FLK2 Flashcards
Fixture and fitting
Fixture is an object affixed or annexed to land or a building in such a way that it becomes part of the land or building
Fitting is an object on land which does not become part of the land but which remains a separate chattel.
Test to determine if something is a fixture
- Degree of annexation: the greater the degree of attachment to the land, the more likely the item is a fixture. If the thing is so firmly affixed with nails, screws or the like that the structure will be damaged if the item is removed, it’s likely to be a fixture.
- Purpose of annexation: whether the owner intended to make it a permanent part of the land
Estates and interests in land
- The Crown owns all land and people can only own an estate in land.
There are 2 legal estates which give holders a possessory interest: - freehold estate (fee simple) - ownership of the land for an uncertain duration
- leasehold estate (a term of years) - and estate with a fixed maximum duration
How can a legal interest in property be created?
Only by deed which must be:
-in writing
-clearly intended to serve as a deed
-signed in the presence of a witness and signed by them as well
-delivered
5 categories of legal interests
- mortgage
- easement: right of use another person’s land (the servient tenement) to benefit another piece of land (the dominant tenement)
- rentcharge: an interest in land requiring the landowner to make a periodic payment in response of land to the rentcharge owner
- profits a prendre: interest in land enabling someone to take something from the land of another (timber, fish, etc)
-profit a prendre appurtenant: a right attached to a second parcel of land in the same way as an easement (right to take fish)
- profit a prendre in gross: profit is owned personally by the profit holder and exists independent of ownership of a second parcel - right of entry: reserved in a leasehold or rentcharge contract to enter the premises
When an equitable interest may arise?
If there is an attempt to create a legal interest by deed, but it fails because the deed formalities weren’t met.
Equitable interest isn’t binding on a third party who purchasers the legal estate for the value and didn’t have notice of equitable interest.
A buyer of land: is he bound by legal and equitable interest?
Legal interest: yes, irrespective of whether they are aware of them
Equitable: only if the buyer is aware of them
Where to find any legal interests if unregistered?
If unregistered: property deeds or by physical inspection
What is needed for equitable interest to be enforceable?
It must be registered on the Land Charges Register
5 classes of the UNREGISTERED land charges register
- C(i) puisne mortgage: a lender with a first mortgage usually takes possession of the property deed to secure the loan. If a second lender takes a mortgage, they can’t take the deed (it’s already taken) so they must register their mortgage as a second legal charge.
- C(iv): estate contract registration
- D(ii) restrictive covenant registration
- D(iii) equitable easement registration
- F -non-owning spouse or partner registers their statutory right of occupation IF UNREGISTERED. IF REGISTERED: NOTICE!!!
If an equitable interest isn’t registered, a purchaser will be subject to the equitable interest if they have other actual, constructive or imputed notice. What are they?
- Actual: if they know of the interest themselves
- Constructive: if they would have discovered the facts after making reasonable enquiry
- imputed: if notice has been given to their agent.
What interests can override first registration?
- Lease less than 7 years
- Legal easement
- Local land charge
- Interest belonging to a person in actual occupation of the land
Title to land can be lost through adverse possession if someone can show what?
-they have actual, physical and exclusive possession of the land for at least 10 years
-Without permission of the landowner
What will trigger an application for first registration and what’s the timeframe to make the application?
-A conveyance on same of freehold land
- a deed of gift
-an assent
- a grant of a lease for more than 7 years
- an assignment on sale of a lease having an unexpired term more than 7 years
The application must be made within 2 months.
Consequences for not doing the first registration within 2 months
The transfer of the legal estate becomes void and it reverts to the seller. The costs of remedying the failure to register fall on the party in default.
Each parcel of land which is registered has a unique title number, and HMLR issues a Title Information Document which includes a proprietorship registered specifying 5 possible classes of the deed
- Absolute freehold: takes the legal estate with all interests subsisting for the benefit of that estate
- qualified: a specified interest is excepted from the effect of registration
- possessory: based on factual possession of the land rather than doc evidence
- good leasehold: freehold title has not been produced to HMLR on application to register the lease
- absolute leasehold: HMLR inspected all superior leasehold titles and the freehold title
What estates can be substantively registered? Meaning registered with their own title and register
- Estates in land - freehold and leasehold
- rentcharges
- franchises
- profits a prendre in gross
Title information document is divided into 3 registers:
- Property register: identifies property by postal address, specifies the legal estate held, indicates any rights in other property such as easement over NEIGHBOURING LAND
- Proprietorship register: restrictions on title and the class of title held
- Charges register: details of encumbrances on the land, such as legal easements and mortgages OF THE BURDENED LAND.
