FLK2 revision Flashcards
Can consent be used as a defence to eg GBH s 20?
Yes
When diminished responsibility and loss of control can be used?
Only to murder charge (lowers it to manslaughter)
Whose money trustee is deemed to spend first in breach?
His own
When first in first out rule applies in breach of trust?
If trustee mixed money from more than 1 trust on personal account
Indirect intent to kill
When D realises that GBH or death is a virtual certainty of D’s conduct
When trustee may retire without replacement?
(1) he obtains the consent by deed of all his co-trustees and the person, if any, given power to appoint new trustees by the trust instrument, and
(2) he leaves in office at least two trustees or a trust corporation
What will happen if beneficiary predeceased the testator?
Gift will fail
- but gift to 2 or more people as joint tenants will not lapse unless they all die before testator
How legal interest binds a buyer?
Irrespective of a notice
When is planning permission required?
For any development on land - building, making material change of use.
Minor internal works - not considered development so no planning permission required
Who is considered to be UK resident for CGT purposes?
Someone who works full time in the UK etc
Are gains from a principal residence subject to CGT?
No, except when the home was not lived in during the entire ownership
Adverse possession: unreg and reg
Unreg - 12
Reg - 10
How long the spouse must survive the deceased spouse (intestacy)?
28 days
Intestacy - spouse surviving with issue - what spouse takes?
- Personal chattels (tangible moveable property other than money and assets used for business/investment)
- £322,000
- One-half of the residue
How to protect oneself from claims from unknown creditors?
- Advertisement in London Gazette
- Advertisement in local newspapers
- Wait 2 months from the date of advertisements
How long can one be refused legal advice?
36 hrs when:
- Suspect is arrested on an indictable only or either way offence
- Superindentent or above authorises
- The officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence
What will appear on the proprietorship register if beneficial interest in land is held as tenants in common?
Form A restriction on proprietorship register
- for buyer to take free from beneficiary’s interest must pay to two or more trustees (overreaching interest)
How beneficiary can change who receives their inheritance?
Variation passing what they want to and to whom
- must be in writing
- must be within 2 years of death
- not made for monetary consideration
What are patent defects in land law
One which could have been reasonably discovered or apparent during the inspection - visible
- if owner hides them - misrep but no duty to disclose them
What are latent defects in land law
Defects which cannot be discovered by reasonable inspection
Caveat emptor - what is it?
‘Let the buyer beware’ - normally applies to patent defects; they must be disclosed by the seller
When rule that only 1/2 of capital value of the trust can be advanced to beneficiary was abandoned?
October 2014
What is the power of advancement used for?
Beneficiary’s advancement or benefit
Can adverse inference be drawn if defendant does not give account on trial?
Yes, because they cannot be cross-examed
When is good freehold title awarded?
When the freehold title has not been produced to HMLR on application to register a lease
When indirect intention can be satisfied for eg MR of muder?
When the outcome be a virtual certainty and for D to foresee that the outcome is a virtual certainty
Test for recklessness
D foresees the risk of serious harm and it is an unreasonable risk to take in the circumstances known to the D
When is loss of control avaialble
When the defendant kills someone due to
(1) a loss of control
(2) owing to a fear of serious violence or a justifiable sense of being seriously wronged, and
(3) a hypothetical person of the defendant’s age and sex might have reacted in the same way
What is converting a single dwelling into to called?
Material change of use
- planning permission required
- authority has up to 10 years to bring enforcement action for unauthorised change of use
What is development?
Includes material change of use, carrying on building works
When can the right to bail be refused?
If there are SUBSTANTIAL grounds to believe that the defendant would:
- fail to surrender,
- commit further offences, - or interfere with witnesses or otherwise obstruct justice
Also when D is charged with offence that can be tried in CC (burglary, arson, GBH) and they were on bail at the time of the offence
How is the deposit hold by the solicitor as agent for the seller?
