Essentail Basics, Formalities And Co-ownership Flashcards
What is real property vs personal property?
Real property - all property rights relating land are real property, except leases
Personal property - all types of property (including leases)
What are fixtures vs chattels ?
Fixtures are included in the land and chattels are personal property - depends on degree of annexation and purpose of annexation
What is a legal estate ?
To create or transfer an existing legal estate, a deed is required (unless short term lease that meets requirements)
What is required for a deed to be valid ?
- clear on it’s face it is intended to be deed
- validly executed (signed, witnessed and delivered).
What are equitable estates ?
If estates does not appear in s1 or s1.2 LPA 1925, then it is not legal and is equitable by nature.
What are Estate contracts ?
Once a contract for sale of a freehold has been made, equity views the purchaser as owning an equitable interest during during this interval between exchange and completion
What is a legal interest ?
To create or transfer an existing legal interest, a deed is required, unless an exception applies.
Deed must be - clear on its face, validly executed
What situations allow an equitable interest in land to arise ?
- By express trust
- By contract
- Granting legal estate or interest which is void for lack of formalities.
- Grant of an estate or interest by person who only owns equitable interest
- Granting of an interest that can only exist in equity
- By constructive or proprietary estoppel
- implied trusts
What is the difference between freehold and leasehold ?
Freehold - capable of being inherited, can pass to any class of heir, not determinate or conditional on any event
Leasehold - tenant is granted possession for fixed period
What effect do interests have on registered and unregistered land ?
Registered land - interests must be protected by entry on land register
Unregistered land - legal interests bind automatically other interests binding where buyer has notice of them
What is severance ?
Process by which joint tenancy in equity can be converted into tenancy in common
(Only applies to equitable interest not legal)
When might a legal easement fail and be an equitable interest
If it is granted for the wrong duration of time - must be for a fixed amount (or forever freehold)
Can you have a legal lease without formalities ?
- Yes if it is for less then 3 years,
- they have immediate right to possession
- landlord cannot pay charge or premium
(Parole exception)
What makes a lease/easement/covenenant equitable instead ?
If the formalities fail (must be forever or for fixed yearly amount) then it will fail as legal and become equitable
What is severance and how can it be obtained ?
Method by which joint tenancy in equity can be converted into a tenancy in common:
- formal severance (written notice)
- informal severance
How is formal severance obtained?
Written notice that expresses desire to end tenancy immediately + received by all other tenants
How is informal severance obtained ?
When joint tenancy in equity disposed of their interest by sale
Or through conduct showing that they regard themselves as owning separate shares
When might an implied trust of land arise ?
- resulting trust - when someone without legal title to property makes a contribution to purchase of property (purchase price)
- constructive trust - 1) agreement + detrimental reliance and 2) conduct + direct financial contribution
How many people can hold the legal interest ?
4 total
What happens when one joint tenant mortgages their share to bank and buys it back
They will become tenant in common with proportionate share and the remaining tenants will be joint tenants