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Authorities Flashcards

1
Q

Fixtures and Chattels > Steps

A

Step 1: State ‘if contract is silent on what is included in the sale, one must classify objects as either fixtures or chattels.’
Step 2: Define Fixture or Chattel
Step 3: Apply two tests to determine if fixture or chattel
Step 4: Cases where objects were categorised as fixtures or chattels

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2
Q

Fixtures and Chattels > 1. State

A

‘if contract is silent on what is included in the sale, one must classify objects as either fixtures or chattels.’

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3
Q

Fixtures and Chattels > 2. Define Fixture

A

Form a part of land  must remain with the land when the land is sold on

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4
Q

Fixtures and Chattels > 2. Define Chattel

A

Removable objects that do not form part of land  seller will be free to take them

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5
Q

Fixtures and Chattels > 3. Test One Authority

A

Berkley v Poulett

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6
Q

Fixtures and Chattels > 3. Test One

A

Berkley v Poulett
Degree and method of annexation
How firmly is the item attached to the land?
If attached to soil/securely affixed to land/would cause damage if removed –> Presumption of fixture.

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7
Q

Fixtures and Chattels > 3. Berkley v Poulett

A

Test One
Degree and method of annexation
How firmly is the item attached to the land?
If attached to soil/securely affixed to land/would cause damage if removed –> Presumption of fixture.

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8
Q

Fixtures and Chattels > 3. Two Tests

A

Test One: Degree and Method of Annexation (Berkley v Poulett)
Test Two: Object and Purpose of Annexation (D’Eyncourt)

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9
Q

Fixtures and Chattels > 3. Test Two > D’Eyncourt v Gregory and Leigh v Taylor

A

Object and Purpose of Annexation

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10
Q

Fixtures and Chattels > 3. Test Two > Object and Purpose of Annexation

A

D’Eyncourt v Gregory and Leigh v Taylor

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11
Q

Fixtures and Chattels > 3. Test Two > D’Eyncourt

A

If forms part of architectural design of garden/house –> fixture (even if free-standing/not firmly fixed)

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12
Q

Fixtures and Chattels > 3. Test Two > If forms part of architectural design of garden/house –> fixture (even if free-standing/not firmly fixed)

A

D’Eyncourt

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13
Q

Fixtures and Chattels > 3. Test Two > Leigh

A

Annexation is only way object can serve its function/purpose –> Fixture

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14
Q

Fixtures and Chattels > 3. Test Two > Annexation is only way object can serve its function/purpose –> Fixture

A

Leigh

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15
Q

Fixtures and Chattels > 4. Existing precedent > Statue, Chattel or Plinth?

A

Berkley v Poulett

Chattel, provided capable of being removed without causing damage and not part of the architectural design.

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16
Q

Fixtures and Chattels > 4. Existing precedent > Berkley v Poulett (S)

A

Statue: Chattel, provided capable of being removed without causing damage and not part of the architectural design

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17
Q

Fixtures and Chattels > 4. Existing precedent > Berkley v Poulett (P)

A

Plinth = fixture

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18
Q

Fixtures and Chattels > 4. Existing precedent > Plinth, Chattel or Fixture?

A

Fixture

Berkley v Poulett

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19
Q

Fixtures and Chattels > 4. Existing precedent > Botham v TSB Bank Plc

A

Light fittings, white goods, fitted carpets and curtains - all usually chattels

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20
Q

Fixtures and Chattels > 4. Existing precedent > Light fittings, white goods, fitted carpets and curtains - all usually chattels

A

Botham v TSB Bank Plc

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21
Q

Fixtures and Chattels > 4. Existing precedent > Elitestone Ltd v Morris and another

A

Bungalow and garden shed/ greenhouse: Chattels, provided capable of being easily dismantled and transferred around the garden.

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22
Q

Fixtures and Chattels > 4. Existing precedent > Bungalow and garden shed/ greenhouse: Chattels, provided capable of being easily dismantled and transferred around the garden.

A

Elitestone Ltd v Morris and another

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23
Q

Fixtures and Chattels > 4. Existing precedent > Bungalow and garden shed/ greenhouse, Fixtures or Chattels?

A

Elitestone Ltd v Morris and another

Chattels, provided capable of being easily dismantled and transferred around the garden.

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24
Q

Enforceability of Third Party Rights > Steps

A

Step 1: Identify the type of third-party right being claimed
Step 2: Is it capable of being legal?
Step 3: What are the formalities required? I.e. has it been validly created?
Step 4: Classify the interest – is it legal, equitable or statutory?
Step 5: Will it bind the buyer? Depends if it is the unregistered or registered system.
Step 6: Conclude: does third party interest bind the buyer?

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25
Q

Enforceability of Third Party Rights > 2. Legal? > s.1(2) or s.1(1)(b) LPA

A

Yes: Easements, mortgages, leases

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26
Q

Enforceability of Third Party Rights > 2. Legal? > Yes: Easements, mortgages, leases

A

s.1(2) or s.1(1)(b) LPA

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27
Q

Enforceability of Third Party Rights > 2. Legal? > s.1(3) LPA

A

No: Restrictive Covenants, estate contracts, options, beneficial interests, trusts, FLA

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28
Q

Enforceability of Third Party Rights > 2. Legal? > No: Restrictive Covenants, estate contracts, options, beneficial interests, trusts, FLA

A

s.1(3) LPA

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29
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Easement > s.1(2)(a)

A

Must be equivalent to terms of years absolute/forever

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30
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Easement > Must be equivalent to terms of years absolute/forever

A

s.1(2)(a)

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31
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Easement > s.52(1) LPA

A

Must be by deed (see below)

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32
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Easement > Must be by deed (see below)

A

s.52(1) LPA

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33
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > s.52(1) LPA

A

By Deed

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34
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > By Deed

A

s.52(1) LPA

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35
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > S.1 LP(MP)A

A

Must be signed, witnessed and delivered as a deed and say it is a deed

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36
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > Must be signed, witnessed and delivered as a deed and say it is a deed

A

S.1 LP(MP)A

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37
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > UNLESS – is a parol lease

A 
Conditions:
•	Not exceeded three years
•	In possession;
•	At market rent; and
•	Without a fine
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38
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > s.2 LP(MP)A

A

Another option: a legal periodic tenancy can arise even where there is no deed. Or where s.2 LP(MP)A is not satisfied.

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39
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Lease > Another option: a legal periodic tenancy can arise even where there is no deed. Or where s.2 LP(MP)A is not satisfied.

A

s.2 LP(MP)A

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40
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Charge (Mortgage) > s.52(1) LPA 1925

A

By Deed

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41
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Charge (Mortgage) > By Deed

A

s.52(1) LPA 1925

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42
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Charge (Mortgage) > s.1 LP(MP)A

A

Must be signed, witnessed and delivered as a deed and say it is a deed

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43
Q

Enforceability of Third Party Rights > 3. Formalities > Legal Charge (Mortgage) > Must be signed, witnessed and delivered as a deed and say it is a deed

A

s.1 LP(MP)A

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44
Q

Enforceability of Third Party Rights > 3. Formalities > Statutory > s.30 Family Law Act 1996

A
  • Be married/civil partnership
  • Legal owner still alive
  • Home must be/have been/will be the matrimonial home
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45
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Restrictive Covenant > s.52(1)(a) LPA

A

Signed and in writing

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46
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Restrictive Covenant > Signed and in writing

A

s.52(1)(a) LPA

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47
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Lease > s.2LP(MP)A

A

(Because equitable lease is a type of estate contract)
• Signed
• In writing; and
• Contains all terms

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48
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Lease > (Because equitable lease is a type of estate contract)
• Signed
• In writing; and
• Contains all terms

A

s.2LP(MP)A

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49
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Easement > s.53(1)(a) LPA

A
  • Signed; and

* In writing

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50
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Easement >
• Signed; and
• In writing

A

s.53(1)(a) LPA

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51
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Easement > s.2 LP(MP)A 1989

A

(Correct formalities for an estate contract – signed by both parties, writing, contains all agreed terms) Can be equitable if:
• Fails s.1(2)(a); or
• Fails s.52(1)

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52
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Equitable Easement >
(Correct formalities for an estate contract – signed by both parties, writing, contains all agreed terms) Can be equitable if:
• Fails s.1(2)(a); or
• Fails s.52(1)

A

s.2 LP(MP)A 1989

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53
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Estate Contracts examples

A

equitable lease; option to purchase land

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54
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Estate Contracts > s.2 LP(MP)A

A
  • Signed;
  • In writing; and
  • Contains all agreed terms
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55
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Estate Contracts >
• Signed;
• In writing; and
• Contains all agreed terms

A

s.2 LP(MP)A

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56
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Trusts > s.53(1)(b) LPA

A

Express Trust: In writing

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57
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Trusts > Express Trust: In writing

A

s.53(1)(b) LPA

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58
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Trusts > s.53(2) LPA

A

Implied Trust: arise without formalities

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59
Q

Enforceability of Third Party Rights > 3. Formalities > Equitable > Trusts > Implied Trust: arise without formalities

A

s.53(2) LPA

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60
Q

Enforceability of Third Party Rights > 5. Will it bind? > Note

A

Often the question will involve considering firstly whether the purchaser will be bound under the registered system, and then considering whether he would be bound if the land was unregistered.

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61
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System > Steps

A
  1. Is the right registerable on the Land Charges Register? (in plymouth)
  2. If the right is registerable, depends if registered against owner’s name by date of completion of sale
  3. If right is not registerable depends if legal or equitable
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62
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > s.2 Land Charges Act 1972

A
  1. Is the right registerable on the Land Charges Register? (in plymouth)
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63
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > 1. Is the right registerable on the Land Charges Register? (in plymouth)

A

s.2 Land Charges Act 1972

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64
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Class C(i) Land Charge

A

Puisne Mortgages

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65
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Puisne Mortgages

A

Class C(i) Land Charge

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66
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Class C(iv) Land Charge

A

Estate Contract

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67
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Estate Contract

A

Class C(iv) Land Charge

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68
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Class D(ii) Land Charge

A

Restrictive covenant. Unless:
o Contained in a lease; or
o Created before 1926

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69
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Restrictive covenant. Unless:
o Contained in a lease; or
o Created before 1926

A

Class D(ii) Land Charge

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70
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Class D(iii) Land Charge

A

Equitable Easement

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71
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Equitable Easement

A

Class D(iii) Land Charge

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72
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > Class F Land Charge

A

s.30 Family Law Act 1996 (FLA) right to occupy the matrimonial home

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73
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System - 1 > s.30 Family Law Act 1996 (FLA) right to occupy the matrimonial home

A

Class F Land Charge

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74
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System > Step 2

A

If the right is registerable, depends if registered against owner’s name by date of completion of sale
• If registerable and registered –> binds buyer
• If registerable and NOT registered –> buyer takes free of interest (unless a gift)

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75
Q

Enforceability of Third Party Rights > 5. Will it bind? > Unregistered System > Step 3

A

If right is not registerable depends if legal or equitable
• If a trust interest –> binds buyer unless:
o He has overreached (s.2, s.27 LPA) see conditions below
o He’s equity’s darling
• If a non-trust interest –> binds buyer unless he is equity darling

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76
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > Steps

A
  1. Classify the right as either a registerable disposition, an overriding interest, a trust interest or an interest affecting a registered estate (IARE)
  2. How to bind buyer
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77
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Categories of disposition

A
  1. Registerable Disposition
  2. Overriding Interest
  3. Trust Interest
  4. IARE (Interest affecting a registered estate)
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78
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Registerable Disposition > Examples

A 
Sch 3 para 2
•	Legal easements (expressly by deed)
•	Legal Charges (i.e. mortgages)
•	Legal Lease of seven years
•	Note: Even if not registered, check for Sch 3 para 2
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79
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Registerable Disposition

A 
Sch 3 para 2
•	Legal easements (expressly by deed)
•	Legal Charges (i.e. mortgages)
•	Legal Lease of seven years
•	Note: Even if not registered, check for Sch 3 para 2
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80
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Sch 3 LRA 2002, paras 1-3

A

Overriding interest (both legal and equitable interest)

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81
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Overriding interest (both legal and equitable interest)

A

Sch 3 LRA 2002, paras 1-3

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82
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Overriding Interest > Sch 3, para 1; if created before 13/10/03 Sch 12 para 12

