10 FLK2 Flashcards
What kind of trust is established when you do something illegal?
Constructive trust
Resulting trust = failed trust
What do you need for conspiracy?
Agreement to commit the crime
It doesn’t matter if committing the crime is impossible/ they did not do anything more than just agree
It needs 2 or more persons (not spouses)
Intestacy rules vs statuatory trust - who gets the benefits?
Intestacy rules - spouse/ civil partner + child
statutory trust - children & grandchildren (no s/o)
How do you decide where an either way case will be tried?
Presumption is summarily
Unless, Mag sentencing powers are clearly inadequate/ matter is unusually complex (nothing to do w aggravating factors)
For a short term lease to be considered a legal lease, what do you need?
Min. oral agreement
Term under 3 years
Takes effect (occupancy) immediately
Rent w/o premium (market rent)
If it fails the above, it becomes an equitable lease
How is SDLT calculated for an assignee?
Assessed on any premium paid for their assignment
Meaning of the following sections when trying to admit evidence:
- important explanatory evidence
- relevant issue between P and D
- to explain something about who the D is or their background (Eg P can identify D cus D supplies P with drugs even tho the present charge is not related to drugs)
- should be relevant to the core issues between P and D concerning the present charge itself
What does “a solicitor cannot be his own client” mean?
it means that if a solicitor is instructing his own firm for a matter, then money paid to the firm is called “firm money” not “client money”
thus the entries are recorded in a partnership ledger or business ledger
Do you pay IHT on a transfer to a alive spouse?
No
It is an exempt estate
Who makes a trust?
Who makes a will?
Settlor
Testator
When a person makes a trust, who can obtain immediate income from the trust?
Assumptions:
- Bs have a contingent interest
- Vesting condition for gift is 25 years
- Settlor is the grandparent of B1 and B2
- B1 is 15, lives in a different country
- B2 is 20, lives w settlor
Generally - when there is a contingent interest, B is only entitled to IMMEDIATE INCOME it once the contingency is met and thus the interest is vested
Exception - If the trust is created by a parent or loco parentis (ie someone acting like a parent) , then B can claim immediate income BEFORE meeting that contingency
B1 has to wait until they turn 25 as settlor is not a loco parentis (general rule applies)
But, since B2 lives with settlor, settlor can be considered a loco parentis and B2 will be entitled to immediate income before they turn 25 (exception applies)
Unreg land
Does the lender of an unregistered mortgage (ie charge not registered) have the power of sale?
Yes, as long as the mortgage is made by deed (no court order required)
Unregistered mortgage = equitable mortgage
Non-defendants incl. victim
When can you (D) admit their bad character evidence and do you need the permission of the court?
Only if it has substantive probative value in the context of the case
Yes you need the court’s permission
Note: if all parties agree, then court permission is not required
How can a B disclaim the gifts they have been given under a will?
Orally or in writing to PR
B can disclaim 1 or more gifts at the outset only. They cannot disclaim once they start receiving any benefits of their gift/ accept part or whole of the estate.
Wills
What happens when a gift lapses because there are no Bs?
Goes to settlor’s residuary estate, then it is passed acc to a will and/or intestacy
Crown Court
When should you give a defence statement?
28 days from receiving initial disclosure from P
Else, court MAY draw an adverse inference
LL cov
What does derogation from grant mean? Is it an implied or express cov?
What does cov of quiet enjoyment mean?
Its an implied cov
It is when LL does something that interferes with T’s use and enjoyment of the property (eg LL starting construction in adjoining prop which results in dust and noise disturbance to T)
Physical interference to T’s prop or direct obstruction of access to T’s prop -
How to calculate CGT?
