1. Land Law Flashcards
In which court and with whom did equity begin?
In the Court of Chancery - the court of the Chancellor.
What is a writ?
An action in the royal courts.
Which two Acts merged the law and equitable courts fully?
The Judicature Acts 1873 and 1875 (JA 1873/1875) created the Supreme Court of Judicature.
What did s25 JA 1873 state as to whether common law or equity would prevail if there was a clash?
If there was a conflict between common law or equity, equity would prevail.
Distinguish between the terms “common law” and “equity”.
Common law: establishes general rules which provide certainty
Equity: acts as a check and balance of common law.
What does ‘Equity acts in personam’ mean?
Equity is used against a specific person, not a third party e.g. specific performance, contempt of court.
What does ‘Equity will not suffer a wrong to be without a remedy’ mean?
When common law will not provide justice, equity will.
What does ‘Equity follows the law’ mean?
Equity only intervenes where common law rules do not take an important circumstance into account. Otherwise, it follows the rules of common law.
What does ‘He who comes to equity must come with clean hands’ mean?
If a claimant who is seeking an equitable remedy have not themselves acted in good conscience, the remedy may be refused.
What does ‘Delay defeats equity’ mean?
If a claimant applies for an equitable remedy with a considerable delay, it may act as a defence for the defendant.
What does ‘He who seeks equity must do equity’ mean?
A claimant must have acted fairly in order to receive an equitable remedy.
What does ‘Equity is equality’ mean?
Equity presumes that everyone is equal and will split assets equally if they haven’t already been divided up.
What does ‘Equity sees as done that which ought to be done’ mean?
Unlike common law, equity can force performance in the case of non-compliance by the defendant.
What does ‘Equity looks to the substance and not the form’ mean?
This is where the language or form does not matter, it is the substance of what was intended that is taken into account. E.g. conversation had but no signatures.
What does ‘Equity will not assist a volunteer’ mean?
The equitable courts will not give remedies to someone who has not given value for what they received/got something for nothing, e.g. a recipient of a gift.
What does ‘Equity will not act in vain’ mean?
The equitable courts won’t interfere where it is pointless to do so, e.g. if the court can’t ensure that equitable remedies will be carried out.
What is specific performance?
An order to the party of a contract to perform their obligations under the contract.
What is an injunction?
An order to prevent a person from doing a particular act or thing (or requiring them to do something)
What is rescission?
The setting aside of a contract.
What is rectification?
The correction of a contract where the writing doesn’t represent what the parties to the contract had agreed.
What is an account?
Where an investigation takes place around sums due from one party to another.
What is the appointment of a receiver?
A person is appointed to preserve endangered property for its beneficiaries.
How is a Form A restriction used to protect equitable rights?
It is placed on the proprietorship register to show that there is a behind-the-scenes beneficial interest, which needs to be overreached in order to remove it from the land.
What is the purpose of overreaching?
To transfer a beneficial interest from the land to the sale proceeds, in order for the buyer to have vacated possession.
Does the law of England and Wales allow someone to own land absolutely?
No, you can only own rights to do things with, or on, your own land or with, or on, someone else’s land.
What is the doctrine of tenure?
It defined the quality of the landholding - either freehold or leasehold. It stems from the fact that the Crown owns all the land in England.
What is the doctrine of estates?
It defines the quantity of the landholding. It marks out the extent and duration of the rights over the land in question.
What are the three types of tenure?
Freehold, Leasehold or Commonhold
What is the difference between an estate in freehold and an estate in leasehold?
An estate in freehold is of indefinite duration.
An estate in leasehold is of fixed maximum duration.
What are the three types of freehold estate at common law?
The fee simple
The fee tail
The life estate
What is the fee simple?
‘Fee’ means the estate passes to one’s heirs on death. As the fee is ‘simple’ it means it passes to heirs generally.
What is the fee simple absolute?
‘Fee simple’ means it is passed to one’s heirs on death, generally.
Absolute means there is no (time or any other) limit upon the land other than there is a successor to the original fee simple holder who can take possession - it is not conditional or determinable.
This is equivalent to absolute ownership.
What is the fee tail?
A fee tail can only be inherited by specified descendants of the original grantee. This means it is less than a fee simple, which can be left to anyone.
Are fee tails still allowed?
No, estates in tail can no longer be created after 1 Jan 1997 according to Sch 1 Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996).
What will happen if someone tries to create a fee tail nowadays?
Any attempt at creating a fee tail will be deemed an absolute gift.
What is a life estate?
A life estate lasts only for the life of the grantee, known as the ‘tenant for life’. It then reverts to the grantor once they die.
What does ‘pur autre vie’ mean?
For the life of another.
The estate ‘pur autre vie’ will end upon the death of the measuring life, e.g. A property granted to A for so long as B shall live, ends when B dies.
What does an estate ‘in possession’ mean?‘
‘In possession’ = A for life. A has a life interest in possession (including rent/profits) until they die.
What does an estate ‘in remainder’ mean?
‘In remainder’ = A for life, remainder to B for life. Once A dies, B is entitled to ‘what remains’ after A dies.