A

Legal lease for 7 years or less

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83
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Overriding Interest > Legal lease for 7 years or less

A

Sch 3, para 1; if created before 13/10/03 Sch 12 para 12

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84
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Overriding Interest > Sch 3 para 3(1); if created before 13/10/03 Sch 12 para 9

A

Legal Easements (prescription/implied on sale of part), provided:
o Within actual knowledge of buyer;
o Obvious on a reasonably careful inspection of the land; or
o Used within the past year

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85
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Overriding Interest >
Legal Easements (prescription/implied on sale of part), provided:
o Within actual knowledge of buyer;
o Obvious on a reasonably careful inspection of the land; or
o Used within the past year

A

Sch 3 para 3(1); if created before 13/10/03 Sch 12 para 9

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86
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Trust Interest

A

Express trusts, implied trusts (resulting or constructive)

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87
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Trust Interest > s.33 LRA

A

Cannot be protected by notice; and,

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88
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Trust Interest > Cannot be protected by notice; and,

A

s.33 LRA

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89
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Trust Interest > s.40 LRA

A

May be recorded as a restriction in the proprietorship register at the Land Registry by date of registration of buyer

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90
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > Trust Interest > May be recorded as a restriction in the proprietorship register at the Land Registry by date of registration of buyer

A

s.40 LRA

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91
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 1. Classify > IARE

A

All other interests (most equitable interests)
• Estate contract
• Equitable easements
• Restrictive covenants; and
• FLA right (s.31 cannot be protected by Sch 3 para 2)

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92
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Registrable Disposition

A

s.29 LRA
Must be registered at Land Registry by date of registration of buyer as new owner  only legal at this point (deed is insufficient)

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93
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > s.29 LRA

A

Registrable Disposition:
Must be registered at Land Registry by date of registration of buyer as new owner  only legal at this point (deed is insufficient)

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94
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Overriding Interest > General Rule

A

Must exist by date of registration of buyer as new owner – Need NOT be registered

BUT For Sch 3 para 2 the date of registration of the buyer as the new owner is the relevant date for assessing actual occupation

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95
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Overriding Interest > But..(Sch 3 para 2)

A

For Sch 3 para 2 the date of registration of the buyer as the new owner is the relevant date for assessing actual occupation

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96
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Trust Interest >
ss.2 and 27 LPA

A

Restriction will alert the buyer of the need to overreach (buyer pays all purchase monies to all trustees, being at least 2 in number)

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97
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Trust Interest > Restriction will alert the buyer of the need to overreach (buyer pays all purchase monies to all trustees, being at least 2 in number)

A

ss.2 and 27 LPA

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98
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Trust Interest

A
  • If the buyer fails to overreach they will be prevented from registering the purchase
  • Whether or not there is a restriction recorded, the trust interest might be overriding under Sch 3 para 2 and therefore the buyer must overreach to purchase free of any interest
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99
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > IARE’s > s.29 LPA

A

Must be registered on charges register at Land Registry by date of registration of buyer

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100
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > IARE’s > Must be registered on charges register at Land Registry by date of registration of buyer

A

s.29 LPA

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101
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Sch 12 para 9

A

Easements that were overriding under old law continue to override

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102
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Easements that were overriding under old law continue to override

A

Sch 12 para 9

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103
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Sch 12 para 12

A

Legal leases for 21 years or less granted before 12/10/2003 continue to override.

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104
Q

Enforceability of Third Party Rights > 5. Will it bind? > The Registered System > 2. how to bind buyer > Legal leases for 21 years or less granted before 12/10/2003 continue to override.

A

Sch 12 para 12

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105
Q

Land Law Key Concepts

A

Equity’s Darling, actual occupation, overreaching and the registers

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106
Q

Equity’s Darling

A
  1. Bona Fide (acting in good faith, not fraudulent
  2. Purchaser (receives property other than by operation of law – i.e. not intestacy rules or bankruptcy)
  3. of the legal estate;
  4. For value (have given consideration)
  5. Without notice. Hard to prove, but can be:
    • Actual (s.198 LPA)
    • Imputed (solicitor/agent had actual/constructive knowledge); or
    • Constructive –
    o Would have come to notice if such inquiries/inspections had been made as ought reasonably to have been made (s.199(1) LPA)
    o Presence wold have been apparent from inspection (Kingsnorth Finance Co Ltd v Tizard)
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107
Q

Equity’s Darling > Summary

A

Bona Fide purchaser of the legal estate; for value without notice

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108
Q

Equity’s Darling > Without notice: includes actual

A

s.198 LPA

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109
Q

Equity’s Darling > s.198 LPA

A

Without notice: includes actual

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110
Q

Equity’s Darling > s.199(1) LPA

A

Would have come to notice if such inquiries/inspections had been made as ought reasonably to have been made

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111
Q

Equity’s Darling > Would have come to notice if such inquiries/inspections had been made as ought reasonably to have been made

A

s.199(1) LPA

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112
Q

Equity’s Darling > Kingsnorth Finance Co Ltd v Tizard

A

Presence wold have been apparent from inspection

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113
Q

Equity’s Darling > Presence wold have been apparent from inspection

A

Kingsnorth Finance Co Ltd v Tizard

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114
Q

Actual Occupation

A

Must be:

  1. Obvious on a reasonably careful inspection of land, or buyer knew of it; or
  2. Person disclosed the right if enquiries were made of it when he could reasonably be expected to do so.
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115
Q

Actual Occupation will not protect?

A 
An FLA right (s.31(10)(b) FLA); and,
An easement (because the dominant owner is not in actual occupation of the land affected
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116
Q

Actual Occupation > Case Law > Thomas v Clydesdale bank Plc

A

For actual occupation to be ‘obvious on a reasonably careful inspection’, there must be ‘visible signs of occupation, which have to be obvious on inspection.’

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117
Q

Actual Occupation > Case Law >
For actual occupation to be ‘obvious on a reasonably careful inspection’, there must be ‘visible signs of occupation, which have to be obvious on inspection.’

A

Thomas v Clydesdale bank Plc

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118
Q

Actual Occupation > Case Law > Mallory Enterprises v Cheshire Homes

A

Fencing may suffice on derelict land

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119
Q

Actual Occupation > Case Law > Fencing may suffice on derelict land

A

Mallory Enterprises v Cheshire Homes

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120
Q

Actual Occupation > Case Law > William’s & Glynn’s Bank v Boland

A

Actual Occupation necessitates ‘physical presence on the land’.

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121
Q

Actual Occupation > Case Law > Actual Occupation necessitates ‘physical presence on the land’.

A

William’s & Glynn’s Bank v Boland

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122
Q

Actual Occupation > Case Law > Lloyd’s Bank Plc v Rosser

A

Actual Occupation can be visiting the property regularly to supervise renovation work

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123
Q

Actual Occupation > Case Law > Actual Occupation can be visiting the property regularly to supervise renovation work

A

Lloyd’s Bank Plc v Rosser

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124
Q

Actual Occupation > Case Law > Kling v Keston Properties

A

Actual Occupation can be a car parked regularly in the garage

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125
Q

Actual Occupation > Case Law > Actual Occupation can be a car parked regularly in the garage

A

Kling v Keston Properties

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126
Q

Actual Occupation > Case Law > Chhokar v Chhokar

A

A temporary absence does not preclude actual occupation

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127
Q

Actual Occupation > Case Law > A temporary absence does not preclude actual occupation

A

Chhokar v Chhokar

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128
Q

Actual Occupation > Case Law > Abbey National Building Society v Cann

A

Preparatory steps leading to actual occupation are not actual occupation. Some degree of permanence and continuity is needed (Lord Oliver)

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129
Q

Actual Occupation > Case Law > Preparatory steps leading to actual occupation are not actual occupation. Some degree of permanence and continuity is needed (Lord Oliver)

A

Abbey National Building Society v Cann

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130
Q

Actual Occupation > Case Law > Strand Securities v Caswell

A

An agent can have actual occupation for you; a relative cannot

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131
Q

Actual Occupation > Case Law > An agent can have actual occupation for you; a relative cannot

A

Strand Securities v Caswell

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132
Q

Actual Occupation > Case Law > Link Lending v Bustard

A

Can be in actual occupation if your possessions are still in the property and you have aspirations to return

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133
Q

Actual Occupation > Case Law > Can be in actual occupation if your possessions are still in the property and you have aspirations to return

A

Link Lending v Bustard

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134
Q

Actual Occupation > Case Law > Thompson v Foy

A

Cannot be actual occupation if you have no aspiration to return

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135
Q

Actual Occupation > Case Law > Cannot be actual occupation if you have no aspiration to return

A

Thompson v Foy

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136
Q

Actual Occupation > Case Law > Hypo Mortgage Services v Robinson

A

A minor cannot be in actual occupation, they are classed as shadows of their parents

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137
Q

Actual Occupation > Case Law > A minor cannot be in actual occupation, they are classed as shadows of their parents

A

Hypo Mortgage Services v Robinson

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138
Q

Actual Occupation > Case Law > Lloyd’s Bank v Rosset

A

(A minor cannot b in actual occupation) unless they are there as their ‘agent’

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139
Q

Actual Occupation > Case Law >

(A minor cannot b in actual occupation) unless they are there as their ‘agent’

A

Lloyd’s Bank v Rosset

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140
Q

Actual Occupation > Case Law > AIB Group (UK) Plc v Turner

A

Ratio: son’s occupation is not parent’s occupation

Obiter: having a second home does not mean first home ceases to be a home

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141
Q

Actual Occupation > Case Law > Ratio: son’s occupation is not parent’s occupation

Obiter: having a second home does not mean first home ceases to be a home

A

AIB Group (UK) Plc v Turner

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142
Q

Actual Occupation > Case Law > AIB Group (UK) Plc v Turner > Ratio

A

son’s occupation is not parent’s occupation

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143
Q

Actual Occupation > Case Law > AIB Group (UK) Plc v Turner > Obiter

A

having a second home does not mean first home ceases to be a home

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144
Q

Overreaching

A

ss.2, 27 LPA

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145
Q

Overreaching > City of London Building Society v Flegg

A

Dissolving of an equitable right under a trust in a property can occur where:

  1. Buyer purchasing legal estate;
  2. Pays monies to all trustees; and
  3. Trustees are at least two in number, or a trust corporation
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146
Q

Overreaching > Dissolving of an equitable right under a trust in a property can occur where:

  1. Buyer purchasing legal estate;
  2. Pays monies to all trustees; and
  3. Trustees are at least two in number, or a trust corporation
A

City of London Building Society v Flegg

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147
Q

ss.2, 27 LPA

A

Overreaching

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148
Q

Land Law Key Concepts > Points to Note > s.4 LRA 2002

A

Some transactions require compulsory registration at the land Registry, e.g. the sale, gift, mortgage or assent of a freehold/leasehold which has more than seven years left to run

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149
Q

Land Law Key Concepts > Points to Note > Some transactions require compulsory registration at the land Registry, e.g. the sale, gift, mortgage or assent of a freehold/leasehold which has more than seven years left to run

A

s.4 LRA 2002

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150
Q

Land Law Key Concepts > Points to Note > The property register

A

Describes the property and the legal estate held in it

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151
Q

Land Law Key Concepts > Points to Note > Describes the property and the legal estate held in it

A

The property register

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152
Q

Land Law Key Concepts > Points to Note > The charges register

A

Third party interests that burden the land

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153
Q

Land Law Key Concepts > Points to Note > Third party interests that burden the land

A

The charges register

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154
Q

Land Law Key Concepts > Points to Note > The proprietorship register

A

Describes nature of title held (e.g. absolute), details of owners including restrictions on their power to deal with property (e.g. trust interest).

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155
Q

Land Law Key Concepts > Points to Note > Describes nature of title held (e.g. absolute), details of owners including restrictions on their power to deal with property (e.g. trust interest).

A

The proprietorship register

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156
Q

Land Law Key Concepts > Points to Note > What Does not appear on the register?

