Estates and Interests Flashcards
Chapter 1
What is the difference between real property and personal property?
Real property refers to rights relating to land, including estates and interests such as mortgages and easements. Personal property includes all other rights in property, such as goods and chattels
What are the two main categories of rights in land?
The two main categories of rights in land are estates and interests. An estate in land gives a person the right to enjoy, possess, control and dispose of the land, while an interest in land is a right against land owned by another person.
What are the two types of legal estates in land?
The two legal estates in land are the fee simple absolute in possession (freehold), which lasts indefinitely, and the term of years absolute (leasehold), which lasts for a fixed period.
What is the difference between a fixture and a chattel?
Fixtures are items that become part of the land and are transferred with it upon sale, while chattels remain personal property and can be removed by the seller. The distinction is determined by the degree and purpose of annexation.
What are the two tests used to determine if an object is a fixture or a chattel?
The tests are: (a) the degree of annexation - how firmly affixed is the object to the land, and (b) the purpose of annexation - why was the object attached?. The purpose of annexation is the key test.
Give three examples of legal interests in land.
Easements, mortgages, and profits can be legal interests if they meet certain conditions.
What is an easement?
An easement is a right for one landowner to use another’s land for the benefit of their own land, for example, a right of way.
What is a mortgage?
A mortgage is an interest over land granted by a borrower to a lender as security for a loan
What is a restrictive covenant?
A restrictive covenant is a promise by one landowner in favour of another landowner not to do certain things on the land.
What is an estate contract?
An estate contract is a contract to convey or create a legal estate. The buyer holds an equitable interest after the contract is exchanged.
What is the difference between a legal and an equitable interest?
A legal interest is listed in s 1(1) or 1(2) LPA 1925 and created with the required formalities, typically a deed, while an equitable interest arises when legal formalities are not met, or the interest is not listed in s 1(1) or 1(2) LPA 1925. All property rights can exist in equity.
How is a legal interest created or transferred?
Generally, the creation or transfer of a legal estate or interest requires a deed. A deed must be in writing, make it clear that it is a deed, be signed, witnessed, and delivered.
What are the requirements for a ‘parol lease’ to be legal?
A parol lease (a short-term lease not requiring a deed) must be for three years or less, take effect in possession, be at market rent, and have no fine or premium.
What are the formalities for a contract for the creation or transfer of rights in land to be valid?
The contract must be in writing, incorporate all expressly agreed terms in one document, and be signed by or on behalf of all parties.
What is an express trust?
An express trust is created when a legal estate owner (settlor) transfers the legal title to a trustee, who holds it for the benefit of a beneficiary. It must be created in writing and signed.