Value of house @ death - sale price = gain
gain - any exemptions (6K for B and PR & 3K for trustees) = CGT amt that is taxable
CGT tax =
If lower rate - 10%
Higher rate - 20%
MR intention for Murder
direct intention to kill or oblique intention
Based on Woollin, Oblique intention = Death or serious injury is a virtually certain consequence and D FORESEES the consequences (as above) of his actions
Are trustees obligated to act in good faith? what does that include?
yes
they should not act capriciously (ie should not discriminate)
If they do, B has a valid claim against T for any loss suffered
If you are acting for the principal in a house transaction and he gives you a deposit, how is the money held? How is the mortgage advance from the seller held?
Principal’s deposit = firm money
Seller’s advance = client money
What is the main requirement under Wheeldon V Burrows?
Its an implied easement
Main rule: right must be “continuous and apparent” ie it must be visible and in regular use at the time of the grant
This right should be necessary for the reasonable enjoyment of the property
Note: it doesn’t matter if the estate is held legally or equitably
It doesn’t matter if the transfer of land is a sale/ lease/ gift
Under LTA, when will the tenancy come to an end?
Tenancy does not end on the date mentioned on the lease!!! The benefit of the LTA is that tenancy continues indefinitely until either party terminates in accordance with LTA.
Who serves S.26 notice?
What about S.27?
What about S.25?
T serves, to bring tenancy to an end (if they WANT to renew it)
T serves, to bring tenancy to an end (if they DONT want to renew it)
LL serves to bring tenancy to an end (6 - 12m before expiry of lease)
Who is a hostile witness?
What can P do if their witness is hostile?
Uncooperative witness/ someone who cant recall events despite attempts to refresh their memory
Note: P CANNOT ask leading Qs or give prompts to the witness
instead, P can cross-examine a hostile witness on the inconsistencies of their statement/ testimony to challenge credibility (this is usually only reserved for opposing witness)
Who can enforce a charitable trust against the trustees?
AG on behalf of the disappointed B
NOT INDIVIDUAL B’s as charitable trusts don’t have Bs!
Reg land
A = was gifted the prop & registered the transfer
Prop = has an unregistered mortgage from previous owner which A does not know about
Can lender enforce the mortgage on A?
Yes
As A is not a BFP for value, the principle of priority registration does not apply to A
Generally = if A was a BFP for value, then she would take the property free of any prior unregistered interests (except overriding interests).
Note: the fact that the mortgage is by deed has no effect on its enforceability
Under LTA, how do you contract out of security of tenure (SOT)?
- LL must serve warning notice on T w copy of the lease saying SOT wont apply
- T must sign a declaration to that effect saying he understands & agrees
- Agreement to contract out must be set in the lease
- Certified copy of agreement to contract out must be annexed to the lease
Method 1 - if lease is completed 14 days or LESS from LL warning notice:
T must sign a statutory declaration witnessed by an independent sol/ commissioner of oaths
Method 2 - if lease is completed 14 days or MORE from LL warning notice:
T must sign a simple declaration saying the received the warning notice & understand the consequences
OG owner A to OG owner B: cov to prohibit making noise past 8pm to ensure peace and quiet
OG owner B sells to New owner C.
Can A enforce cov against C?
Yes, in equity (Tulk)
This restrictive cov runs with land ie benefits the land of the Dom
Thus, it is enforceable by A against successors of B’s title ie C
Shares
Purchase price: 10K
Value at death: 15K
Sold for 20K
What is the gain?
5K
Selling price - value at death
No CGT on death because death is not a disposal
We take 15k cus that is when PRs received the shares
When is SDLT paid?
When are the following forms used:
SDLT 1
SDLT 2
SDLT 3
SDLT 4
SDLT 5
SDLT must be paid within 14 days of completion/ substantial completion (whichever is earlier)
SDLT 1 - to notify HMRC of transaction
SDLT 2 - 2 or more buyers/ sellers
SDLT 3 - more than 1 property
SDLT 4 - complicated leases, commercial or res. transactions
SDLT 5 - this is what HMRC gives the buyer once they pay
What is profit a prendre?