A
  • Leasehold covenants; and

* Overriding interests (need only exist, not be registered)

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157
Q

Trusts of Land and Co-ownership > Steps

A

Step One: State – ‘This question involves the co-ownership of [insert name of property] by [insert names of purchasing parties]. When land is co-owned, it gives rise to a statutory trust of land (s.36 Law of Property Act 1925)’
Step Two: Explain how the LEGAL TITLE to the land is held on the purchase of the property
Step Three: Explain how the EQUITABLE INTEREST in the land is held on the purchase of the property
Step Four: Discuss the effect of incidents/changing arrangements described (deaths, sales, mortgages, etc.) on the LEGAL TITLE
Step Five: Discuss the effect of incidents/changing arrangements described (deaths, sales, mortgages, etc.) on the EQUITABLE INTEREST
Step Six: Conclude as to how both the legal title and the equitable interest are held (joint tenants or tenants in common, and in what proportions
Step Seven: If question requires, explain how DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES over whether to sell the property might be resolved.
Step Eight: If the question specifies, explain whether any potential buyer will be bound by the equitable interests that exist in the property.

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158
Q

Trusts of Land and Co-ownership > Step 1 - State?

A

‘This question involves the co-ownership of [insert name of property] by [insert names of purchasing parties]. When land is co-owned, it gives rise to a statutory trust of land (s.36 Law of Property Act 1925)’

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159
Q

Trusts of Land and Co-ownership > Step 1 - State > s.36 Law of Property Act 1925

A

When land is co-owned, it gives rise to a statutory trust of land

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160
Q

Trusts of Land and Co-ownership > Step 1 - State > When land is co-owned, it gives rise to a statutory trust of land

A

s.36 Law of Property Act 1925

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161
Q

Trusts of Land and Co-ownership > 2. Legal title > s.1(6) LPA 1925

A

Legal Title is ALWAYS held as JOINT TENANCY

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162
Q

Trusts of Land and Co-ownership > 2. Legal title > Legal Title is ALWAYS held as JOINT TENANCY

A

s.1(6) LPA 1925

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163
Q

Trusts of Land and Co-ownership > 2. Legal title > s.34(2) LPA 1925

A

A maximum of FOUR people may hold the legal estate jointly (first four on the deed)
But remember that a co-owner must be 18 in order to hold a legal estate in land

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164
Q

Trusts of Land and Co-ownership > 2. Legal title > A maximum of FOUR people may hold the legal estate jointly (first four on the deed)

A

s.34(2) LPA 1925

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165
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 2 types

A

JOINT TENANCY; or TENANCY IN COMMON

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166
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > Joint Tenancy

A
  • Co-owners have identical interests in the property, their interests being of non-defined proportions;
  • Cannot dispose of legal joint tenancy in will, joint tenancies will run on survivorship (Gould v Kemp)
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167
Q

Trusts of Land and Co-ownership > 3. Equitable Interest >
• Co-owners have identical interests in the property, their interests being of non-defined proportions;
• Cannot dispose of legal joint tenancy in will, joint tenancies will run on survivorship
(Gould v Kemp)

A

Joint Tenancy

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168
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > Joint Tenancy > Gould v Kemp

A

• Cannot dispose of legal joint tenancy in will, joint tenancies will run on survivorship

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169
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > Joint Tenancy >
• Cannot dispose of legal joint tenancy in will, joint tenancies will run on survivorship

A

Gould v Kemp

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170
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > Tenancy In Common

A
  • Co-owners have separate, but as yet undivided shares in the property, each for a specific percentage in ownership of the property; and
  • A Co-owner’s share can be disposed of in a will
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171
Q

Trusts of Land and Co-ownership > 3. Equitable Interest >
• Co-owners have separate, but as yet undivided shares in the property, each for a specific percentage in ownership of the property; and
• A Co-owner’s share can be disposed of in a will

A

Tenancy In Common

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172
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > Tests

A
  1. Are the FOUR UNITIES PRESENT?
  2. Express Statement
  3. Words of Severance
  4. Presumptions
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173
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > PITT

A

Possession, Interest, Title, Time

Unity of TIME
Unity of TITLE
Unity of INTEREST
Unity of POSSESSION

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174
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > Unity of TIME

A

Did the co-owners acquire their interests in the property at the same time?

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175
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > Unity of TITLE

A

Did the Co-owners acquire their interests in the property under the same document?

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176
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > Unity of INTEREST

A

Are the Co-owners’ interests in the property of the SAME NATURE AND DURATION?

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177
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > Unity of POSSESSION

A

Are the co-owners each equally entitled to use and occupy the WHOLE PREMISES?

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178
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 1. Are the FOUR UNITIES PRESENT? > Effect of test

A

If all unities are present, the equitable interest MAY be held as a JOINT TENANCY (proceed to tests 2, 3 and 4 to confirm)

If any one of the unities are missing, it CANNOT be a JOINT TENANCY

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179
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 2. Express Statement > Goodman v Gallant

A

Does the transfer document contain EXPRESS STATEMENT as to how the equitable interest is held? –> if it does, it is CONCLUSIVE.

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180
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 2. Express Statement > Does the transfer document contain EXPRESS STATEMENT as to how the equitable interest is held? –> if it does, it is CONCLUSIVE.

A

Goodman v Gallant

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181
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 3. Words of Severance > Robertson v Fraser

A

Are there WORDS OF SEVERANCE in the transfer document? E.g. to be held equally/in equal shares –> if so, equitable interest will be held as TENANCY IN COMMON

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182
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 3. Words of Severance > Are there WORDS OF SEVERANCE in the transfer document? E.g. to be held equally/in equal shares  if so, equitable interest will be held as TENANCY IN COMMON

A

Robertson v Fraser

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183
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 3. Words of Severance

A

Are there WORDS OF SEVERANCE in the transfer document? E.g. to be held equally/in equal shares  if so, equitable interest will be held as TENANCY IN COMMON
(Robertson v Fraser)

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184
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 4. Presumptions

A

Does EQUITY PRESUME A TENANCY IN COMMON? Equity will do so where:
• The buyers each contributed different amounts to the purchase price (Lake v Gibson); or
• The property was bought on behalf of a business

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185
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 4. Presumptions > Lake v Gibson

A

• The buyers each contributed different amounts to the purchase price

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186
Q

Trusts of Land and Co-ownership > 3. Equitable Interest > 4. Presumptions > • The buyers each contributed different amounts to the purchase price

A

Lake v Gibson

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187
Q

Trusts of Land and Co-ownership > 4. Effect on Legal Title > s.36(2) LPA 1925

A

Severance of the Legal Title is PROHIBITED. Therefore, Legal Title will continue to be held as JOINT TENANCY.

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188
Q

Trusts of Land and Co-ownership > 4. Effect on Legal Title > Severance of the Legal Title is PROHIBITED. Therefore, Legal Title will continue to be held as JOINT TENANCY.

A

s.36(2) LPA 1925

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189
Q

Trusts of Land and Co-ownership > 4. Effect on Legal Title > Under the RIGHT OF SURVIVORSHIP

A

On the death of a Trustee (one of co-owners of the property), legal title passes onto other co-trustees

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190
Q

Trusts of Land and Co-ownership > 4. Effect on Legal Title > On the death of a Trustee (one of co-owners of the property), legal title passes onto other co-trustees

A

Under the RIGHT OF SURVIVORSHIP

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191
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest

A

The equitable interest may be SEVERED (i.e. ownership of the equitable interest as a joint tenancy ends, and co-owners become tenants in common, owning separate shares in the property), by:

  1. Notice
  2. Alienation
  3. Mutual Agreement or A course of Dealings
  4. Homicide
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192
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > s.36(2) LPA 1925

A

To be effective, any severance must comply with s.36(2) LPA 1925
• Be IN WRITING but needs to:
o Show CORRECT INTENTION, i.e. must show intention to sever immediately, and not at some later date
o Be correctly SERVED

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193
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice >
• Be IN WRITING but needs to:
o Show CORRECT INTENTION, i.e. must show intention to sever immediately, and not at some later date
o Be correctly SERVED

A

To be effective, any severance must comply with s.36(2) LPA 1925

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194
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Harris v Goddard

A

o Show CORRECT INTENTION, i.e. must show intention to sever immediately, and not at some later date

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195
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > o Show CORRECT INTENTION, i.e. must show intention to sever immediately, and not at some later date

A

Harris v Goddard

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196
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: > s.196(3) LPA 1925

A

• Notice is left at the last known abode/place of business of person to be served

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197
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: >
• Notice is left at the last known abode/place of business of person to be served

A

s.196(3) LPA 1925

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198
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: > Kinch v Bullard

A

[Last known abode/business]

o (If delivered here, notice will be effective even if addressee does not actually receive the notice)

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199
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: >
[Last known abode/business]
o (If delivered here, notice will be effective even if addressee does not actually receive the notice)

A

Kinch v Bullard

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200
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: > s.196(4) LPA 1925

A

• Notice is sent by registered post to person to be served

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201
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: > • Notice is sent by registered post to person to be served

A

s.196(4) LPA 1925

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202
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: > Re 88 Berkley Road NW9

A

[Registered Post]

o Effective, even if not actually ‘received’, provided letter is not sent back undelivered

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203
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice > Notice will be correctly served if: >
[Registered Post]
o Effective, even if not actually ‘received’, provided letter is not sent back undelivered

A

Re 88 Berkley Road NW9

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204
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 1.Notice >

A

Notice will be correctly served if:
• Notice is left at the last known abode/place of business of person to be served (s.196(3) LPA 1925)
o (If delivered here, notice will be effective even if addressee does not actually receive the notice) (Kinch v Bullard) OR
• Notice is sent by registered post to person to be served (s.196(4) LPA 1925)
o Effective, even if not actually ‘received’, provided letter is not sent back undelivered (Re 88 Berkley Road NW9)

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205
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 2. Alienation

A
  • Sale, gift, mortgage or bankruptcy

* Any severance by alienation must be in compliance with s.53(1)(c) LPA 1925 – evidenced in signed writing

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206
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. MUTUAL AGREEMENT

A

Where joint tenants expressly agree to sever the equitable interest

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207
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. MUTUAL AGREEMENT > Burgess v Rawnsley

A

Oral agreement is sufficient to show common intention necessary to sever a joint tenancy

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208
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. MUTUAL AGREEMENT > Oral agreement is sufficient to show common intention necessary to sever a joint tenancy

A

Burgess v Rawnsley

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209
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. COURSE OF DEALINGS

A

Where parties act in a way that suggests they intend the shares to be held as tenancy in common

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210
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. COURSE OF DEALINGS > Morley v Bird

A

e.g. Where bought for business.

This cannot be a unilateral statement by one party alone.

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211
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 3. COURSE OF DEALINGS > e.g. Where bought for business.
(This cannot be a unilateral statement by one party alone.)

A

Morley v Bird

212
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > 4. Homicide > Re K

A

The last method of severance is the severance that occurs when one co-owner kills another. Where one of two joint tenants murders the other, this has the effect of severing the joint tenancy in equity. This prevents the murderer from benefiting from the crime. The victim’s equitable interest in the land passes to the beneficiaries under his or her will or intestacy. The murderer takes the legal estate in the land as a result of survivorship. The legal estate is held on trust of land for the murderer and the victim’s estate as equitable tenants in common

213
Q

Trusts of Land and Co-ownership > 5. Effect on Equitable Interest > N.B.

A

When severance occurs, the severed part will hold on a tenancy in common basis, any other parties will remain joint tenants of the remainder

214
Q

Trusts of Land and Co-ownership > Step Six: Conclude as to how both the legal title and the equitable interest are held (joint tenants or tenants in common, and in what proportions

A

Remember that the legal estate cannot be held by one person as a joint tenant – he/she will become the sole surviving owner of the legal estate

215
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES

A

Typical problem question scenario: as the sole surviving owner of the legal estate, the trustee of land wishes to sell property, against the wishes of one or more beneficiaries who hold an equitable interest in the property.

216
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > Steps

A
  1. State
  2. s.6(1) TLATA 1996
  3. s.14 TLATA 1996
  4. s.12 TLATA 1996
217
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > State

A

‘under s.36 LPA 1925, co-ownership of a property gives rise to a trust of land, and this is governed by Trusts of Land and Appointment of Trustees Act (TLATA) 1996

218
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.6(1) TLATA 1996

A

Trustees of land have all the powers of an absolute owner of the land (i.e. they may sell or lease the property). But – in the exercise of these powers, trustees must:
• Have regard to the rights of beneficiaries; and s.6(5)
• Consult beneficiaries and, so far as consistent with the general interest of the trust, give effect to the majority wishes s.11(1)

219
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > Trustees of land have all the powers of an absolute owner of the land (i.e. they may sell or lease the property).