Other third party interests may be protected only by the entry on a notice or a restriction on the register of title.
notice: something that burdens the land
restriction: used to prevent any dealing with the land
What are the interests that override first registration?
- Lease granted for 7 years or less
- Easements and profits a prendre
- Interest belonging to a person in actual occupation
Adverse possession
it works differently for registered land.
The person in actual occupation doesn’t acquire any rights in the land during the period of adverse possession, they acquire the right to apply for registration of title
Joint tenant
Co-owners, each own undivided, equal interest, includes the right of survivorship. On death, the deceased’s interest is automatically vested in any joint tenant still living.
Joint tenant can’t leave their share to someone in the will.
There can be no more than 4 joint tenants
Must be at least 18 years old
Tenants in common
No right of survivorship can leave their interest to someone else in their will.
When overreaching is appropriate?
Property being sold by one named individual but there may be a behind-the-scenes beneficial interest which must be overreached. Typically, it will be evidenced by a form A restriction on the proprietorship register, if the title is registered.
Leasehold: the landlord’s interest in the land
It’s known as the reversion, which is an assignable interest,
4 common types of leases
- Fixed-term tenancies
- Reversionary lease: it won’t take effect until a later date
- Periodic tenancies: defined by a period of time, such as yearly tenancy
- Tenancy at will: a personal arrangement between the landlord and another party which isn’t an estate in land. For example, when a landowner allows a buyer to take possession of the land before entering into any written agreement to sell
How a lease must be created and exceptions to it
Generally by deed. However, if less than 3 years, can be created orally or in writing without a deed if the tenant takes possession of the premises and it is at the best rent which can be reasonably obtained (market price).
Lease that wasn’t created by deed might be enforceable by equity if signed by the parties and incorporating all terms expressly agreed by parties.
Key characteristics of a lease
- right to exclusively possess the land
- is for a fixed or periodic term certain
- given in exchange for consideration (upfront or periodic payment)
Forfeiture (the right of a landlord to end the lease early and re-enter the premises)
Isn’t automatically available as a remedy for non-payment of rent or other breach of obligation. Only available as a remedy if expressly included in terms of lease. If clause is included, the landlord must serve a notice on the tenant.
If a party to a lease fails to perform repair - can claim damages or obtain specific performance.
Lease may include a self-help clause (Jervis v Harris clause): giving the landlord the right to enter and make a repair if the tenant breaches a covenant of repair.
Assignment of a lease before 1996
The original landlord and tenant automatically remain liable to each other under the lease for the entire period unless of them expressly releases the other.
Easements
- Servient tenement: is the land over which a right is enjoyed nd which makes the burden of right
- Dominant: land enjoying the benefit of a right
Personal right: is not an easement! for example, the right to swim in a neighbor’s pond. TIP: when considering if it’s an easement, ask: does it make the dominant tenement a more convenient landholding? if not, it’s a personal right and not an easement.
How easements can be created?
- Express grant or reservation: a landowner grants rights to benefit land being sold or reserves rights to benefit retained land
- Prescription: an easement acquired through long use:
-exercise of someone’s land without permission
-exercise for 20 years without challenge by landowner or contribution to the owner
-easement gained by prescription is treated as legal interest - Implied grant of reservation:
-by necessity
-by existing use if continuing and apparent, necessary to the reasonable enjoyment of the land, had been used by the seller for the benefit of the land sold
WHat needs to be done to protect a legal easement in registered land
Must be registered.
The benefit will appear as a notice on the property register on the DOMINANT tenement title
The burden will appear as a notice on the charges register on the servient tenement title
Positive and negative covenants
An express purpose trust
is one set up for a purpose rather than for people, for example for the maintenance of a pet cat
Implied trust: 2 existing types
- Resulting trust: an interest under express trust fails, express trust fails to exhaust the beneficial interest, or person makes a voluntary transfer or purchase in the name of another
- Constructive trust: equitable remedy imposed by court to prevent and unjust enrichment of one person at the expense of another as a result of wrongful conduct.
