3rd party rights and interests

Question 1

Freehold - definition

Answer 1

Having permanent ownership of the land

Question 2

Leasehold - definition

Answer 2

Limited duration. Tenant must have exclusive possession of the property for a fixed and certain duration.

Question 3

Legal mortgage - Definition

Answer 3

An interest in land given as security for a loan

Question 4

Easement - Definition

Answer 4

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.

Question 5

Prescriptive easement - Definition

Answer 5

The very nature of a prescriptive easement is that it is not created by way of an express agreement between the parties

Question 6

Trust of land - Definition

Answer 6

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

Question 7

Resulting trust - Definition

Answer 7

When someone pays part of the purchase price but their name isn’t on the title

Question 8

Covenants - Definition

Answer 8

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.

Question 9

Estate contract - Definition

Answer 9

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

Question 10

Right to occupy - Definition

Answer 10

Usually a spouse who’s not on the register as someone who owns the house but they live in it

Question 11

Licence - Definition

Answer 11

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.

Question 12

Is the right capable of being legal? - Legal interest

Answer 12

Have to ask if the right fall within S. 1(1) and S. 1(2).

Question 13

Is the right capable of being legal? - Legal interest - S. 1(1)

Answer 13

S. 1(1)(a) - freehold
S.1(1)(b) - Leasehold

Question 14

Is the right capable of being legal? - Legal interest - S. 1(2)

Answer 14

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

Question 15

Is the right capable of being legal? - Equitable interest

Answer 15

All other estates, interests and charges in or over the land. E.g rights of beneficiaries under a trust, restrictive covenants and estate contracts

Question 16

Is the right capable of being legal? - Statutory interests

Answer 16

S. 30. Right of occupation.

Question 17

Formalities - Legal interests - General rule

Answer 17

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.

Question 18

Formalities - Legal interests - General rule - Requirements for a valid deed

Answer 18

1) Makes it clear it is intended to be a deed
2) Signed in the presence of a witness

Question 19

Formalities - Legal interests - Exceptions

Answer 19

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

Question 20

Formalities - Equitable interests - General equitable interests

Answer 20

Where no trust is involved and isn’t an estate contract. The interest must be created by signed writing.

Question 21

Formalities - Equitable interests - Trusts - Express trusts

Answer 21

Express trusts - the declaration of trust must be evidenced in writing and must be signed.

Question 22

Formalities - Equitable interests - Trusts - Implied trusts

Answer 22

Arises automatically as a result of the property owner’s actions

Question 23

Formalities - Equitable interests - Estate contracts

Answer 23

Must be in writing, with all terms and signed.

Question 24

Formalities - Statutory interest

Answer 24

1) Legally married
2) Home needs to be the matrimonial home