Definitions and Basics Flashcards
What is real property concerned with?
Rights, interests and obligations which can exist over land
What are the different states of rights and duties?
Created, enforced, assigned, extinguished
What is a leasehold interest?
landlord tenant relationship
Is a leasehold interest realty or personalty?
Personalty in law, but they are also recognised as interests in land, so they’re called chattels real
Where is Land defined in statute?
Law of Property Act 1925
What’s an example of a corporeal hereditament?
Physical items like land, buildings, minerals
What’s an example of incorporeal hereditament?
Rights and interests like easements, rent, covenants
If you have an easement over land belonging to another, what’s another term for that?
A right or interest in the land
Does a beneficiary of a trust of land have an interest in the land?
Yes, although it may not be a legal interest. It is equitable.
Rights are recognized…
At law
Interests are recognized…
In equity
Chattel is otherwise known as…
Personal property
If an item is attached to the land, prima facie it’s…
A fixture
What are the two factors for determining fixture vs chattel
(1) Degree of annexation (2) Purpose of annexation
All freehold land in England and Wales is said to be held directly of the Crown in …
Socage tenure
What are the two legal estates?
(1) Fee simple (freehold) and (2) Term of years absolute (leasehold)
Why was the concept of commonhold land introduced?
To better understand/support blocks of flats/interdependent properties
Land rights can be both…
tangible and intangible
What is an interest in land law?
A right exercised in relation to the land belonging to another
What are examples of legal interests?
Legal easement, mortgage
What are examples of equitable interests?
Interests arising under a trust, interests under contracts to create/transfer legal estates or interests (like when you buy a home and you have equitable interest in the home before legal interest catches up)
What’s the term for a fee simple estate
Perpetual in principle
If a person dies intestate, without next of kin, who inherits their property
The Crown
Is a lease a property right?
Yes
What are the two types of leases?
Fixed term and periodic tenancies
Can you create a lease for an indefinite period of time?
No, BUT you can set forfeiture clause which can allow you to break the lease before the term’s end
What’s a periodic tenancy?
Lease for one period, which extends automatically until landlord or tenant gives notice
In a mortgage, the role of the bank is as…
Mortgagee (bank lends the money, fee simple owner grants the mortgage)
What’s a restrictive covenant?
Promise by one landowner in favour of a neighbouring landowner that they won’t do something on their land.
In a restrictive covenant or easement, what are the roles?
Land restricted is servient (for easements, also appurtenant), land benefitted is dominant
What is an easement?
A right of one landowner to make use of another nearby piece of land for the benefit of his own land
What is a profit?
A right to go on someone else’s land and remove from that land something that exists there naturally, like minerals, or hunting
Is a profit dominant or servient?
Frequently appears in gross/separate right not attached to dominant land
What did the Family Law Act 1996 introduce?
If a couple is ceremonially or civilly married, and one spouse has sole title to the home, the other spouse has statutory right to occupy the home (home rights)
If a married couple buys a home together, what’s going on in that situation?
Both partners have home rights, and they both have a constructive trust interest in the home provided they made a substantial financial contribution
How is an option different from a right of first refusal?
An option is a valuable right provided in exchange for consideration; a right of first refusal is just an opportunity to refuse something
What are the two systems of conveyancing?
Unregistered and registered
What’s unregistered conveyancing?
Title to land is provided by deeds
What’s the downside of unregistered conveyancing?
Third party rights or interests aren’t conclusive through deed (they’re not legal interests)
If you have a 3P interest in an unregistered conveyance, what do you do?
Register through public notice
If you fail to register a 3P interest in an unregistered conveyance, what happens
Even if purchaser knows about the interest, the interest won’t be enforceable
What is registered conveyancing?
Whole title to the land, incl most 3P interests, is registered (now compulsory for new purchases)
What are the two stages in conveyance?
(1) Exchange of contracts (equitable interest) (2) Completion (legal interest)
What’s the only contract that must be made in writing?
Sale of land! LPMPA
Any interest that isn’t one of the 5 legal interests is at best…
Equitable
What’s the maximum number of trustees of the legal estate?
Four
Is there a limit to the number of beneficial owners of land?
No
What are the two forms of co-ownership?
Joint tenancy and tenancy in common
What is the co-ownership status of legal estate?
ALWAYS joint tenancy
What is the co-ownership status of beneficial estate?
joint tenancy or tenants in common
Can severance ever operate on the legal estate?
No
What is severance?