What does an estate ‘in reversion’ mean?
‘In reversion = A for life, granted by G. A has a life interest in possession and G would retain a fee simple in reversion. Once A dies, the estate reverts to G because they have not disposed of the whole of their interest nor stated where the land is to go after A’s death.
Why is this the following grant not possible? A for life, remainder to B in fee simple, remainder (for any estate) to C.
Because there is no remainder of estate left to give to C - B has the remainder in fee simple, which means it will then go down through B’s descendants. The remainder to C is void.
Out of estates in possession, in remainder or in reversion, which interests can only exist as equitable interests?
Since 1925, interests in remainder or reversion can exist only as equitable interest.
Out of fee simple, modified or lesser fees, fees tail or life interests, which interests can only exist in equity?
Since 1925, modified or lesser fees, fees tail and life interests can exist only in equity and must take effect behind a strict settlement or a trust of land.
What is a strict settlement and can they be created now?
The purpose of a strict settlement was to create successive interests that kept land in the settler’s family. It has not been possible to create any new strict settlements since TLATA 1996.
What are words of limitation? Give an example.
An example of words of limitation would be ‘I grant my property to X for life’ will limit the grant to life. However, if the grant is not limited, the property will pass as fee simple, meaning the whole interest will pass to the grantee unless contrary intention appears in the conveyance.
Where in legislation does it state that a conveyance without any words of limitation shall transfer over the whole interest in land?
s60 LPA 1925
What is ‘real’ property?
Real property (realty) is property that is immovable, i.e. freehold land.
What is action taken against real property called?
Action taken for realty is called real action or action in rem (against the thing itself).
What is the difference between real action and personal action?
Real action is taken against the thing itself (action in rem), meaning anyone can take action against a property.
Personal action is taken against the person who had dispossessed the claimant rather than against the thing itself.
What is a hereditament?
A hereditament is real property passed to one’s heir on death.
What are chattels real?
Chattels real are leasehold properties. They used to be seen as personal property (hence chattels) but were then subject to real action/action in rem. In modern law, chattels real (leasehold) and realty (freehold) are treated basically the same way.
What are chattels personal and what are the two types?
Chattels personal are all personal property other than leasehold property. They can be broken down into choses in possession or choses in action.
What are choses in possession?
These are tangible objects, goods which have a physical existence and which are movable, for example, cars, furniture, books and clothes. Land is not a chose in possession.
What are choses in action?
These are intangible rights (but not relating to land, i.e. intellectual property) which do not have a physical existence and which can ultimately be realised only by a court action. Examples include debts, stocks and shares, patents, copyright and trademarks.
Distinguish between “personal” rights and “proprietary” rights.
Proprietary rights have the capacity to bind a buyer of the land, e.g. easements and leases.
Personal rights can only bind the person who gave the right, e.g. invite you over to dinner.
How is land defined under s205 Law of Property Act 1925?
Land of any tenure, mine, minerals, other corporeal and incorporeal hereditaments.
What is the difference between corporeal and incorporeal hereditaments?
Corporeal hereditaments are physical or tangible objects such as houses or garages.
Incorporeal hereditaments are intangible rights which a person may have over someone else’s land, for example an easement, profits a prendre or rentcharges.
What does cuius est solum eius est usque ad coelum et ad inferos mean?
He who owns the land owns everything extending to the heavens and to the depths of the earth.
What does quicquid plantatur solo, solo cedit mean?
Whatever is attached to the ground becomes a part of it.
The maxim ‘He who owns the land owns everything extending to the heavens and to the depths of the earth’ has some limitations. What are they? (Heavens)
Airspace (no action for trespass or nuisance at a reasonable height, depends on weather)
What are SUAs?
Small Unmanned Aircrafts, like drones.
Three categories, getting higher in risk: Open, Specific and Certified (most risky, same as a manned aircraft).
Open has three subcategories: flying over people (A1), flying close to people (A2) and flying far from people (A3).
The maxim ‘He who owns the land owns everything extending to the heavens and to the depths of the earth’ has some limitations. What are they? (Depths)
Annual crops (although natural products that don’t require labour can be included)
Mines & Minerals (coal, oil and natural gas is ruled by statute and gold/silver by the Crown)
Utility (statutory powers allow laying of pipes/tunnels)
Wild Animals (no owner, but landowner can hunt. Landowner owns dead ones)
Water (no owner, landowner can fish if not tidal, Water Resources Act 1991 - only some water can be taken/abstracted)
Who has the best title to an object found on a landowner’s land?
Objects found on the ground: The finder is entitled to possess the object against all except the rightful owner. =
- Rightful Owner,
- Finder,
- Landowner - UNLESS landowner has ‘control test’, i.e. putting up notices saying that lost property belongs to them.
Who has the best title to an object found buried in a landowner’s land?
Objects found buried in the ground: The landowner is entitled to possess the object against all except the rightful owner,. =
- Rightful Owner,
- Landowner,
- Finder.
This is because of the ‘heavens and depth of earth’ rule.