A

s.6(1) TLATA 1996

220
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.6(5) TLATA 1996

A

Have regard to the rights of beneficiaries

221
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > Have regard to the rights of beneficiaries

A

s.6(5) TLATA 1996

222
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.11(1) TLATA 1996

A

Consult beneficiaries and, so far as consistent with the general interest of the trust, give effect to the majority wishes

223
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > Consult beneficiaries and, so far as consistent with the general interest of the trust, give effect to the majority wishes

A

s.11(1) TLATA 1996

224
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.14 TLATA 1996

A

In the case of a dispute, either the trustee of the land (legal owner) or the beneficiary/ies (with an equitable interest) may apply to the court for a decision

225
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > In the case of a dispute, either the trustee of the land (legal owner) or the beneficiary/ies (with an equitable interest) may apply to the court for a decision

A

s.14 TLATA 1996

226
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.15 TLATA 1996

A

In coming to this decision, the court will consider factors such as:
• The purpose for which the property on trust is held (consider: does this purpose still exist?) And;
• The welfare of any minor who might be seeking to occupy the property as his home

227
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES >
In coming to this decision, the court will consider factors such as:
• The purpose for which the property on trust is held (consider: does this purpose still exist?) And;
• The welfare of any minor who might be seeking to occupy the property as his home

A

s.15 TLATA 1996

228
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.12 TLATA 1996

A

Beneficiaries are entitled to occupy land at any time provided:

a) Purposes of the trust are to make land available for his occupation and
b) Land is held by the trustees so as to be so available

229
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES >
Beneficiaries are entitled to occupy land at any time provided:
a) Purposes of the trust are to make land available for his occupation and
b) Land is held by the trustees so as to be so available

A

s.12 TLATA 1996

230
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES > s.13 TLATA 1996

A
  • Despite the provisions of s.12, trustees may impose reasonable conditions on a beneficiary n relation to this entitlement to occupy the land
231
Q

Trusts of Land and Co-ownership > 7. DISPUTE BETWEEN TRUSTEES AND BENEFICIARIES >
- Despite the provisions of s.12, trustees may impose reasonable conditions on a beneficiary n relation to this entitlement to occupy the land

A

s.13 TLATA 1996

232
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > If two or more co-owners hold legal title (i.e. are trustees)

A

As a buyer will be buying from at least two trustees, he will be OVERREACHING the beneficiaries’ equitable interests under a trust of land, so he will take the land free of these interests.

233
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > If there is just one sole surviving co-owner selling to the buyer

A

How the buyer will take for free depends on whether the land is registered or unregistered

234
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Registered >

A

A restriction can be entered on the proprietorship register to alert the buyer

  • If a restriction has been registered, buyer must OVERREACH (ss.2 and 27 LPA 1925)
  • If no restriction has been registered: buyer may assume land was previously held as a joint tenancy in equity and is therefore safe to buy
235
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Registered > ss.2 and 27 LPA 1925

A

If a restriction has been registered, buyer must OVERREACH

236
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Registered > If a restriction has been registered, buyer must OVERREACH

A

ss.2 and 27 LPA 1925

237
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Registered > Williams & Glyn’s Bank v Boland

A

BUT – where an equitable interest under a trust is protected by a right under Sch3 para 2 LRA (if someone is in actual occupation), this will elevate the trust interest to OVERRIDING STATUS. If this is the case, buyer must overreach or be bound.

238
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Registered >
BUT – where an equitable interest under a trust is protected by a right under Sch3 para 2 LRA (if someone is in actual occupation), this will elevate the trust interest to OVERRIDING STATUS. If this is the case, buyer must overreach or be bound.

A

Williams & Glyn’s Bank v Boland

239
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Unregistered > ss.2 and 27 LPA

A

Trust interests are not registrable land charges, and thus cannot be registered on the Land Charges Register. To take land free of the equitable interests, buyer must either OVERREACH or be EQUITY’S DARLING

240
Q

Trusts of Land and Co-ownership > 8. Binding the Buyer > Unregistered > Trust interests are not registrable land charges, and thus cannot be registered on the Land Charges Register. To take land free of the equitable interests, buyer must either OVERREACH or be EQUITY’S DARLING

A

ss.2 and 27 LPA

241
Q

Leases > Steps

A

Step One: Is the right a lease or license?
Step Two: Have the formalities for creation been satisfied?
Step Three: Enforceability

242
Q

Leases > 1. lease or license? > 3 requirements for a lease?

A
  • Exclusive possession
  • Certainty of Duration; and
  • Rent (although there may still be a lease if no rent paid)
243
Q

Leases > 1. lease or license? > Street v Mountford

A

Exclusive possession

244
Q

Leases > 1. lease or license? > Exclusive possession

A

Street v Mountford

245
Q

Leases > 1. lease or license? > Lace v Chantler

A

Certainty of Duration

246
Q

Leases > 1. lease or license? > Certainty of Duration

A

Lace v Chantler

247
Q

Leases > 1. lease or license? > Ashburn Anstalt v Arnold

A

Rent (although there may still be a lease if no rent paid)

248
Q

Leases > 1. lease or license? > Rent (although there may still be a lease if no rent paid)

A

Ashburn Anstalt v Arnold

249
Q

Leases > 1. lease or license? > Exclusive Possession

A

Occupant has the right to use the property to the exclusion of all others

250
Q

Leases > 1. lease or license? > Exclusive Possession > Street v Mountford

A

Court will look at effect of the agreement, not the label

251
Q

Leases > 1. lease or license? > Exclusive Possession > Court will look at effect of the agreement, not the label

A

Street v Mountford

252
Q

Leases > 1. lease or license? > Exclusive Possession > Antoniades v Villiers

A

Agreements on identical terms, signed on the same day –> were interdependent and meant to be read as one single agreement –> clauses were held to be a sham and the agreement amounted to a lease.
i. Attempts to exclude exclusive possession (EP) must be genuine – if EP clause is a sham, courts will disregard and give effect to what they consider to be the true bargain.
ii. Consider:
• Relationship between occupiers
• Intended use of property
• Nature, extent and mode of accommodation; and
• Whether the Four Unities are present:
o Time
o Title
o Interest
o Possession

253
Q

Leases > 1. lease or license? > Exclusive Possession > Agreements on identical terms, signed on the same day –> were interdependent and meant to be read as one single agreement -> clauses were held to be a sham and the agreement amounted to a lease.

A

Antoniades v Villiers

254
Q

Leases > 1. lease or license? > Exclusive Possession > AG Securities v Vaughan (i)

A

Licence because:

i. Agreements were different, signed on different dates, with different rents  independent from each other (did not confer rights of exclusive possession)
ii. Parties described as owner and licensee; and
iii. Rooms occupied on a rolling basis (nature and purpose of property; and relationship)

255
Q

Leases > 1. lease or license? > Exclusive Possession >
i. Agreements were different, signed on different dates, with different rents –> independent from each other (did not confer rights of exclusive possession)

A

AG Securities v Vaughan

256
Q

Leases > 1. lease or license? > Exclusive Possession > AG Securities v Vaughan

A

i. Agreements were different, signed on different dates, with different rents –> independent from each other (did not confer rights of exclusive possession)

257
Q

Leases > 1. lease or license? > Certainty of Duration > Lace v Chandler

A

Parties must know at the outset the date of the beginning and end of lease

258
Q

Leases > 1. lease or license? > Certainty of Duration > Parties must know at the outset the date of the beginning and end of lease

A

Lace v Chandler

259
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term > s.52/54 LPA 1925

A

(i) Creation – must be expressly created; parties must know from outset the maximum duration of agreement

260
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term >
(i) Creation – must be expressly created; parties must know from outset the maximum duration of agreement

A

s.52/54 LPA 1925

261
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term > Berrisford v Mexfield

A

• Tenancies for life granted to an individual may be converted into 90 year leases by operation of s.149(6) LPA 1925

262
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term >
• Tenancies for life granted to an individual may be converted into 90 year leases by operation of s.149(6) LPA 1925

A

Berrisford v Mexfield

263
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term > Prudential Assurance Co. Ltd v London Residuary Body

A

• Periodic Tenancies will not have certainty of duration unless both parties have the ability to end tenancy by way of notice

264
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term > • Periodic Tenancies will not have certainty of duration unless both parties have the ability to end tenancy by way of notice

A

Prudential Assurance Co. Ltd v London Residuary Body

265
Q

Leases > 1. lease or license? > Certainty of Duration > (a) Fixed Term > Termination

A
  • Automatic – end of lease period
  • Forfeiture – where the lease includes provisions allowing the landlord to prematurely end if the tenant fails to meet obligations
  • Break clause
266
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease

A

i. Lease automatically renews, provided the tenant pays rent and neither side serves notice (Javad v Mohammed Aqil)

ii. Notice = length of period except:
a. annual tenancy = six months;
b. residential tenancy less than four weeks = four weeks
(Protection from Eviction Act 1977)

iii. The landlord must obtain court order to recover possession of premises where the occupier continues to reside there under a lease or license.
(s. 3 Protection from Eviction Act 1977)

267
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease > Javad v Mohammed Aqil

A

i. Lease automatically renews, provided the tenant pays rent and neither side serves notice

268
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease > i. Lease automatically renews, provided the tenant pays rent and neither side serves notice

A

Javad v Mohammed Aqil

269
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease > Protection from Eviction Act 1977

A

ii. Notice = length of period except:
a. annual tenancy = six months;
b. residential tenancy less than four weeks = four weeks

270
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease >

ii. Notice = length of period except:
a. annual tenancy = six months;
b. residential tenancy less than four weeks = four weeks

A

Protection from Eviction Act 1977

271
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease > s.3 Protection from Eviction Act 1977

A

iii. The landlord must obtain court order to recover possession of premises where the occupier continues to reside there under a lease or license.

272
Q

Leases > 1. lease or license? > Certainty of Duration > (b) Periodic Lease >
iii. The landlord must obtain court order to recover possession of premises where the occupier continues to reside there under a lease or license.

A

s.3 Protection from Eviction Act 1977

273
Q

Leases > 1. lease or license? > Rent > Ashburn Anstalt v Arnold and s.205(1)(xxvii) LPA

A

Rent is NOT necessary for a lease
–> ‘whether or not at a rent’
But where rent is paid, will certainly indicate a formal landlord/tenant relationship and may give an indication as to the duration of the lease (for periodic tenancies)

274
Q

Leases > 1. lease or license? > Rent > Rent is NOT necessary for a lease
–> ‘whether or not at a rent’

A

Ashburn Anstalt v Arnold and s.205(1)(xxvii) LPA

275
Q

Leases > 1. lease or license? > If the right is a license

A

• Does not give the tenant proprietary interest  Not bidning
• Is a mere permission for licensee to do something
o Bare Licence: automatically revoked by the death of a licensor or a transfer of his land; it can also be revoked by the licensor at will.
o Contractual Licence: enforceable against the original licensor in accordance with its terms  cannot be revoked until the contractual period has expired

276
Q

Leases > 1. lease or license? > If the right is a license > Bare Licence

A

automatically revoked by the death of a licensor or a transfer of his land; it can also be revoked by the licensor at will.

277
Q

Leases > 1. lease or license? > If the right is a license > Contractual Licence

A

enforceable against the original licensor in accordance with its terms –> cannot be revoked until the contractual period has expired

278
Q

Leases > 2. Formalities > Fixed Term Legal Lease > s.1(1)(b)

A

Capable of being legal provided term of years absolute in possession

279
Q

Leases > 2. Formalities > Fixed Term Legal Lease > Capable of being legal provided term of years absolute in possession

280
Q

Leases > 2. Formalities > Fixed Term Legal Lease > s.52 LPA

A

Must be created by deed

281
Q

Leases > 2. Formalities > Fixed Term Legal Lease > Must be created by deed

282
Q

Leases > 2. Formalities > Fixed Term Legal Lease > s.1 LP(MP)A

A

Deed must be signed, witnessed and delivered as a deed

283
Q

Leases > 2. Formalities > Fixed Term Legal Lease > Deed must be signed, witnessed and delivered as a deed

A

s.1 LP(MP)A

284
Q

Leases > 2. Formalities > Periodic Legal Lease > s.54(2) LPA

A 
Parol Lease exception:
•	In possession;
•	For less than or equal to 3 years;
•	At the best rent; and
•	Without fine
285
Q 
Leases > 2. Formalities > Periodic Legal Lease >
Parol Lease exception:
•	In possession;
•	For less than or equal to 3 years;
•	At the best rent; and
•	Without fine
A

s.54(2) LPA

286
Q

Leases > 2. Formalities > Equitable Lease > Walsh v Lonsdale

A

If formalities for legal leases are not satisfied, will be equitable – equity sees done that which ought to be done.