The process of separating the share of a joint tenant so that concurrent ownership will continue but right of survivorship will no longer apply.
What can rebut the presumption of joint tenancy?
(1) Parties use words of severance (2) One or more of the four unities is absent (3) Unequal contributions to purchase price (4) Purchase of property for business purposes
What are the four unities?
Authority: Common law concept
(1) Interest (2) Possession (3) Title (4) Time
How are shares determined in a tenancy in common?
If there’s an express trust, they can define proportion of shares. If there isn’t an express trust, the initial presumption is that shares are divided equally (Goodman, Bedson)
What’s the main distinguishing feature of tenancy in common?
Each co-owner has right to distinct and identifiable share
Can will or intestacy supersede right of survivorship?
No
What’s the main distinguishing feature of joint tenancy?
right of survivorship
What are the three necessary elements of a formal severance?
Has to be received by all other joint tenants (ie legal owners/trustees) AND wording must effect a severance (Goodman) AND it must be effective immediately (Harris)
Does divorce by itself sever joint tenancy?
No
Harris v Goddard: divorce and request for severance didn’t have immediate effect, so JT wasn’t severed
What are the three methods to severing joint tenancy?
Authority: Williams v Hensman
(1) Act of any one persons interested operating upon their own share
(2) Mutual agreement
(3) Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting tenancy in common
Does a mortgage operate as a severance?
Yep (Bedson)
Does a power of appointment operate in law or equity?
Equity
Define bankruptcy
liquidation by arrangement; or a corporation winding
Define conveyance
mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release AND every other assurance of property or of an interest therein by any instrument except a will
Define building purposes
erecting, improving, adding to, repairing of buildings
Define death duty
estate duty and every other duty reviable or payable on death
Define death duty
estate duty and every other duty revivable or payable on death
Define estate owner
owner of a legal estate, NOT an infant
Define incumberance
Legal or equitable mortgage
Define instrument
Not a statute, unless statute creates a settlement
Define land
Any tenure, and mines and minerals, buildings and other corporeal hereditaments, and other incorporeal hereditaments
Define legal estates
estates, interests and charge in or over land
Define legal powers
powers vested by a charge by way of mortgage
Define personal representative
executor or administrator who handles property of a deceased person
Can you have an oral severance of title?
No!
What is a lease?
An agreement creating an interest in land for a fixed period of duration, usually in consideration of rent
Is a lease a legal estate?
Yes - term of years absolute. LPA 1925 s.1(1). Carved out of the freehold estate.
What’s the difference between a sublease and a headlease?
Headlease is an original lease. Sublease is the lease held by a sublettor.
What’s the difference between the grant of a sub-lease and an assignment of tenancy?
It may not always be clear whether a lease has been assigned or whether a sub-lease has been granted. It is only an assignment of the lease if all the lessee’s interest in the lease for the whole of the rest of the term is transferred. Where a sub-lease is granted it is usual for it to expire not later than one day before the head lease comes to an end. Where a transfer purports to be an assignment, but is for a period of less than the remainder of the term, even if only one day less, it is not an assignment but a sub-lease.
What are the essential requirements for a lease?
A lease is an interest in land, which must demonstrate three essential characteristics:
(a) confer on the tenant an exclusive right to possess the land; AND
(b) be for a fixed ascertainable period; AND
(c) comply with the appropriate formalities
Payment of rent is not an essential requirement
What’s exclusive possession?
Street v Mountford
Right to exclude all persons from the land, including the landlord who granted the lease
Which circumstances can defeat exclusive possession?
Westminster City Council v Clarke
Expressed to be personal to letter
Exclusive possession not intended
Room could be changed without notice
Could be required to share accommodation
Not allowed to invite guests
Employees could enter at any time
Provisions of agreement genuine and necessary
What are the formalities required for a lease?
Creation of a legal lease or assignment of a lease must be granted by deed (s52(1) LPA 1925)
What is the formality exception criteria for a lease of three years or less?
s54(2) LPA 1925
Term of three years or less
Takes effect in possession (immediately)
Best rent reasonable
No fine is taken (beyond rent)
How does an equitable lease arise?
Parties entered into an agreement for a lease, but didn’t grant legal lease by deed
Parties attempted to create a legal lease but one of the formalities have not been complied with
How does an equitable lease arise?
Parties entered into an agreement for a lease, but didn’t grant legal lease by deed
Parties attempted to create a legal lease but one of the formalities have not been complied with
Which case reinforces need for fixed, ascertainable duration?
