1 - What is Land

Question 1

What is real action or action in rem?

Answer 1

Where an owner of real property (freehold land) attempts to reclaim land they were dispossessed of at court?

Question 2

What is action in personam?

Answer 2

Action for damages in relation to personal property. (Personal property cannot be recovered)

Question 3

What is chattels real?

Answer 3

Leasehold property

Question 4

What is chattels personal?

Answer 4

“Choses in possession” (tangible items) and “choses in action” (intangible property, such as IP, shares and debts)

Question 5

In which two ways can property be transferred?

Answer 5

Contract or gift

Question 6

Describe “subject to contract”

Answer 6

An informal agreement of terms between the parties which is not yet binding, allowing parties to withdraw or amend terms

Question 7

Describe exchange of contracts

Answer 7

Once buyer and seller have received the contract signed by each other and it becomes binding. The terms are fixed and if either side defaults, action can be taken against them. Buyer holds an interest in the land (but not full property rights)

Question 8

Describe completion

Answer 8

Property is transferred by deed (under s52 LPA 1925). Buyer takes possession after paying purchase price.

Question 9

What are the two common law presumptions defining land?

Answer 9

“He who owns the land owns everything extending to the heavens and the depths of the earth” and “whatever is attached to the ground becomes part of it”

Question 10

What section of LPA 1925 defines land?

Answer 10

S205(1)(ix)

Question 11

What are corporeal hereditaments?

Answer 11

Tangible rights associated with the land

Question 12

What are incorporeal hereditaments?

Answer 12

Intangible rights associated with the land (such as easements)

Question 13

What are fixtures?

Answer 13

Fixtures are attached objects, they will pass as part of a transaction unless a seller clearly states they are not intended to pass

Question 14

What are fittings?

Answer 14

Fittings (chattels) are non attached objects, they will not automatically pass unless stated otherwise.

Question 15

Describe the degree of attachment test when deciding if an object is a fixture or fitting and give the case law.

Answer 15

If an object is attached to the land other than by its own weight, it is more likely a fixture. Holland v Hodgson (test alone is inconclusive as curtains and paintings could be part of the land)

Question 16

Describe the purpose of attachment test when deciding if an object is a fixture or fitting and give the case law.

Answer 16

Objects attached for their own benefit are fittings, object attached for the benefit of the land as a whole are fixtures, Leigh v Taylor

Question 17

Describe the permanence of attachment test when deciding if an object is a fixture or fitting and give the case law.

Answer 17

The longer the object is likely to be attached, the more likely it is to be considered a fixture, Botham v TSB Bank plc

Question 18

What case law states that infringing on airspace (such as overhanging guttering or billboards) is trespass to the land?

Answer 18

Kelsen v Imperial Tobacco Ltd

Question 19

What is the correction to the rule that ownership of land ‘extends to the heavens’ from Bernstein v Skyviews Ltd

Answer 19

Owner has rights only to a height necessary for ordinary use and enjoyment of their land

Question 20

What are the three remedies for trespass to land?

Answer 20

1 - damages (if actual damage has occurred)
2 - injunction (preventing intrusion)
3 - self help (e.g. cutting overhanging branches)

Question 21

What five main things does ‘land’ include?

Answer 21

earth / airspace / fixtures within the land / minerals in or on the land / ground below

Question 22

What is tenure?

Answer 22

The method of holding the land, freehold or leasehold.

Question 23

Define freehold and give alternate name under s1(1) LPA 1925

Answer 23

Holding land free of any service or payment to the Crown. Fee simple absolute in possession.

Question 24

Define leasehold and give alternate name under s1(1) LPA 1925

Answer 24

Holding land for a definite period or fixed maximum duration. Term of years absolute.

Question 25

What is a fee simple, and thus what is a fee simple absolute

Answer 25

Fee simple is an estate passing to heirs on death (fee - land capable of being inherited, simple - no limitation on who can inherit such as male or female etc.). Fee simple absolute means not subject to limitations bringing premature end to the estate

Question 26

What does it mean if an estate exists ‘in possession’

Answer 26

That a holder has the immediate right to possession (rather than upon reaching x age etc.). This includes right to receive rent, so a landlord holds even though tenant is in actual possession.

Question 27

How is an estate created?

Answer 27

By deed, under s52 LPA 1925

Question 28

Within what time limit must a lease granted in future come into effect, under what section of LPA 1925

Answer 28

Must come into effect within 21 years, under s149(3) LPA 1925

Question 29

How should a lease be created and what is the exception to this?

Answer 29

By deed. Exception is a lease taking effect in possession (immediately) for 3 years or less at market rent, which may be granted orally or in writing.

Question 30

List the 5 legal interests under s1(2) LPA 1925

Answer 30

1 - Legal easements and profits
2 - Legal rentcharge
3 - Charge by way of legal mortgage
4 - Certain charges arising under statute
5 - Rights of entry in legal leases and legal rentcharges

Question 31

What are legal easements and profits and how are they created as a legal interest?

Answer 31

Easements are rights over neighbouring areas of land. Profits are rights to take something from another’s land. Must be equivalent to legal estate and created by deed to be legal.

Question 32

What is a legal rentcharge and how does it become a legal interest?

Answer 32

The right to a periodic payment of money attached to land where a third party collects money from the owner of the land. Must be perpetual or granted for a term of years absolute by deed to contribute towards a legal interest.

Question 33

What is a charge by way of legal mortgage and how is it created as a legal interest?

Answer 33

It gives the mortgagee a right to repossess the land if the mortgage is not repaid. It must be by deed and expressed by way of legal mortgage.

Question 34

What are equitable interests and how must they be created under s53(1) LPA 1925?

Answer 34

Equitable interests are those which do not qualify as legal estate or legal interest and can be held by someone of any age. They must be created in writing (some exceptions, including implied trusts)

Question 35

Give four examples of equitable interests.

Answer 35

1 - trusts
2 - interests which don’t comply with required formalities
3 - estate contracts arising post exchange
4 - benefit of restrictive covenants

Question 36

What is the key difference between who is bound by legal estates and interests, and equitable interests?

Answer 36

Legal estates and interests ‘bind the world’ - the buyer is bound even if unaware of existence, whereas equitable interests are usually only binding if notice is given