287
Q

Leases > 2. Formalities > Equitable Lease >

If formalities for legal leases are not satisfied, will be equitable – equity sees done that which ought to be done.

A

Walsh v Lonsdale

288
Q

Leases > 2. Formalities > Equitable Lease > s.1(3) LPA

A

Can be an estate contract

289
Q

Leases > 2. Formalities > Equitable Lease > Can be an estate contract

A

s.1(3) LPA

290
Q

Leases > 2. Formalities > Equitable Lease > s.2 LP(MP)A

A

An estate contract must be:
• In writing;
• Signed by/on behalf of parties; and
• Contain all the agreed terms

291
Q 
Leases > 2. Formalities >  Equitable Lease >
An estate contract must be:
•	In writing;
•	Signed by/on behalf of parties; and
•	Contain all the agreed terms
A

s.2 LP(MP)A

292
Q

Leases > 3. Enforceability > If Registered

293
Q

Leases > 3. Enforceability > If Unregistered

294
Q

Leases > 3. Enforceability > If Registered > Legal Lease more than 7 years > s.27 LRA

A

A registrable disposition per s.27 LRA – must be registered on the property register by date of registration of new owner; if not (Sch 3 para 2)

295
Q

Leases > 3. Enforceability > If Registered > Legal Lease more than 7 years > A registrable disposition – must be registered on the property register by date of registration of new owner; if not (Sch 3 para 2)

296
Q

Leases > 3. Enforceability > If Registered > Legal Lease more than 7 years > Sch 3 Para 2

A

Can be elevated to interests of person in actual occupation and will bind buyer if it is in existence by date of completion of sale if –
• Disclosed the interest if (and when) asked
• Interest is within actual knowledge of buyer; or
• Actual occupation is obvious on a reasonably careful inspection of land.

297
Q

Leases > 3. Enforceability > If Registered > Legal Lease more than 7 years >
Can be elevated to interests of person in actual occupation and will bind buyer if it is in existence by date of completion of sale if –
• Disclosed the interest if (and when) asked
• Interest is within actual knowledge of buyer; or
• Actual occupation is obvious on a reasonably careful inspection of land.

A

Sch 3 Para 2

298
Q

Leases > 3. Enforceability > If Registered > Legal Lease less than 7 years > Sch 3 Para 1

A

Will be an overriding interest under Sch 3 Para 1: must be in existence by date of registration

299
Q

Leases > 3. Enforceability > If Registered > Legal Lease less than 7 years > Will be an overriding interest under Sch 3 Para 1: must be in existence by date of registration

A

Sch 3 Para 1

300
Q

Leases > 3. Enforceability > If Registered > Legal Lease less than 7 years > Sch 12 para 12

A

If created before 13/10/03

301
Q

Leases > 3. Enforceability > If Registered > Legal Lease less than 7 years > If created before 13/10/03

A

Sch 12 para 12

302
Q

Leases > 3. Enforceability > If Registered > Equitable Leases > s.29 LRA

A

IARE: must be registered on charges register at land registry by date of registration of new owner

303
Q

Leases > 3. Enforceability > If Registered > Equitable Leases > IARE: must be registered on charges register at land registry by date of registration of new owner

304
Q

Leases > 3. Enforceability > If Unregistered > Legal Lease

A

Binds the world

305
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease

A

In order to be in writing:
• Must be registered as a C(iv) Land Charge (S.2 LCA)
• Against the owners name (s.3 LCA)
• By date of completion (s.4 LCA)

306
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > s.2 LCA

A

Must be registered as a C(iv) Land Charge

307
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > Must be registered as a C(iv) Land Charge

308
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > s.3 LCA

A

Against the owners name

309
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > Against the owners name

310
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > s.4 LCA

A

By date of completion

311
Q

Leases > 3. Enforceability > If Unregistered > Equitable Lease > By date of completion

312
Q

Leasehold Covenants > Steps

A

Step One: Old or new lease? Consider only the ORIGINAL grant
Step Two: Identify breaches of covenant. By the landlord or tenant?
Step Three: Identify who you are advising and explain
Step Four: What are the relevant remedies?

313
Q

Leasehold Covenants > 1. Old or New? > Old

A

Before 1st Jan 1996

314
Q

Leasehold Covenants > 1. Old or New? > New

A

On or After 1st Jan 1996

315
Q

Leasehold Covenants > 2. Identify Breaches > Types of breach

A
  • Express Covenants (usually these)

- Implied Covenants (are usually LANDLORD covenants) - including quiet enjoyment and repair

316
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants

A
  • Rent;
  • Use; or
  • Not to assign/sublet (alienation)
317
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > s.19 LTA

A

The landlord cannot unreasonably withhold consent

318
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > The landlord cannot unreasonably withhold consent

319
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > s.1 LTA

A

The landlord must give an answer to a request within reasonable time;

320
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > The landlord must give an answer to a request within reasonable time;

321
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > s.22 LT(C)A 1995

A

(for new leases) – the landlord is entitled to require the tenant to enter into an AGA on assignment

322
Q

Leasehold Covenants > 2. Identify Breaches > Express Covenants > (for new leases) – the landlord is entitled to require the tenant to enter into an AGA on assignment

A

s.22 LT(C)A 1995

323
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants

A

Quiet Enjoyment

Repair

324
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > Kenny v Preen

A

Tenant protected from interference with his possessions and enjoyment of the property by the landlord or someone claiming title through the landlord.

325
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment >
Tenant protected from interference with his possessions and enjoyment of the property by the landlord or someone claiming title through the landlord.

A

Kenny v Preen

326
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > Southwark LBC v Mills

A

Regular excessive noise – but doesn’t apply to things done before a grant of tenancy

327
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > Regular excessive noise – but doesn’t apply to things done before a grant of tenancy

A

Southwark LBC v Mills

328
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > s.1(2) Protection from Eviction Act

A

Unlawful for the landlord to deprive the tenant of occupation if does so without belief/reasonable cause to believe the tenant ceased to live there.

329
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > Unlawful for the landlord to deprive the tenant of occupation if does so without belief/reasonable cause to believe the tenant ceased to live there.

A

s.1(2) Protection from Eviction Act

330
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment > s.1(3) Protection from Eviction Act

A

It is only an offence for the landlord to attempt to interfere with the tenant’s peace/comfort if the act is done with the intention of causing the tenant to give up residence.

331
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Quiet Enjoyment >
It is only an offence for the landlord to attempt to interfere with the tenant’s peace/comfort if the act is done with the intention of causing the tenant to give up residence.

A

s.1(3) Protection from Eviction Act

332
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > s.11 LTA 1985

A

The landlord must keep in good repair and working order:
• Structure/Exterior of dwelling house;
• Water, gas, electricity, sanitation installations; and
• Heating and water heating

333
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair >
The landlord must keep in good repair and working order:
• Structure/Exterior of dwelling house;
• Water, gas, electricity, sanitation installations; and
• Heating and water heating

A

s.11 LTA 1985

334
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > Obrien v Robinson

A

To repair the land, the landlord must be notified

335
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > To repair the land, the landlord must be notified

A

Obrien v Robinson

336
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > Quick v Taff Ely BC

A

Must be genuine disrepair, not just an inconvenience (e.g. condensation)

337
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > Must be genuine disrepair, not just an inconvenience (e.g. condensation)

A

Quick v Taff Ely BC

338
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > Warren v Keen

A

Tenants obliged to do reasonable jobs of repair

339
Q

Leasehold Covenants > 2. Identify Breaches > Implied Covenants > Repair > Tenants obliged to do reasonable jobs of repair

A

Warren v Keen

340
Q

Leasehold Covenants > 3. Identify who you are advising and explain

A
  1. Who has the benefit and who can sue?
  2. Who has the burden and who can sue?

T2 cannot be sued by L3 as he is not liable for things that happen after his time in possession

341
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > L1 - T1

A

Burden for duration of lease (privity of contract)

Does not end if the tenant assigns the lease

342
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2

A

Burden for duration of lease, BUT:

  1. The Landlord can only recover if serves notice on T1 within six months of fixed charge (e.g. rent) becoming owed to the landlord by the subsequent tenant
    (s. 17 Landlord and Tenant (Covenants) Act)
  2. If T1 pays the current tenant’s debt, he can seek to recover the amount he has paid from the person who is in breach
    (Moule v Garrett)
  3. Indemnity Covenant – UNREGISTERED LAND – Either express or implied so can always recover money
    (s. 77 LPA)
  4. Indemnity Covenant – REGISTERED LAND – Either express or implied so can always recover money
    (Sch 12 Para 20 LRA)
343
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 > s.17 Landlord and Tenant (Covenants) Act

A

Burden for duration of lease, BUT:
1. The Landlord can only recover if serves notice on T1 within six months of fixed charge (e.g. rent) becoming owed to the landlord by the subsequent tenant

344
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 >
Burden for duration of lease, BUT:
1. The Landlord can only recover if serves notice on T1 within six months of fixed charge (e.g. rent) becoming owed to the landlord by the subsequent tenant

A

s.17 Landlord and Tenant (Covenants) Act

345
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 > Moule v Garrett

A

Burden for duration of lease, BUT:

2. If T1 pays the current tenant’s debt, he can seek to recover the amount he has paid from the person who is in breach

346
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 > Burden for duration of lease, BUT:
2. If T1 pays the current tenant’s debt, he can seek to recover the amount he has paid from the person who is in breach

A

Moule v Garrett

347
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 > s.77 LPA

A

Burden for duration of lease, BUT:

3. Indemnity Covenant – UNREGISTERED LAND – Either express or implied so can always recover money

348
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 >
Burden for duration of lease, BUT:
3. Indemnity Covenant – UNREGISTERED LAND – Either express or implied so can always recover money

349
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 > Sch 12 Para 20 LRA

A

Burden for duration of lease, BUT:

3. Indemnity Covenant – REGISTERED LAND – Either express or implied so can always recover money

350
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T1 - T2 >
Burden for duration of lease, BUT:
3. Indemnity Covenant – REGISTERED LAND – Either express or implied so can always recover money

A

Sch 12 Para 20 LRA

351
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T2

A

Cannot be sued for breaches of his successors

352
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > L3

A

Current Landlord has benefit of the tenant’s covenants (s.141 LPA) and the burden of the original covenant (s.142 LPA) provided that the covenants have ‘reference to the subject matter of the lease’ (P&A Swift)

353
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T3 (Spencer’s Case)

A

Current tenant has benefit of the landlord’s covenants and burden of the tenant’s covenants that ‘touch and concern’ the land (Spencer’s Case)

354
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > T3 > Spencer’s Case

A

Current tenant has benefit of the landlord’s covenants and burden of the tenant’s covenants that ‘touch and concern’ the land (Spencer’s Case)

355
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > synonyms

A

‘Touch and Concern’ and ‘Have reference to the subject matter’ are synonymous

356
Q

Leasehold Covenants > 3. Identify and explain > Old Lease > P&A Swift Investments v Combined English Stores Group Plc

A

Definition of Touch and Concern:

  1. Covenant benefits Landlord/Tenant, only while they own the land;
  2. Covenant affects the nature, quality, mode of use of the land;
  3. Covenant is not expressed as personal; and
  4. Covenants to pay money if covenant is connected with something to be done on that land AND conditions 1-3 are satisfied
357
Q

Leasehold Covenants > 3. Identify and explain > Old Lease >
Definition of Touch and Concern:
1. Covenant benefits Landlord/Tenant, only while they own the land;
2. Covenant affects the nature, quality, mode of use of the land;
3. Covenant is not expressed as personal; and
4. Covenants to pay money if covenant is connected with something to be done on that land AND conditions 1-3 are satisfied

A

P&A Swift Investments v Combined English Stores Group Plc

358
Q

Leasehold Covenants > 3. Identify and explain > New Lease > L1 - T1

A

Can asked to be released when L1 assigns (s.6(2)(a) LT(C)A). If the Landlord is released, he no longer has the benefit of the tenant’s covenants L3.

