3rd party rights and interests Flashcards
Freehold - definition
Having permanent ownership of the land
Leasehold - definition
Limited duration. Tenant must have exclusive possession of the property for a fixed and certain duration.
Legal mortgage - Definition
An interest in land given as security for a loan
Easement - Definition
A right that is attached to one piece of land and imposes a corresponding burden on another piece of land. Easement must be granted forever or for a fixed duration. If it says for the rest of their life it is not forever.
Prescriptive easement - Definition
The very nature of a prescriptive easement is that it is not created by way of an express agreement between the parties
Trust of land - Definition
Legal estate is held by the trustee and the equitable interest is held by the beneficiary. An implied trust arises automatically as a result of the property owner’s actions. E.g where on party makes a financial contribution to the purchase of property, which is not a gift or a loan, but that party is not named as a legal owner
Resulting trust - Definition
When someone pays part of the purchase price but their name isn’t on the title
Covenants - Definition
Promises made by one party in favour of the other party to do with the land. Restrictive covenant = not to use the land in a particular way.
Estate contract - Definition
Contract to create or convey a legal estate in the land. If the Q doesn’t mention a deed being signed it’s an estate contract. E.g An option to purchase land. An equitable lease, a contract for a sale of land
Right to occupy - Definition
Usually a spouse who’s not on the register as someone who owns the house but they live in it
Licence - Definition
Situations in which landowners whilst allowing persons to use their land in some way, do not intend to create any kind of proprietary interest in it.
Is the right capable of being legal? - Legal interest
Have to ask if the right fall within S. 1(1) and S. 1(2).
Is the right capable of being legal? - Legal interest - S. 1(1)
S. 1(1)(a) - freehold
S.1(1)(b) - Leasehold
Is the right capable of being legal? - Legal interest - S. 1(2)
S. 1(2)(a) - Easement either forever or an easement for a leasehold period
S. 1(2)(c) - A charge by way of legal mortgage
Is the right capable of being legal? - Equitable interest
All other estates, interests and charges in or over the land. E.g rights of beneficiaries under a trust, restrictive covenants and estate contracts
Is the right capable of being legal? - Statutory interests
S. 30. Right of occupation.
Formalities - Legal interests - General rule
A deed is required to create legal estates and interests in land. If it’s not created by deed it’s void and will be an equitable interest.
Formalities - Legal interests - General rule - Requirements for a valid deed
1) Makes it clear it is intended to be a deed
2) Signed in the presence of a witness
Formalities - Legal interests - Exceptions
Parol lease. Leases not exceeding 3 years. Requirements:
- The lease must take effect immediately in possession
- The lease must have been granted at the best rent which can be reasonably obtained without taking a fine.
Cannot be a lump sum at the beginning of the lease
Formalities - Equitable interests - General equitable interests
Where no trust is involved and isn’t an estate contract. The interest must be created by signed writing.
Formalities - Equitable interests - Trusts - Express trusts
Express trusts - the declaration of trust must be evidenced in writing and must be signed.
Formalities - Equitable interests - Trusts - Implied trusts
Arises automatically as a result of the property owner’s actions
Formalities - Equitable interests - Estate contracts
Must be in writing, with all terms and signed.
Formalities - Statutory interest
1) Legally married
2) Home needs to be the matrimonial home