R to take something from the land eg minerals or timber
Causation in criminal law
Factual causation - but for test
Legal causation - substantial and operating cause
A commercial building owner wants to reserve his right to light and stop another builder from building a building. Does the commercial building owner have an implied right to light?
No
He must reserve this right explicitly in order to claim it
Can Wheeldon be used for an implied reservation over land?
No (except for necessity)
It is only used for implied GRANT of easement
Can you make a will leaving money for the maintenance of a statue?
Yes
It is a valid trust
But the amount left $$ should NOT be excessive
Re Endacott
Can Mag Court suspend a sentence?
How long can they suspend it for? ie operational period
Yes
6m - 4y, provide the custodial sentence is between 14 days and 6 months (or 14 days and 2 years for Crown Court)
If a buyer is buying a property from a mortgagee under a power of sale, what does the buyer have to make sure?
1) power of sale exists
2) power of sale has arisen
they dont have to check if the power of sale has become exercisable
note: power of sale automatically discharges the mortgage and sells the prop free from all subsequent mortgages, but not free from any mortgages that have priority
power of sale becomes exercisable if the mortgagor doesn’t repay for 3 months/ doesn’t pay interest for 2 months/ breaches mortgage deed
What is S20?
What is needed for the AR?
MR?
malicious wounding/ inflicting GBH
Break in the skin (both layers). Swelling or bruising is not enough.
D should intend/ reckless as to cause SOME harm
When do you die partially intestate?
When you have a valid will but no surviving B, thus the assets pass acc to intestacy
How should T apply to LL for consent to sublease or assign a lease?
Notice or application to LL seeking consent should be in accordance w notice provisions in the lease/ serve notice on LL personally/ leave it at LL’s last known place of business/ sent it to LL’s last known place of business via registered mail.
When do you die intestate?
When you have no will at all
or no valid will
What AR and MR do you need to be convicted of an attempt?
AR: more than preparatory action
MR: intent to commit the crime
Trust
When a class of Bs cannot be identified, what kind of issue arises? Eg Trust for the members of a neighbourhood
Conceptual uncertainty
For unlawful act manslaughter, does the MR have the be intentional or reckless?
Neither
You need to intent to commit an act (eg intended to punch someone), then that act results in death (eg the punch causes the person to die).
You do not have intend death or be reckless as to death occurring.
Who pays SDLT
When is it paid
Which country is it for
On what kind of property is it paid
Buyer
14 days from completion or substantial completion (which ever is earlier) to HMRC
This should be paid before registration of the transaction at HMLR
E & N.I (not wales!)
Residential & Commercial
Purchase of freehold, assignment of lease, grant of lease
Is robbery a grave crime?
How will a youth be heard for it?
Yes
Youth will be heard in Youth Court and committed to Crown Court for sentencing if necessary
When can unsolicited comments outside a formal interview be adduced in trial?
Acc to PACE Code C, the comment must be kept as a written record by the police + signed, dated and confirmed by D as correct
only then it can be adduced
Special measures for witnesses:
- visually recorded interview
- cross examination
- evidence in chief
- pre recorded or done via live link
Does the burden of a positive cov pass to the successor in equity?
No
Cus it is a positive cov (to spend money)
Under Tulk, only restrictive covs may pass
Signing/ acknowledging rules for:
- Testator
- Witness
- T must sign/ acknowledge in front of BOTH W
- W can sign/ acknowledge in front of T only (no need for the other W to be present)
Trustees duty to disclose information to B whose interest has not vested - what should/shouldn’t T provide b?
Even if B’s interest is not vested, T must give B:
(1) trust accounts
(2) trust docs (ie deed of appointment, B’s entitlement, how trust is managed, info where trust assets are managed)*
*depends
But, T is not required to give B any confidential info
How is a Charging Order recorded in the Register?
The Charging Order is an equitable charge over the person’s beneficial interest in the property
Restriction - Proprietorship Reg
