contract. (5 marks) Offer and Acceptance is the first two elements required to form a legally binding agreement. An offer is a definite promise to be bound, provided the terms of the offer are accepted. This means that there must be acceptance of precisely what has been offered.

A recent illustration is provided by the Court of Appeal in Bowerman v ABTA Ltd [1996]. In spite of this the old case of Payne v Cave [1789] establishes the principle that an offer may be withdrawn at any time up until it is accepted. Acceptance of an offer means unconditional agreement to all the terms of that offer. Acceptance will often be oral or in writing. Only what is offered can be accepted. This means that the offer must be accepted exactly as offered without conditions. I The next constituent required for the formation of a legally binding agreement is consideration.

In Dunlop v Selfridge [1915] the House of Lords explained consideration in terms of purchase and sale – the plaintiff must show that they have bought the defendants promise, by doing, giving or promising something in return for it. A valid contract requires some exchange of consideration. Consideration is very important because it signifies that the promisee will relinquish some legal right in the present giving an advantage to the seller. This can be shown in the case Roscorla v Thomas [1842] The final building block required for the formation of a legally binding agreement such as a contract is legal capacities.

A legal capacity is power provided under law to a natural person or a juridical person to enter into binding contracts, and to sue and be sued in its own name. 31. The following scenario concerns the law of Tort(s): (a) Mrs Smith, an elderly lady, lives in a small cottage with a large ; pretty garden, in a village in Hampshire. Her garden overlooks a football pitch, where children and young adults play football. Once or twice a week the ball lands in her garden damaging her roses, and occasionally breaking the glass windows.

Some of the players are also extremely noisy, and play late into the night, depriving, many neighbours of sleep, and the enjoyment ; use of their property. Mrs Smith is particularly affected, as her Cottage is adjacent (next) to the football ground. Mrs Smith had also noticed that the roots of the trees planted by the management of the football ground had damaged the foundation of her wall. Also, paint and solvents stored by the football club had leaked into her property, contaminating the soil beneath the shrubs and trees in her garden, resulting in damage to her plants.

With reference to case law and relevant legislation, discuss the different types (heads) of tort involved in the above scenario (setting). (6 marks) There are two types of tort which directly affect Mrs. Smith, public nuisance and private nuisance. Private nuisance can be accepted because there has been a continuous unlawful interference with the use and enjoyment of Mrs. Smith’s land. There is also proof of the damages as her windows have been broken and her plants have been damaged. Public nuisance can also be accepted as Mrs.

Smith and her neighbors are all losing sleep due to the late night shouting from the footballers. Which is “affecting the reasonable comfort and convenience of life of a class of her majesty’s subject”. Attorney general v PYA Quarries. In a court Mrs. Smith has relevant experience to proceed with a case and win concerning private nuisance. This is because the case of Miller v Jackson [1977] cricket was played on a pitch backing the plaintiff’s garden. Cricket balls continued to come into her garden braking plates.

The plaintiff went to court and was granted her compensation because it was seen as private nuisance given she couldn’t reasonably enjoy the use of her land. She could also win the case of public nuisance because a similar case of Halsey v Esso petroleum co ltd [19612], the plaintiff complained about the noise, fumes ; smut caused by the esso company. The judge ruled in the favour of the plaintiff and enforced and injunction for the noise caused and ruled for compensation for the damages caused by the smoke and smut.

On one occasion, one of the adult players climbs over the wall, in order to enter the garden and get the ball back. However, he loses his balance while climbing over the wall. He falls over a beautiful Chinese flower pot, breaking the pot, injuring his head, and damaging his expensive Macmaster United Shirt. With reference to case law and relevant legislation, briefly discuss as to whether Mrs Smith is liable for damage and injury to the player who had climbed over the wall. (4 marks) Mrs.

Smith will not be liable for the damages or injuries caused to the plaintiff because the plaintiff will be seen as a trespasser in the eyes of the law. This can be proven by the case of Ratcliff v McConnell [1999], where the plaintiff and two of his friends jumped into a college swimming pool, seriously injuring himself. The judge ruled that the plaintiff should have accepted the risk and that there was no liability on the part of the occupier (the college). Similarly in the case of Tomlinson v Congleton borough council [2003], an 18year old (young adult) dived into an artificial lake and injured himself.

The House of Lords reversed the decision of the court of appeal and ruled that no common duty of care was owed to Tomlinson, a trespasser. Given both these cases it would seem that Mrs. Smith would not be liable for the damages and injuries caused to the footballer as he was trespassing on her land and she had no intention of harming him by placing a flower pot near her wall, but it was merely there for her own comfort and enjoyment. (c) The owners of the property next door to Mrs Smith had decided to demolish the 2-story derelict building on their land, and build a new house.

They had instructed an Architect, a Surveyor, a Building Contractor, and a Demolition Contractor to jointly undertake the demolition of the existing building, and the construction of the new house. The demolition work was almost completed prior to the Easter break. However, the four (4) parties involved had decided not to demolish the side of the old building facing Mrs Smith’s property due to the Easter Holiday. Two days later, on a mild sunny day, the un-demolished parts collapsed injuring Mrs Smith who was attending to the garden. This resulted in injury to Mrs Smith and damage to the chimneys of her cottage.

Discuss as to whether any or all of the four (4) parties involved were negligent in deciding not to completely demolish the old building before the Easter Holiday. Your discussion should be supported with reference to the key elements which must be present in order to establish liability under the ‘tort of negligence’, and also relevant case law. Moreover, you need to show that the Architect, the Surveyor, the Building Contractor, and the Demolition Contractor owed a ‘duty of care’ to Mrs Smith. (5 marks) All four parties involved with the injury and damaged caused to Mrs.

Smith’s house are liable for it. This is because combined they all decided not to demolish the remaining wall which in turn lead to the injuries caused. As each individual contractor on the site owed a duty of care to the owners land and to their neighbors (Mrs. Smith) they are liable to the injury. Given that all elements of the tort of negligence were met they are liable. The defendant owed a duty of care as professionals they should have carried out the adequate risk assessments to ensure it was safe to leave it for the Easter holidays.

There was a breach in the duty of care as they left the wall in place which was unstable. The breach in duty of care leads to the damage of the property and injury of the plaintiff. The damage was also foreseeable if a proper safety assessment was carried out on the wall before leaving it. This can be proven with the case of Clay v A J Crump ; sons ltd [1963] where a wall collapsed on a group of builders camping under it. All parties including the architect, demolition contractors and building contractors where found jointly and severally liable for the negligence caused.