Seller’s solicitors holds deposit and may pay over the deposit to the seller IMMEDIATELY AFTER EXCHANGE
- eg buying new build
- risk to buyer
How is the deposit held by the seller’s solicitor as a stakeholder?
Payable to the seller only on completion
What local search reveals
Any registrations by the local authority in the land charges register
2nd part - standard enquiries - roads fronting the property, public rights of way, planning entries and building regulations relevant to the property, may include optional enquiries
Who is both competent and compellable for both prosecution and defence?
Ordinary witnesses or co-def who: pleads guilty or if case is dropped
Is confession admissible even if hearsay?
Yes
Does the defendant have to provide any details of his defence in advance of trial?
If Magistrates’ - no, there is no duty to disclose on the defence
Duty applies only in CC
Can trustee buy trust property?
No, even if beneficiaries consented
- void
- due to potential conflict of interest (self-dealing)
Who can bring claim under Inheritance Act?
- surviving spouses or civil partners (not normal partners),
- persons who were being maintained by the deceased, and
- persons who were living with the deceased during the whole of the two-year period immediately before the death as the partner of the deceased
How to register Form A restriction at the Land Registry?
File:
1. Application to enter Form A restriction
2. Certified copy of a notice of severance
3. Signed acknowledgement of receipt by other registered proprietors
Self-defence test
- Did D honestly believe that the use of force is necessary to defend themselves, to defend another or prevent crime?
- Was the degree of force reasonable in the circumstances as the defendant believed them to be?
SDLT - when return to HMRC must be sent and tax must be paid?
14 calendar days (otherwise, penalty or may be sued for negligence)
SDLT rates
First time buyer
no SDLT up to £425,000
5% from £425,000 - £625,000
If over - cannot claim relief
Residential
0% on first £250,000
5% to £925,000
10% to £1.5mln
Above - 12%
Commercial (or another residential)
3% on first £250,000
8% on balance
How beneficiary can disclaim their interest (and/or accept the other interest)
Orally or in writing to PRs - so long as the beneficiary has not yet accepted any part of his or her interest in an estate
- lost when beneficiary accepts any part of his share
What is a Benjamin Order?
Protects the PR from liability against known but untraceable beneficiary
- allows PR to distribute the estate under the presumption that niece predeceased the testator
- if she later appears, she can claim her share from the beneficiaries to whom assets have been distributed, not from PR
What is Youth Court’s max sentencing power?
24 months
Party Wall Etc Act 1996
Under this act, building owner has right to enter an adjoining building to carry out certain works to party walls or structures
-notice in writing for existing party wall - 2 months
- 1 month for a planned new wall
When mortgage lender becomes entitled to possession of the property?
From the date the mortgage is executed and can repossess even if the mortgage agreement doesn’t specify this
What steps must be taken for the language preference in the court - English vs Welsh
The court will ask about defendant’s language preference at the plea and case management stage and the D must respond
- any party to legal proceedings in Wales has the right to speak in Welsh
- Any party can also submit written evidence in Welsh
- Where necessary, the court will book and pay for a Welsh interpreter
How is land held by partners (or just tenants who buy business property)
Legal - joint tenants
Equitable - equitable presumption in favour of them holding the land as tenants in common
What is oblique intention
Indirect intent
What Jervis and Harris clause entitles landlord to do?
Self-help clause which applies where the lease permits the landlord to enter the property to perform the repairs, then charge the costs of the repairs to the tenant, whenever the tenant is in breach of their repairing obligations
- pursue tenant for the costs of the repairs as a debt
disadvantage - landlord must pay and then sue tenant for repairs, hoping the tenant has sufficient funds to repay them
What act governs limited partnerships
the Limited Partnerships Act 1907
Wheeldon v Burrows
Easements implied by existing use:
Implies the grant of such continuous and apparent easements or such easements as:
- are continuous and apparent
- are necessary to the reasonable enjoyment of the land acquired
- had been, and were at the date of the conveyance, used by the seller for the benefit of the land now being sold
THOSE EASEMENT PASS ON SALE!