Prudential Assurance v London Residuary Body (1992)
What’s a lease for a fixed period?
Lease that comes to an end automatically at the end of the agreed term. No notice to quit is required.
What can terminate a lease for a fixed term?
Surrender
Merger
Forfeiture
Break clause
What’s a periodic tenancy?
Express: Period of time that can renew unless notice to quit is provided
Implied: Did parties intend to create periodic tenancy
Period is calculated by reference to how rent is calculated, not paid
What kind of interest is a lease?
Proprietary interest
Can bind a future purchaser of the freehold estate
What kind of right is a license?
Personal right
Can only bind original parties
Can a lease be sold?
Yeah! A license cannot
How can leasehold covenants arise?
Expressly
Impliedly
Custom/practice
Statute
What’s a covenant
Promise contained in a deed
What’s a covenantor
Person making the promise (bearing the burden of the covenant)
What’s a covenantee
Person to whom the promise is made (taking benefit of the covenant)
What’s a positive covenant
Covenant requiring covenantor to do some act or incur some expense
What’s a restrictive covenant
Any covenant which is not positive
What’s a real covenant
Those that affect parties in their capacity as landlord or tenant. Must touch/concern the land
What’s a personal/collateral covenant
Purely personal agreements or other promises that do not touch/concern the land
NOT A REAL COVENANT
What’s privity of contract
Parties are in direct contractual relations
What’s privity of estate
Tenure exists between parties
What is the dividing line between old tenancies and new tenancies
Landlord and Tenant (Covenants) Act 1995
Took effect 1 Jan 1996
What’s express contrary intention
Original landlord agrees that original tenant will be release on assignment of the lease
What an indemnity covenant
Mitigates liability from original tenant
How can indemnity covenant arise
Express
Implied by statute
Implied under common law - Moule v Garrett
What is privity of estate (pre-1996)
Even if Landlord and Assignee have no privity of contract, they have privity of estate because there is tenure
Privity of estate arises where there is a current relationship of landlord and tenant between the parties to a legal lease.
What is the working test for whether a covenant touches/concerns the land?
P&A Swift Investments
- the covenant must benefit only the reversioner for the time being, so if separated from the reversion it ceases to be a benefit;
- the covenant must affect the nature, quality, mode of user or value of the land of the reversioner; and
- it must not be personal.
What’s indemnity
Security or protection against a loss or other financial burden
You can seek to recover sums paid as a result of a lawsuit by making a claim on the indemnity
What’s reversion
If you have a right in land that will revert to you after a lease term ends, you own a reversion.
Is there privity of contract or estate between a sub-tenant and a head landlord?
PRE1996
Nope. But a sub-lessee will be bound by restrictive covenants in the headlease of which he has notice (Tulk v Moxhay).
What is an Authorised Guarantee Agreement
An AGA is an agreement between the landlord and outgoing tenant under which the tenant guarantees that his assignee will comply with the covenants in the lease.
When can an AGA be required
(1) the tenant is released via assignment
(2) there is a covenant against assignment in the lease; and
(3) the landlord’s consent is given subject to a lawfully imposed condition that the outgoing tenant give an AGA (i.e. either because it is reasonable to do so or as a condition of a commercial lease)
What are remedies for breach of contract?
a. Damages
b. Specific performance
c. Rescission - optional remedy
d. Rectification
e. Injunction
f. Declaration
What are the three types of covenants?
Express, implied, usual
What are the typical express tenant covenants?
Rent, repair, alterations, alienation, insurance, user
What are the typical implied landlord covenants?
Quiet enjoyment, not to derogate from grant, fitness for purpose
What is a typical express landlord covenant
repair (exterior)
What are typical implied tenant covenants?
Paying rent, rates and taxes; allowing landlord to enter/view/repair estate if they’re under express/implied obligation to do so; not to commit waste
What are the three alienation covenants
Absolute (total prohibition), qualified (prior consent required), fully qualified (prior consent required, won’t be unreasonably withheld)
What are the remedies for non-payment of rent?
Sue for repayment of debt; forfeiture; contractual remedies
For commercial premises, they also get Commercial Rent Arrears Recovery (CRAR)
How can a landlord seek forfeiture for breach of covenant other than for non-payment of rent?
File s.146 LPA 1925 notice
Prove breach isn’t remediable (Expert Clothing) or it is causing irremediable harm (Rugby School)