Requirement for valid trust
- intention to create the trust
- subject matter (or property included in the trust)
- object, that is beneficiaries
If it’s void for uncertainty of INTENTION, the property passes as an outright gift to the person who would have been the trustee.
If it’s void for uncertainty of SUBJECT MATTER, it reverts to the settlor.
If it’s void for uncertainty of OBJECT, a resulting trust in favour of the settlor or their succcessors is presumed.
Discretionary trust
Is one in which the trustee must choose whether to pay out trust funds to one or
more of a class of beneficiaries. For example,£400k to be divided between my current and past employees. The description need not need be sufficient to track down every member.
Number of trustees required
No minimum or maximum
Trust of land: must have at least 2 but no more than 4!
Saunders v Vautier
Under this rule, the beneficiaries may terminate the trust if:
- all are adults and sound mind (if any one is minor, the rule can’t apply!)
-all agree
-all have absolute interest
Cy pres
If a gift to charity in a will fails because it’s closed down after the testator’s death: the gift is already vested and no need to show general charitable intention!
Limitation period to bring a claim against trustee
6 years
No limitation if was party to a fraud or to recover property from the hands of trustees!
Indirect intention
it’s when the outcome was a virtual certainty and the D realised it was a virtual certainty
Specific and basic intent
Specific: offences which specify the INTENT required: murder, GBH 18, conspiracy, theft, robbery and burglary
Basic: which can be committed either recklessly or intentionally: BH 20, actual bodily harm, battery, assault, criminal damage and arson
Recklessness
D subjectively foresees the risk and continues regardless. It must be an unreasonable risk to take
Diminished responsibility
Absonrmality of mental functioning arising from a recognized medical condition, which substantially impaired the D’s ability to understand, form a rational judgment, exercise self contril. The abnormality provides an explanation for killing. The burden of proof is on D on the balance of probabilities.
Assault
intentionally or recklessly causes another to apprehend the immediate application of force
Aggravated criminal damage
The property CAN belong to the D alone
Physically impossible and legally impossible offences
Physically impossible: D can still be guilty
legally impossible offences: can’t be guilty
Conspiracy
spouses and the proposed victim can’t be a part of conspiracy
Involuntary and voluntary intoxication
Involuntary: can be a defence
If taking prescribed medication is voluntary
Voluntary:
CAN’T negate mens rea for basic intent offence (intentionally or recklessly). Includes GBH 20, actual bodily harm, battery, assault, criminal damage and arson
CAN negate for a specific intent crime like murder, GBH 18, conspiracy, theft, robbery and burglary
Self defence
D MUST BELIEVE the Force must be reasonable. Action must be proportionate to be reasonable.
3 categories of offences: summary, either way, indictable
Summary: less serious. Assault and battery
Either way: bodily harm and GBH, theft, criminal damage.
- Either way offence procedure: PLEA BEFORE VENUE
-theft less than £200 - Magistrates court can’t decline, but D can still decide to go with Crown C.
Indictable: GBH with intent, murder and manslaughter, robbery
Jury and Judges
Magistrates Court: no jury, a DJ or a panel of 2-3 magistrates
Crown court: CCJ decides issues of law, but a jury of 12 people decide if D is guilty
Suspention at police station: timeframes
24 h - without being charged
12 h extension by superintendent or higher
36 h - warrant from magistrates court
24 h - additional, second extension
TOTAL: 96h
Timeframes Magistrates court
28 days of the order: prosecution service it’s evidence and notice to adduce bad character
Within 7 days: D notify the prosecution of witnesses to attend and
Within 14 days: serve its defence statement
Timeframes Crown court
Plea and preparation hearing: within 28 days
D may ask for indication of sentence (called Goodyear). If the judge agree to give it, they are bound by it
If D pleads not guilty prosecution has 50 days (70 if on bail) to complete disclosure
WIthin 28 days: serve its defence statement
Turnbull guideline
ADVOKATE
Newton Hearing
The D may plead guilty to the offence but dispute the facts set out by the prosecution and offer to plead guilty on different facts. If the prosecution rejects the plea, Newton hearing is held to settle the disputed facts.
The hearing takes the form of a trial in which the witnesses can be called to give evidence. If the hearing is settled in prosecutions favour, the D will lose any credit for the guilty plea.
