Equity

Question 1

What is meant by Common Law?

Answer 1

• Justice seen to stem fromthe monarch
• administered through the Monarch’s courts
• Right to be heard depends upon the availability of a writ for the claim
• Prescribed remedy applied by judge- usually damages

Question 2

What is the role of equity in informal acquisition of title and rightss in property?

Answer 2

-Equity may recognise property rights despite non-compliance with the legal formalities required for creation’ transfer, based on these equitable maxims:

—> ‘Equity looks on that as done which ought to be done’
—> ‘Equity looks to intent, not form

Question 3

What is equity’s role in transfer of intangible personal property?

Answer 3

The maxims seem to suggest that equity has no role where a property transfer does not comply with the legal formalities

Question 4

Mildly v Lord (1862)

Answer 4

-strict compliance with the maxim e equity will not assist a volunteer

Question 5

Jones v Lock (1865- 66)LR 1 Ch. App. 25 I

Answer 5

• A father expressed his intention to give a cheque to his baby son, but did not complete the formalities.

Question 6

Re Fry [1946]

Answer 6

• The donor had done everything he could to transfer shares to his son, but died before the Treasury gave permission for the transfer of international shares

HELD:
No transfer at law or in equity

Question 7

Re Rose [1952] Ch 499

Answer 7

• Mr rose intended to make a gift to his wife of some shares in a private company; he made no self-declaration of trust
  —>LEGAL FORMALITIES- Mr Rose executed the share transfer for. And sent this to the company directors in March 1943; but the company directors failed to register the change in shareholding until June, by which time Mr Rose has died

Question 8

What is a constructive trust?

Answer 8

• Constructive trusts are trusts that may be implied in the absence in the absence of trust, where the trustee has induced another to act in their detriment in the belief that if they do so act to their detriment they would acquire a beneficial interest in land

Question 9

Curtis v Pulbrook [2011] EWHC (Ch)

Answer 9

• (read case)

Question 10

Strong v Bird

Answer 10

Read case

Question 11

Re Ralli’s Will Trust [1964] Ch 288

Answer 11

(Read cases

Question 12

Which rights are capable of being legal in land?

Answer 12

• only some rights are capable of being legal and this depends on where a right falls within the list in s.1 LPA 1925

—> s.1 (1): Freehold and Leasehold estates
—> s.1 (2): Easements, mortgages
—» s.1 (3) LPA 1925

‘All other estates, interests, and charges in or over land takes effect as equitable interests

Question 13

How will a right become equitable?

Answer 13

• if there has been an attempt to create a legal right but there has been a failure of formalities, for example, not making use of a deed
• if there has been an attempt to create a legal right but there but been a failure to register the right as required

Question 14

Walsh v Lonsdale (1882) LR 21 Ch D 9 (7 year lease; contract but no deed)

Answer 14

(Find facts of the case)

• equity will recognise a mortgage which has been created by a valid deed, but the legal formality of registration has not been complied with
• following the rule in this case, equity will recognise a mortgage which has been created by a valid deed, but the legal formality of registration has not been complied with

Question 15

What is an estate contract?

Answer 15

• an estate contract is valid contract complying with s.2 LP(MP) Act 1989 to transfer or create an estate in land

Question 16

What happens as soon as the estate contracts are made?

Answer 16

• As soon as contracts are exchanged to transfer title in land, the purchaser has an equitable interest in that land- before pay,ent of the purchase price, or registration

Question 17

What case supports this idea:
- the vendor’s equitable obligation is to protect the interest that the purchaser has acquired under the contract

-the vendor must take reasonable care of the land and consult the purchaser over any decision affecting it

Answer 17

Eaglewood Properties v Patel [2005] EWHC 188 (Ch)

Question 18

Covenants can be both:

Answer 18

• restrictive

- positive

Question 19

What is the definition of a restrictive covenant?

Answer 19

• these prevent the burdened landholder doing something with their land, for the benefit of neighbouring landholders

Question 20

What is the definition of a positive covenant?

Answer 20

• these force the burdened landholder to do something, eg. To make a financial contribution, for the benefit of neighbouring landholders

Question 21

What attributes does a covenant need to have to be enforceable?

Answer 21

• it must ‘touch and concern the land’ (rather than being purely personal)
• It’s benefit must have been transmitted to the new owner along with the legal estate which benefits from the new covenant

Question 22

What are the rules of enforcing the burden of covenants on leasehold covenants?

Answer 22

• both restrictive and positive covenants can be enforced, even if both the freehold land which has the benefit and the leasehold land which is burdened, have changed hands since the date of the original lease which constrained the covenant

Question 23

What are the rules of enforcing the burden of covenants on freehold covenants?

Answer 23

• At common law, the burden of a covenant cannot pass to a successor of the servient land
• Rhône v Stephens [1994]

Question 24

Equity allows the burden of a covenant to pass from an owner of of the servient tenement to his successor in title, where the four requirements which were developed in Tulk v Moxhay (1848):

Answer 24

1) must be restrictive in nature
2) must accommodate the dominant land
3) the original parties must have intended for the burden to pass with servient land
4) the purchaser of the servient land must have had notice of the covenant

Question 25

Baker V Craggs [2018] EWCA Civ 1126

Answer 25

• the Carltons sold part of their property to the Baker, but the application to register the Baker, but the application to register the Baker’s new freehold title was delayed. in the meantime, the Carltons sold another party of their property to the Craggs, with the benefit of a right of way (an easement) over the Baker’s land
• when the Craggs registered their new freehold title with the benefit of the easement, the Bakers’ title had still not been registered.

Question 26

What is overreaching equitable interests in land?

Answer 26

• Overreaching avoids problems for some purchasers, while also protecting (in some extent) the holder of equitable interests)

Question 27

How does overreaching work?

Answer 27

• when the land is sold, the process of overreaching converts an equitable proprietary interests in land into monetary interests in the proceeds for sale
• the only claim the holders of those former equitable interests have is against the trustees who sold the land and now hold the proceeds of sale on trust; there is no claim against the new purchaser
• overreaching only applied when freehold and legal estates in land are transferred