1 - What is Land Flashcards
What is real action or action in rem?
Where an owner of real property (freehold land) attempts to reclaim land they were dispossessed of at court?
What is action in personam?
Action for damages in relation to personal property. (Personal property cannot be recovered)
What is chattels real?
Leasehold property
What is chattels personal?
“Choses in possession” (tangible items) and “choses in action” (intangible property, such as IP, shares and debts)
In which two ways can property be transferred?
Contract or gift
Describe “subject to contract”
An informal agreement of terms between the parties which is not yet binding, allowing parties to withdraw or amend terms
Describe exchange of contracts
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)
Describe completion
Property is transferred by deed (under s52 LPA 1925). Buyer takes possession after paying purchase price.
What are the two common law presumptions defining land?
“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”
What section of LPA 1925 defines land?
S205(1)(ix)
What are corporeal hereditaments?
Tangible rights associated with the land
What are incorporeal hereditaments?
Intangible rights associated with the land (such as easements)
What are fixtures?
Fixtures are attached objects, they will pass as part of a transaction unless a seller clearly states they are not intended to pass
What are fittings?
Fittings (chattels) are non attached objects, they will not automatically pass unless stated otherwise.
Describe the degree of attachment test when deciding if an object is a fixture or fitting and give the case law.
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)
Describe the purpose of attachment test when deciding if an object is a fixture or fitting and give the case law.
Objects attached for their own benefit are fittings, object attached for the benefit of the land as a whole are fixtures, Leigh v Taylor
Describe the permanence of attachment test when deciding if an object is a fixture or fitting and give the case law.
The longer the object is likely to be attached, the more likely it is to be considered a fixture, Botham v TSB Bank plc
What case law states that infringing on airspace (such as overhanging guttering or billboards) is trespass to the land?
Kelsen v Imperial Tobacco Ltd
What is the correction to the rule that ownership of land ‘extends to the heavens’ from Bernstein v Skyviews Ltd
Owner has rights only to a height necessary for ordinary use and enjoyment of their land
What are the three remedies for trespass to land?
1 - damages (if actual damage has occurred)
2 - injunction (preventing intrusion)
3 - self help (e.g. cutting overhanging branches)
What five main things does ‘land’ include?
earth / airspace / fixtures within the land / minerals in or on the land / ground below
What is tenure?
The method of holding the land, freehold or leasehold.
Define freehold and give alternate name under s1(1) LPA 1925
Holding land free of any service or payment to the Crown. Fee simple absolute in possession.
Define leasehold and give alternate name under s1(1) LPA 1925
Holding land for a definite period or fixed maximum duration. Term of years absolute.
What is a fee simple, and thus what is a fee simple absolute
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
What does it mean if an estate exists ‘in possession’
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.
How is an estate created?
By deed, under s52 LPA 1925
Within what time limit must a lease granted in future come into effect, under what section of LPA 1925
Must come into effect within 21 years, under s149(3) LPA 1925
How should a lease be created and what is the exception to this?
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.
List the 5 legal interests under s1(2) LPA 1925
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
What are legal easements and profits and how are they created as a legal interest?
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.
What is a legal rentcharge and how does it become a legal interest?
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.
What is a charge by way of legal mortgage and how is it created as a legal interest?
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.
What are equitable interests and how must they be created under s53(1) LPA 1925?
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)
Give four examples of equitable interests.
1 - trusts
2 - interests which don’t comply with required formalities
3 - estate contracts arising post exchange
4 - benefit of restrictive covenants
What is the key difference between who is bound by legal estates and interests, and equitable interests?
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