Appeals procedure: Magistrates and Crown Courts
Magistrates:
D pleaded guilty in M court, can only appeal against SENTENCE to the CC.
The prosecution can’t appeal.
Either D or the prosecution can appeal to the divisional high court by way of the case stated (a decision is wrong in law).
21 days.
Crown:
D can appeal from either CC or Court of Appeal
28 days on the basis the CONVICTION was unsafe.
A SENTENCE can be appealed on the basis it was wrong in law, in principle, excessive
Solicitor representing buyer and lender/ buyer and seller/ 2 buyers and sellers
buyer and lender: possible
buyer and seller: no, even if they both agree
2 buyers and sellers: yes. if they agree and no conflict
If property is unregistered/ if property is registered
unregistered: the seller will send an epitome of title. 15 years.
registered: official copy of the registered title
Completion timeframe
20 working days after exchange by 2:00pm
What’s included in special conditions at the end of a Contract Incorporating the Standard Conditions of Sale?
- if the property is sold vacant on completion or there will be a tenant
- whether a different time for completion agreed
3.if there are any occupiers in the property,such as relative
When an index map is used?
When the seller is saying the property is unregistered, this is to check if it’s fully or partially registered
Planning permissions
- Unauthorised building works: within 4 years
-Material change: 10 years
-Listed buildings: no time limit
Building regulations
- if doesn’t comply with it: within 12 months from the breach, but may seek injunction requiring to bring the building up to standard
Timeframes for land registration
- if the land is registered, priority search at HMLR provides a 30 working day to complete registration of mortgage
-if mortgage completion triggers first registration, it should be done within 2 months
if the buyer is a company: the mortgage must be registered at Companies house within 21 days
-
Wills: if the beneficiary dies before the testator
- if the beneficiary dies before the testator, the gift will fail
- if the gift was made to issue of the testator (child, grandchild, greatgrandchild) - doesn’t lapse, and will go to the living issue!
Letters of administration with will annexed
If the deceased left a will but there is a problem with the appointment of an executor, a person interested in being the PR will apply for letters of administration with will annexed.
A person must clear off with a higher entitlement to a grant of letters.
If a minor is a beneficiary, at least 2 administrators required
Letters of administration
If the deceased left no will
Grant de bonis non
A second grant of letters. If the sole or last surviving PR dies, it will be made using the preferential list (spouse, children, parents, brothers and sisters etc).
No grant de bonis is needed if the PR dies but left a PR of their own.
When IHT and CLT taxes due?
IHT: within 6 months FROM THE END OF THE MONTH of death
CLT: at the later of 6 months from the end of the month in which CLT was made and 30 Apr after the tax year in which it was made (20 by the trustee or 25% if by donor)
Estate accounts
- Capital: to deal with assets in the estate
- distribution: keep track of the amount each beneficiary is entitled to
- income: keep track of dividends received by PRs during administration
Chargeable Lifetime Transfer (CLT)
20% if paid by trustees
25% if paid by donor
BUT FIRST DON’T FORGET TO DEDUCT £325 nil rate band!
PET and taper relief
If there are more than 3 years between the date of PET and donor’s death, taper relief is available to reduce tax by 20% prior to each year prior to 3 years from the death
Business relief
Reduced the value of business property given as a lifetime gift to a trust
100% - if transfer business or interest or shares in an unlisted complany
50% shares in a quoted trading company if donor has more than 50% of shares or transfers land or building or plant or machinery
The relief is available only if business is trading. The donor must have owned for at least 2 years.
Agricultural relieft: 100%
Residence NRB
If the deceased used the property as a private residence and it’s left to linear descendants (children, grandchildren). £175k.
For estates over 2m, it is tapered £1 of every £2
Taxation on estates
non saving income: 20%
dividends: 7.5%
NO personal, dividend allowances are available. Interest on loan is deductible
Capital gains
Can take the annual exempt for the year of death and the next 2 tax years. It’s 12,300
20% on general gains, 28% residential property.
SDLT and tax relief for first time property
must be paid within 14 calendar days
tax relief for first time buyers property up to 500k.
0% on the first 300k, then 5% up to 500k.
Grant of probate
if the person left a will. If they didn’t leave a will, a grant of letters of administration is used instead.
Probate is the legal right to deal with someone’s property, money and possessions (their ‘estate’) when they die.