359
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2

A

Automatic release when T1 assigns (s.5(2)(a) LT(C)A) and ceases to benefit from the Landlord covenants (s.5(2)(b) LT(C)A).

360
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2 > Exception

A

AGA’s (only commercial leases)

361
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2 > s.16 LT(C)A

A

The Landlord can mandate that the tenant must guarantee performance of assignee (s.16 LT(C)A). But once successor signs, AGA ceases to operate.

362
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2 >
The Landlord can mandate that the tenant must guarantee performance of assignee. But once successor signs, AGA ceases to operate.

A

s.16 LT(C)A

363
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2 > Moule v Garrett

A

If T1 had to pay T2’s debt due to AGA, T1 can recover payment from T2

364
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T1 - T2 > If T1 had to pay T2’s debt due to AGA, T1 can recover payment from T2

A

Moule v Garrett

365
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T2

A

If T2 gave an AGA, T2 can be sued for T3’s breach

366
Q

Leasehold Covenants > 3. Identify and explain > New Lease > L3

A

Current Landlord has benefit of the tenant’s covenants (s.3(3)(b) LT(C)A) and the burden of the landlord’s covenant (s.3(3)(a) LT(C)A) provided they are ‘not expressed as personal.’

367
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T3

A

Current Tenant has benefit of the landlord’s covenants (s.3(2)(b) LT(C)A) and the burden of the tenant’s covenant (s.3(2)(a) LT(C)A) provided they are ‘not expressed as personal.’

368
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T3 > s.17 LT(C)A

A

When the landlord is suing a former tenant for outstanding payment/services of current tenant, notice must be served on former tenant within 6 months.

369
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T3 > When the landlord is suing a former tenant for outstanding payment/services of current tenant, notice must be served on former tenant within 6 months.

A

s.17 LT(C)A

370
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T3 > s.22 LT(C)A

A

The landlord can agree with the tenant that the landlord may withhold consent to an assignment under certain conditions (only with commercial property.)

371
Q

Leasehold Covenants > 3. Identify and explain > New Lease > T3 > The landlord can agree with the tenant that the landlord may withhold consent to an assignment under certain conditions (only with commercial property.)

A

s.22 LT(C)A

372
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent)

A
  1. Action for Debt
  2. Commercial Rent Arrears Recovery
  3. Forfeiture
373
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 1. Action for Debt

A

If the tenant has become insolvent, a debt action is not that useful – the landlord may have to look at actions against former tenants.

374
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 1. Action for Debt > S.19 Limitation Act

A

The landlord can sue the tenant for debt, but claim must be made within six years of arrears become due

375
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 1. Action for Debt > The landlord can sue the tenant for debt, but claim must be made within six years of arrears become due

A

S.19 Limitation Act

376
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 1. Action for Debt > s.17 LT(C)A

A

If the landlord is suing former tenant, notice must be served within 6 months

377
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 1. Action for Debt > If the landlord is suing former tenant, notice must be served within 6 months

A

s.17 LT(C)A

378
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 2. Commercial Rent Arrears Recovery

A

Sch 12 Tribunals, Courts and Enforcement Act Outlines new procedure, which abolishes common law distress for recovering rent in cases of commercial emergency.

Recovery is subject to a minimum amount of arrears, which is currently specified as seven days’ rent.

Enforcement agent serves notice that binds the tenant’s goods until debt paid.

379
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 2. Commercial Rent Arrears Recovery > Sch 12 Tribunals, Courts and Enforcement Act

A

Outlines new procedure, which abolishes common law distress for recovering rent in cases of commercial emergency.

380
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 2. Commercial Rent Arrears Recovery > Outlines new procedure, which abolishes common law distress for recovering rent in cases of commercial emergency.

A

Sch 12 Tribunals, Courts and Enforcement Act

381
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > Statute

382
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > s.146 LPA

A

The Landlord can end the lease before the term expires

383
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > The Landlord can end the lease before the term expires

384
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > The Right to Forfeit

A

The right to forfeit arises when:
• There is a condition in the contract stipulating that the landlord may forfeit when a particular event takes place; or
• when there is a forfeiture clause the landlord may enter property after breach of covenant

385
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > Duppa v Mayo

A

The landlord must make a formal demand for rent. the landlord has to turn up before sunset on the last day on which payment is due and demand the payment before the sunsets.
(But in practice, most contracts have a clause that does away with the need for a formal demand.)

386
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > The landlord must make a formal demand for rent. the landlord has to turn up before sunset on the last day on which payment is due and demand the payment before the sunsets.

A

Duppa v Mayo

387
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > The Landlord can forfeit by:

A
  • peaceable re-entry (but not allowed for dwelling-houses - s.2 Protection From Eviction Act)
  • commencing forfeiture proceedings (preferred option to avoid charges under s.6 CLA 1977)
388
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > s.2 Protection From Eviction Act

A

peaceable re-entry is not allowed for dwelling-houses

389
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > peaceable re-entry is not allowed for dwelling-houses

A

s.2 Protection From Eviction Act

390
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > s.6 CLA 1977

A

• commencing forfeiture proceedings (preferred option to avoid charges under s.6 CLA 1977)

391
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > • commencing forfeiture proceedings (preferred option to avoid charges under the act)

A

s.6 CLA 1977

392
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > Under s.146(2) LPA

A

If the tenant repays debt in a timely manner, he will usually be given relief from forfeiture

393
Q

Leasehold Covenants > 4. Remedies > Tenant Breach (rent) > 3. Forfeiture > If the tenant repays debt in a timely manner, he will usually be given relief from forfeiture

A

Under s.146(2) LPA

394
Q

Leasehold Covenants > 4. Remedies > Other breaches

A 
Damages 
Specific Performance 
Injunction 
Forfeiture 
Self-help by means of set- off
395
Q

Leasehold Covenants > 4. Remedies > Other breaches > Damages

A

Same rules as for a contractual breach

396
Q

Leasehold Covenants > 4. Remedies > Other breaches > Specific Performance

A

A discretionary equitable remedy that will only be granted when damages are considered insufficient

397
Q

Leasehold Covenants > 4. Remedies > Other breaches > Injunction

A

Another discretionary remedy that is only used for cases of restrictive covenants

398
Q

Leasehold Covenants > 4. Remedies > Other breaches > Forfeiture

A

As above, that the landlord must serve notice to the tenant under s.146 LPA and tenant may be given relief from forfeiture under s.146(2) LPA

399
Q

Leasehold Covenants > 4. Remedies > Other breaches > Self-help by means of set- off > Taylor v Beale

A

Where landlord fails to perform an obligation tenant will have the right to carry out repairs themselves and then to duct the cost from rent payable

400
Q

Leasehold Covenants > 4. Remedies > Other breaches > Self-help by means of set- off > Where landlord fails to perform an obligation tenant will have the right to carry out repairs themselves and then to duct the cost from rent payable

A

Taylor v Beale

401
Q

Leasehold Covenants > 4. Remedies > Other breaches > Self-help by means of set- off > Lee-Parker v Izzet

A

For this to apply tenant must first notify the landlord of the need to perform these obligations before resorting to set off

402
Q

Leasehold Covenants > 4. Remedies > Other breaches > Self-help by means of set- off > For this to apply tenant must first notify the landlord of the need to perform these obligations before resorting to set off

A

Lee-Parker v Izzet

403
Q

Freehold Covenant > Steps

A

Step One: read the information carefully. Then draw an annotated diagram showing the various events and benefitted/burdened land
Step Two: What types of covenant exist?
Step Three: Identify the breaches and who can be sued
Step Four: who can sue? Normally the claimant is an owner of benefitted land (i.e. covenantee)
Step Five: Identify who has burden and benefit
Step Six: Remedies

404
Q

Freehold Covenant > 2. What types of covenant exist? > Positive

A

Require the covenantor to do something

405
Q

Freehold Covenant > 2. What types of covenant exist? > Restrictive

A

Require the covenantor not to do something

406
Q

Freehold Covenant > 2. What types of covenant exist? > difference between positive and negative covenants

A

Distinction is in substance and not form

407
Q

Freehold Covenant > 2. What types of covenant exist? > ‘Touch and Concern’

A

Covenant touches and concerns the land when it enhances the enjoyment of one parcel of real property by burdening the enjoyment of another

408
Q

Freehold Covenant > 4. Who can sue? > State

A

The Claimant can consider suing X, as original covenantor, or Y as successor Covenantor. Y can be sued if the claimant has the benefit of the covenants and if Y has the burden of the covenants.

409
Q

Freehold Covenant > 5.Identify burden and benefit

A
  1. The Benefit and Burden MUST match, i.e. both in common law, or both in equity.
  2. Then consider if the benefit and burden has passed in EQUITY
410
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: > s.136 LPA

A

There has been EXPRESS ASSIGNMENT

411
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: > There has been EXPRESS ASSIGNMENT

412
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: > Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board and Swift Investments v Combines English Stores Group (leasehold)

A

Even if not, benefit can pass AUTOMATICALLY. Conditions:
1. The covenant touches and concerns covenantee’s land – must show that covenant affects mode of occupation or value of the land and is not personal.

413
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: >
Even if not, benefit can pass AUTOMATICALLY. Conditions:
1. The covenant touches and concerns covenantee’s land – must show that covenant affects mode of occupation or value of the land and is not personal.

A

Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board and Swift Investments v Combines English Stores Group (leasehold)

414
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: > Smith and Snipes

A

Even if not, benefit can pass AUTOMATICALLY. Conditions:

2. Original covenantee and claimant had legal estate;

415
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: >
Even if not, benefit can pass AUTOMATICALLY. Conditions:
2. Original covenantee and claimant had legal estate;

A

Smith and Snipes

416
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: > s.78 LPA 1925

A

Even if not, benefit can pass AUTOMATICALLY. Conditions:

3. Statutory (deemed) annexation

417
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The benefit WILL pass if: >
Even if not, benefit can pass AUTOMATICALLY. Conditions:
3. Statutory (deemed) annexation

A

s.78 LPA 1925

418
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > Austerberry v Oldham Corpn

A

GENERALLY NO

419
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > GENERALLY NO

A

Austerberry v Oldham Corpn

420
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > s.79 LPA

A

No, because of:

  1. Privity of Contract
  2. Original Covenantor remains liable (s.79 LPA)
421
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > BUT Consider enforcement mechanisms such as:

A
  1. A chain of indemnity covenants; or
  2. A mutual benefit and burden rule (Halsall v Brizell and Wilkinson & others v Kerdene Ltd)
    Provided burden in some way relates to benefit conferred (Rhone v Stephens)
422
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > Halsall v Brizell and Wilkinson & others v Kerdene Ltd

A
  1. A mutual benefit and burden rule
423
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > 2. A mutual benefit and burden rule

A

Halsall v Brizell and Wilkinson & others v Kerdene Ltd

424
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > Rhone v Stephens

A

[2. A mutual benefit and burden rule]

Provided burden in some way relates to benefit conferred

425
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at COMMON LAW? > The burden WILL pass to successor covenantor if: > [2. A mutual benefit and burden rule]
Provided burden in some way relates to benefit conferred

A

Rhone v Stephens

426
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The benefit WILL pass if:

A

The covenant touches and concerns the land of the covenantee; and
One of the following applies:
1. Express assignment (s.136 LPA); or
2. Original parties intended the benefit to run –
• Express annexation (check wording of transfer document); or
• Statutory (deemed) annexation (s.78 LPA (Federated Homes Ltd v Mill Lodge Properties Ltd))

427
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The benefit WILL pass if: > s.136 LPA

A
  1. Express assignment
428
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The benefit WILL pass if: > 1. Express assignment

429
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The benefit WILL pass if: > s.78 LPA (Federated Homes Ltd v Mill Lodge Properties Ltd)

A

• Statutory (deemed) annexation

430
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The benefit WILL pass if: > • Statutory (deemed) annexation

A

s.78 LPA (Federated Homes Ltd v Mill Lodge Properties Ltd)

431
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The Burden WILL pass to successor covenantor if > Tulk v Moxhay

A

YES, if:

i. Covenant is restrictive
ii. Covenant touches and concerns the covenantee’s land (Apply Swift Investments)
iii. Original parties intended burden to run –
1. Express wording; or
2. Deemed intention (s.79 LPA); and
iv. Covenant is correctly registered
1. Registered land: IARE, so enter a notice on Charges Register before date of registration of new purchaser (ss.29 and 32 LRA)
2. Unregistered Land: register as Class D(ii) Land Charge before date of completion of sale

432
Q

Freehold Covenant > 5.Identify burden and benefit > Has the benefit and burden passed at EQUITY? > The Burden WILL pass to successor covenantor if > N.B.

A

Pre 1925 covenants will bind all except Equity’s Darling

433
Q

Freehold Covenant > 6. Remedies > Common Law

A

Damages only against an original covenantor, even if he no longer owns the land.

434
Q

Freehold Covenant > 6. Remedies > Equity

A
  • Injunction/Specific performance for breach of restrictive covenant against the current owner of the land (equity may award damages in Lieu
  • For a positive covenant the only option is to sue the original covenantor for damages
435
Q

Freehold Covenant > A covenant can be discharged by the following:

A

Express release
Common Ownership
s.84 LPA (Re Vince’s Application)
Breach insurance

436
Q

Freehold Covenant > Discharging a Covenant > Express release

A

The covenantee of a restrictive covenant can agree to the modification or release of a covenant through a deed

437
Q

Freehold Covenant > Discharging a Covenant > Common Ownership

A

If the burdened and benefitted land come into the same ownership, the covenant is extinguished.

438
Q

Freehold Covenant > Discharging a Covenant > s.84 LPA (Re Vince’s Application)

A

By application to the Lands Tribunal e.g. if the covenantee cannot be located or refuses to release/modify covenant

439
Q

Freehold Covenant > Discharging a Covenant > Breach insurance

A

The covenantor will be able to recover any loss incurred by the enforcement of his breach

440
Q

Freehold Covenant > Proposals for reform

A

It has been recognised that many aspects of the law relating to freehold covenants are now outdated and cause difficulty. The Law Commission Report, ‘Making Land Work: Easements, Covenants and Profits à Prendré (Law Com No 327) proposes a more coherent scheme of covenants, together with easements.

441
Q

Easements > Re Ellenborough Park

A
  1. Is there a dominant tenement (parcel of land with benefit of easement), and a servient tenement (with burden)?
  2. Does the easement accommodate (benefit) the dominant tenement?
  3. Are the dominant and servient tenements owned and occupied by different people?
  4. Is the right capable of forming the subject matter of a grant?
442
Q

Easements > 1. Is there a dominant tenement (parcel of land with benefit of easement), and a servient tenement (with burden)? > Rangeley v Midland Railway Co

A

There cannot be an easement where an owner of land grants a right to a non-owner of land, instead this is a license. ‘There can be no such thing as an easement in gross’

443
Q

Easements > 1. Is there a dominant tenement (parcel of land with benefit of easement), and a servient tenement (with burden)? > There cannot be an easement where an owner of land grants a right to a non-owner of land, instead this is a license. ‘There can be no such thing as an easement in gross’

A

Rangeley v Midland Railway Co

444
Q

Easements > 2. Does the easement accommodate (benefit) the dominant tenement? > Re Ellenborough Park

A

Must be able to show the right is connected with the normal enjoyment of the land which is a question of fact

445
Q

Easements > 2. Does the easement accommodate (benefit) the dominant tenement? > Must be able to show the right is connected with the normal enjoyment of the land which is a question of fact

A

Re Ellenborough Park

446
Q

Easements > 2. Does the easement accommodate (benefit) the dominant tenement? > Bailey v Stephens

A

‘A right of way over land in Northumberland cannot accommodate land in Kent’

447
Q

Easements > 2. Does the easement accommodate (benefit) the dominant tenement? > ‘A right of way over land in Northumberland cannot accommodate land in Kent’

A

Bailey v Stephens

448
Q

Easements > 3. Are the dominant and servient tenements owned and occupied by different people?

A
  • Lease arrangements count

* If own person owns and occupies both pieces of land, right may be a quasi-easement

449
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Copeland v Greenhalf

A

Owner of servient tenement must not be deprived of too many of his rights, i.e. must not effectively exclude owner from own land

450
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Owner of servient tenement must not be deprived of too many of his rights, i.e. must not effectively exclude owner from own land

A

Copeland v Greenhalf

451
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Dalton v Angus (light)

A

Right to light? Yes, to one’s windows. (But only in relation to the erection of a building in very close proximity)

452
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Right to light? Yes, to one’s windows. (But only in relation to the erection of a building in very close proximity)

A

Dalton v Angus

453
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Dalton v Angus (view)

A

Right to a view? No – imposes a burden on a very large and indefinite area

454
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Right to a view? No – imposes a burden on a very large and indefinite area

A

Dalton v Angus

455
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Hunter v Canary Wharf Limited

A

Right to TV Reception? No, would impose immense burden on people building for miles around

456
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Right to TV Reception? No, would impose immense burden on people building for miles around

A

Hunter v Canary Wharf Limited

457
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd

A

Right to park? Yes, question of degree, depends if would leave servient owner without any reasonable use of this land

458
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Right to park? Yes, question of degree, depends if would leave servient owner without any reasonable use of this land

A

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd

459
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Phipps v Pears

A

Courts are strict on negative easements – must be viewed with caution as may prevent neighbour from enjoying his land to the full

460
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Courts are strict on negative easements – must be viewed with caution as may prevent neighbour from enjoying his land to the full

A

Phipps v Pears

461
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Colls v Home and Colonial Stores Ltd

A

Right to light is a negative easement and is limited to specific apertures rather than light in general

462
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Right to light is a negative easement and is limited to specific apertures rather than light in general

A

Colls v Home and Colonial Stores Ltd

463
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Bachelor v Marlow

A

Would the servient owner retain possession, and subject to a reasonable exercise of the right in question, maintain control of the servient land

464
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Would the servient owner retain possession, and subject to a reasonable exercise of the right in question, maintain control of the servient land

A

Bachelor v Marlow

465
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd.

A

Class of potential easements is not closed (e.g. a right to use a golf course may be an easement.)

466
Q

Easements > 4. Is the right capable of forming the subject matter of a grant? > Class of potential easements is not closed (e.g. a right to use a golf course may be an easement.)

A

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd.

467
Q

Easements > valid creation

A

In order to ascertain whether there has been a valid creation of an easement, consider whether there has been a sale of part.

468
Q

Easements > valid creation > NO sale of part

A
  1. Express creation (in a separate deed of grant or in writing)
  2. Acquisition by Prescription
469
Q

Easements > valid creation > NO sale of part > 1. Express creation

A
  • Express grant – servient owner grants right over his own land
  • Express reservation – in conveying land to another, owner saves or reserves an easement in it (seller/testator)
  • Both must satisfy s.1(2)(a) LPA 1925; s.52 LPA; and s.1 LP(MP)A 1989.
470
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription

A

• Common Law (weak) and doctrine of lost modern grant – conditions:
o Use is:
- Unchallenged by land owner;
- Exercised openly; and
- Without permission
o User is a fee simple owner against a fee simple owner
o Use must be continuous for a requisite period of time

471
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription

A

Common Law prescription

Doctrine of Lost Modern Grant

Prescription Act 1832

472
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Common Law prescription

A

Where 20 years’ use, there is a presumption or use since time immemorial (1189). But this is easily rebuttable.

473
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Doctrine of Lost Modern Grant

A

Where 20 years’ use, assumed that there has been a deed granting the right, but lost (Simon v Dobson). The doctrine is particularly useful where 20 years’ use is established and there’s been a break in the use (Mills and another v Silver and Others).

474
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Doctrine of Lost Modern Grant > Simon v Dobson

A

Doctrine of Lost Modern Grant: Where 20 years’ use, assumed that there has been a deed granting the right, but lost.

475
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Doctrine of Lost Modern Grant > Doctrine of Lost Modern Grant: Where 20 years’ use, assumed that there has been a deed granting the right, but lost.

A

Simon v Dobson

476
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Doctrine of Lost Modern Grant > Mills and another v Silver and Others

A

Doctrine of Lost Modern Grant: The doctrine is particularly useful where 20 years’ use is established and there’s been a break in the use

477
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Doctrine of Lost Modern Grant > Doctrine of Lost Modern Grant: The doctrine is particularly useful where 20 years’ use is established and there’s been a break in the use

A

Mills and another v Silver and Others

478
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Prescription Act 1832 > s.2 Prescription Act 1832

A

Where right claimed is in use for 20 years (or 40 to be absolute and indefeasible) – unless enjoyment depends on written consent)

479
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Prescription Act 1832 > s.3 Prescription Act 1832

A
  • Right to light: if 20 years’ use uninterrupted and without written consent, absolute and indefeasible right to light (only in respect of buildings)
  • Must show access of light and that use is being made of it
  • Amount of light entitled, ‘sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment… or for the beneficial use and occupation (of building)’ (City of London Brewery Co v Tennant). Question for courts, case specific, must take into account the burden on the servient land.
480
Q

Easements > valid creation > NO sale of part > 2. Acquisition by Prescription > Prescription Act 1832 > s.4 Prescription Act 1832 (qualifies s.2)

A
  • No right to an easement arises until court action brought to claim it.
  • 20/40 years’ use must be continuous until date of the court action.
  • But interruptions ignored unless person claiming easement allows them to continue for a year after becoming aware of them and of any person responsible for them.
481
Q

Easements > valid creation > IS sale of part

A
  1. Express creation (within the sale of part deed)
  2. Acquisition by Prescription
  3. Implication on a sale of part (create a legal easement, as implied into the deed for sale of part).
482
Q

Easements > valid creation > IS sale of part > Express Creation

A
  1. Express creation (within the sale of part deed)
    • Express grant – servient owner grants right over his own land
    • Express reservation – in conveying land to another, owner saves or reserves an easement in it (seller/testator)
    • Both must satisfy s.1(2)(a) LPA 1925; s.52 LPA; and s.1 LP(MP)A 1989.
483
Q

Easements > valid creation > IS sale of part > 2. Acquisition by Prescription

A

Same as if there were not a sale of part

484
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part

A

Create a legal easement, as implied into the deed for sale of part. BUT – who is claiming the easement, the buyer or the seller?

485
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Sellers and buyers of land may exercise > Wong v Beaumont Property Trust Ltd

A

Easements of necessity – arises where, without it, no use can be made of the land

Easements implied due to the common intention of the buyer and seller at the time of sale. Reasonable contemplation of parties at the time of the contract.

486
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Sellers and buyers of land may exercise > Easements of necessity

A

arises where, without it, no use can be made of the land

Wong v Beaumont Property Trust Ltd

487
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Sellers and buyers of land may exercise > Easements implied due to the common intention of the buyer and seller at the time of sale.

A

Easements implied due to the common intention of the buyer and seller at the time of sale. Reasonable contemplation of parties at the time of the contract.

Wong v Beaumont Property Trust Ltd

488
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Buyers only may exercise

A

• Easements created under the rule in Wheeldon v Burrows. On a sale of part, buyer will get easement if right is:
o Continuous and apparent, i.e. some feature (with a degree of permanence) must be present on the servient tenement which would be apparent on inspection
o Necessary for reasonable enjoyment of the land (Ward v Kirkland); and
o Being used as a quasi-easement by seller for the benefit of part of land being sold (quasi easement = right was being used by previous owner prior to sale of part under circumstances of unity of occupation).
• Easements created under s.62 LPA 1925
Conditions for creation:
i. Conveyance of part (sale of freehold of part or legal lease of part)
ii. Before conveyance of part, there was a license/permission capable of being an easement; and
iii. There was (generally) diversity of occupation at the time of sale of part. (N.B. Key point of distinction between s.62 and Wheeldon v Burrows).

489
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Buyers only may exercise > Wood v Waddington

A

i. There was (generally) diversity of occupation at the time of sale of part. (N.B. Key point of distinction between s.62 and Wheeldon v Burrows).
N.B. High Court recently held that this is not essential. Key question is whether right is enjoyed with the land

490
Q

Easements > valid creation > IS sale of part > 3. Implication on a sale of part > Buyers only may exercise > Two effects:

A

a) Implies words into conveyance  existing easements automatically transferred to buyer; and
b) Under Wright v Macadam may transform license/permission into legal easement.

491
Q

Easements > Enforceability against third parties

A

• Where Dominant land sold – benefit of easement will pass automatically under s.62 LPA 1925
• Where Servient land sold – whether burden of easement passes depends on whether easement is:
o Legal or equitable; and
o Registered/unregistered title

492
Q

Easements > Enforceability against third parties > Expressly granted easements > Legal

A

(a) Conditions to be legal
i. Duration must be equivalent to a freehold or leasehold estate (forever or for a fixed period of time) s.1(2)(a) LPA 1925
ii. Must be created by deed (s.52 LPA) – criteria for a deed see s.1 LP(MP)A 1989; and
iii. If land is REGSTERED – registerable disposition -> required to be registered (s.27(2)(d) LRA 2002) – not legal otherwise (s.27(1) LRA 2002)
(b) To bind purchaser –
i. If REGISTERED land:
1. Register of the title of the servient land – entry to appear in the charges register of the title to the servient tenement;
2. Register of title of the dominant land – entry to be made in the property register;
3. If not registered  equitable.
ii. If land is UNREGISTERED – legal interest binds the world

493
Q

Easements > Enforceability against third parties > Expressly granted easements > Equitable

A

(a) if duration (see s.1(2)(a) LPA 1925) not satisfied, must be created by deed/in signed written document (s.53(1)(a) LPA 1925)
(b) If not by deed, must satisfy formalities for valid estate contract (s.2 LP(MP)A 1989) and will still be an equitable right. (Walsh v Lonsdale)
(c) To bind the purchaser:
i. If REGISTERED land – an IARE  requires registration, protect by an entry (a notice) on the register of servient title before purchaser registered as new owner
ii. If UNREGISTERED land – a Class D(ii) land charge  register easement on Land Charges Register against name of servient owner by completion of sale.

494
Q

Easements > Enforceability against third parties > For implied and prescriptive legal easement (both are legal easements)

A

• If created after 2003 (Sch 3 para 3 LRA 2002) – will be overriding interest, provided either:
a) Buyer of servient land knew about it;
b) Would have been obvious to buyer of servient land on a reasonably careful inspection of the land; or
c) Person claiming easement can prove has exercised his/her right in the year prior to sale to buyer of servient land.
• If created between 13 October 2003 and 13 October 2006 – overriding under Sch 3 para 3 LRA 2002 (no ned to satisfy consitions)
• If created before 2003: Sch 12, para 9 LRA 2002 – will be overriding interest

495
Q

Easements > Enforceability against third parties > For implied and prescriptive legal easement (both are legal easements) > • If created after 2003

A

• If created after 2003 (Sch 3 para 3 LRA 2002) – will be overriding interest, provided either:

a) Buyer of servient land knew about it;
b) Would have been obvious to buyer of servient land on a reasonably careful inspection of the land; or
c) Person claiming easement can prove has exercised his/her right in the year prior to sale to buyer of servient land.

496
Q

Easements > Enforceability against third parties > For implied and prescriptive legal easement (both are legal easements) > • If created between 13 October 2003 and 13 October 2006

A

overriding under Sch 3 para 3 LRA 2002 (no ned to satisfy conditions)

497
Q

Easements > Enforceability against third parties > For implied and prescriptive legal easement (both are legal easements) > • If created before 2003

A

Sch 12, para 9 LRA 2002 – will be overriding interest

498
Q

Easements > Proposal for reform – easements

A

On 8 June 2011, the Law Commission published a report on reform of the law of easements and covenants. The proposals relating to easements include replacement of the current method of implication of easements with a single statutory principle that easements will be implied where they are necessary for the reasonable use of the land at the time of the transaction. The paper also proposes creating a single statutory scheme of prescription to replace the current methods.

499
Q

Mortgages > Steps

A 
Step One: Define
Step Two: Creation of legal mortgage 
Step Three: Remedies
Step Four: Protection of mortgages – how does the mortgagee protect the mortgage. Guaranteeing (i) that it will bind future purchasers of the land; and (ii) that it has priority over later mortgages?
Step Five: Priority rules
500
Q

Mortgages > Define

A

An interest in land given as security for a loan

501
Q

Mortgages > Creation of a Legal Mortgage

A

To create a legal mortgage, the following must be satisfied:
• Interest capable of being legal (s.1(2) LPA)
• Must be created by deed (s.52(1) LPA)
• Signed, witnessed and delivered as a deed (s.1 LP(MP)A)
• Registerable disposition, therefore, must be entered in the charges register of the title (s.27 LRA)

502
Q

Mortgages > Remedies > Possession

A

Mortgagee can either (1) take possession in order to sell the property or (2) intercept the income from it.

503
Q

Mortgages > Remedies > Possession > White v City of London Brewery

A

• Must manage the property with due diligence. If they fail to do so, they must account to the mortgagor for the income he did and would have received had due diligence been taken.

504
Q

Mortgages > Remedies > Possession > • Must manage the property with due diligence. If they fail to do so, they must account to the mortgagor for the income he did and would have received had due diligence been taken.

A

White v City of London Brewery

505
Q

Mortgages > Remedies > Possession > Four Maids Ltd v Dudley Marshall (Properties) Ltd

A

• Lenders can take possession of property as soon as the mortgage is complete

506
Q

Mortgages > Remedies > Possession > • Lenders can take possession of property as soon as the mortgage is complete

A

Four Maids Ltd v Dudley Marshall (Properties) Ltd

507
Q

Mortgages > Remedies > Possession > Taking physical possession

A

o No violence or threat of violence under the Criminal Law Act 1977
o Court can adjourn possession proceedings if a mortgagor brings a major claim under s.36 Administration of Justice Act 1970: It must be established that a mortgagor can repay in reasonable time.
o But – mortgagee does not have to bring court proceedings to exercise his right to possession (Ropaigealach v Barclays), in which case, s.36 AJA is bypassed, so the mortgagor’s only protection will be the Criminal Law Act.

508
Q

Mortgages > Remedies > Possession > Taking physical possession > Horsham Properties Group Ltd v Clark and Beech

A

N.B. It is not possible for mortgagor to claim under Article 8 Human Rights Act 1998 (right to respect for private and family life) when mortgagor has stopped paying mortgage to mortgagee.

509
Q

Mortgages > Remedies > Possession > Taking physical possession > N.B. It is not possible for mortgagor to claim under Article 8 Human Rights Act 1998 (right to respect for private and family life) when mortgagor has stopped paying mortgage to mortgagee.

A

Horsham Properties Group Ltd v Clark and Beech

510
Q

Mortgages > Remedies > Appointing a Receiver

A

Mortgagee (Lender) can appoint a receiver to collect and redirect the income from the property.

511
Q

Mortgages > Remedies > Appointing a Receiver > • A mortgagee can appoint a receiver if:

A

(a) Mortgage was created by deed (s.101(1)(iii) LPA) – the ability for the mortgagee to appoint a receiver is implied into every deed)
(b) Power has arisen, i.e. the legal date of redemption must have passes (s.101 LPA); and
(c) Become exercisable under s.103 LPA:
i. The lenders have served noticed on the borrowers requiring repayment of the loan, borrowers have failed to comply for 3 months.
ii. Interest due under the mortgage is two months in arrears; OR
iii. The borrowers have breached a term under the mortgage deed.

512
Q

Mortgages > Remedies > Appointing a Receiver > s.109(1)

A

• The receiver must be appointed in writing

513
Q

Mortgages > Remedies > Appointing a Receiver > • The receiver must apply the income as follows:

A

a) Outgoings on the property
b) Interest on any prior mortgages
c) Insurance premiums on the property and his own costs;
d) Interest on the current mortgage;
e) Capital on the current mortgage (if directed to do so in writing by the mortgagee); and
f) The balance to the mortgagor

514
Q

Mortgages > Remedies > Power of Sale

A

Sell the property to use the proceeds to pay back the sum owed by the mortgage

515
Q

Mortgages > Remedies > Power of Sale > s.101 LPA

A
  • Implied power of sale if mortgage was created by deed

* The power must have arisen, i.e. legal date of redemption must have passed

516
Q

Mortgages > Remedies > Power of Sale > s.103 LPA

A

• The power must be exercisable:

i. The lenders have served noticed on the borrowers requiring repayment of the loan, borrowers have failed to comply for 3 months.
ii. Interest due under the mortgage is two months in arrears; OR
iii. The borrowers have breached a term under the mortgage deed.

517
Q

Mortgages > Remedies > Power of Sale > Cuckmere Brick Co Ltd v Mutual Finance

A

• Lenders have the following duties when exercising their power of sale:
o Act in good faith; and
o Take reasonable care to obtain the true market value

518
Q

Mortgages > Remedies > Power of Sale >
• Lenders have the following duties when exercising their power of sale:
o Act in good faith; and
o Take reasonable care to obtain the true market value

A

Cuckmere Brick Co Ltd v Mutual Finance

519
Q

Mortgages > Remedies > Power of Sale > s.105 LPA

A

• Seller must apply the proceeds as follows:

(a) Any prior interests/mortgages;
(b) Mortgagee’s (lender) expenses on sale;
(c) Mortgagee’s (lender) own mortgage;
(d) Pay off mortgages over which the selling mortgage has priority (and notice); and
(e) Any residue is due to the mortgagor

520
Q

Mortgages > Remedies > Power of Sale > s.104(1) LPA

A

• Under s.104(1) LPA, the buyer will take the whole estate. Is he bound by any third-party interests? He will take:
o Free from interests that selling mortgagee had priority over; but
o Subject to any interests that took priority over the selling mortgagee.

521
Q

Mortgages > Remedies > Foreclosure

A

(Basically very rare, so don’t have to worry too much about it)
• The effect of foreclosure is to vest absolute ownership (the borrower retains no equitable interest) of the borrower’s property in the lenders.
• The right to foreclosure arises when (a) date of redemption passes, or (b) mortgagor (borrower) breaches a term of the mortgage.
• BUT under s.91(2) LPA any person interested either in the mortgage or in the right of redemption can request the court to make an order for sale instead (see above).

522
Q

Mortgages > Remedies > Debt Action

A
  • Rare, given that if borrower has failed to meet mortgage payments it is unlikely, they can comply with a court order for debt payment.
  • Available only after the date for redemption has passed
  • Barred under the Limitation Act to 12 years from the date the payment became due.
523
Q

Mortgages > Protection of Mortgages

A

how does the mortgagee protect the mortgage. Guaranteeing (i) that it will bind future purchasers of the land; and (ii) that it has priority over later mortgages?

524
Q

Mortgages > Protection of Mortgages > For registered land

A
  • Legal mortgages are registerable dispositions under s.27 LRA – must be registered against the title to make it binding on purchaser or later mortgagee.
  • If not registered, mortgage will not be binding
525
Q

Mortgages > Protection of Mortgages > For UNregistered land

A

First mortgage
• First mortgage can take possession of title deeds (s.85(1) LPA) – if mortgagee has title deeds.
Later mortgages
• Subsequent mortgages are not protected by deposit of title deeds. They are puisne mortgages and are registerable against the mortgagor’s name as Class C(i) Land charge.
• If not registered, not binding.

526
Q

Mortgages > Priority Rules

A
  1. Establish types of interest – lease, mortgage, easement etc
  2. Have these interests been created using the correct formalities?
  3. Create a timeline to establish whether interest(s) was created before/after mortgage.
  4. Rights created after the date of mortgage will not bind the mortgagee (lender).
    a. Priority between mortgage and other proprietary interest
    • Governed by s.104(1) LPA 1925 the mortgagee is freed from all proprietary interests made after the mortgage but held subject to those made correctly before the mortgage
    • In the context of LRA 2002, ‘purchaser’ includes mortgagee
    • Was the interest created before the mortgage? If so, not binding on the mortgagee.
    • Was the interest created before the mortgage? If so, consider enforceability rules for registered or unregistered land (WS2&3), treating mortgagee as purchaser
    • Consider Williams & Glyde Bank Ltd v Boland (trust interest overreaching by mortgagee); Lloyds Bank v Rosset for why overriding interests are usually unlikely to bind the first mortgagee (essentially, occupation usually occurs after completion of the sale).
    b. Priority between multiple mortgages
    • The mortgagee that ranks first gets repaid in full before considering the mortgagee second in priority
    • S.48 LRA – the order of priority depends on the order in which they are registered on the register.
    • If the mortgage has not been registered, then the mortgage only takes effect in equity. Under s.29 LRA, an equitable mortgage is an IARE –> must be registered to be binding.

Land Law (1 decks)

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