When Quick Succession Relief applies and when not
Applies where a person dies within 5 years of receiving a chargeable transfer where the deceased’s estate has been increased by the chargeable transfer and IHT was paid at the time the original chargeable transfer was made
- QSR is applied to IHT due, not the estate value
- if exceeds the IHT, the tax is reduced to 0
- does not apply with spousal exemption
If the person voluntarily attends the police station, at what time the relevant time starts?
At the time of arrest
So, eg D arrives with solicitor to the police station at 5:10pm
Is arrested at 5:20 pm - relevant time
Conditions for prescriptive easement
- without force
- without secrecy
- without permission (likely to be a licence)
Lawful excuse defence (eg saving someone)
When someone/property is in need of immediate protection
- The belief that protection is necessary is a subjective test
- Objective element when it comes to reasonableness of his action, once he held this belief
Inheritance nil rate band
£325,000
Identification parade - how many people
SUSPECT + 8 (total of 9)
On which assets can IHT be paid in instalments?
Land, unquoted and partnership shares may all be paid in instalments
- ASSETS - generally no
Registered property - where it states that the property holds an absolute title?
Proprietorship register
Do courts generally accept self-neglect by the victim as breaking the chain of causation?
Not really
Time for enforcement proceedings for local authority
Starts by service of an enforcement notice
- Within 4 years from the date of breach where any building operations have been carried out without planning permission or there has been a change of use to a single private dwelling house
- 10 years from the date for a breach of a condition attached to planning permission, or any other unauthorised material changes of use
- Where building work or a change of use which requires planning consent has been deliberately hidden from the local authority, the local authority can apply to the court to take action where these time limits have expired
What needs to be done to create trust of shares
Share certificate, stock transfer form deposited with trustee
How the court assesses the seriousness of the offence?
- Consider offender’s culpability in committing the offence
- Consider any harm which the offence has caused or was intended to cause or might foreseeably have caused to other people and especially the victim
Where are any restrictions registered?
Proprietorship register
What is voir dire?
Trial within trial
- to challenge the admissibility of a confession
How to value quoted shares
Take the lower of the two quoted prices for the relevant day + 1/4 of the difference between two (so if difference is 4, lower price + 1)
When defendant must serve initial details of the prosecution case?
As soon as practicable and in any event no later than the beginning of the day of the first appearance
Can oblique intention be enough for MR of attempted murder?
Yes
Who can appeal from Magistrates and based on what
Both defence and prosecution based on POINT OF LAW only (not procedure or evidence)
What is a grant of double probate
When executor had their power reserved and decides to take their role, they can apply for grant of double probate through the Probate Registry
Which shares qualify for 100% business relief?
Shares in unlisted company as long as they are owned for at least 2 years (regardless of %)
Which shares qualify for 50% business relief?
Shares in a quoted company if the deceased had voting control over the company (more than 50% shares)
- renting flats - no, not a business activity
Who must sign written confirmation to create a valid trust of land?
Settlor only
Definition of arson
intentionally or recklessly damaging or destroying property belonging to another by fire
SDLT on commercial buildings - is it payable inclusive of VAT?
Yes, on non-residential rates
What can be deductable on disposal of a chargeable asset?
Any purchase costs including SDLT
Order of entitlement if a person dies intestate without spouse/civil partner
issue, parents, siblings of the whole blood, and then siblings of the half blood, grandparents, aunts and uncles
How are the rights of occupation enjoyed by a non-owning spouse or civil partner protected in registered title?
Notice on the register of title (proprietor’s register)
What is res gestae?
a category of admissible hearsay, and it refers to when a witness was so emotionally overpowered by the events at the time of making the statement that concoction can be disregarded (think of the content of a panicky 999 call, for example)
FSMA - takeover exclusion
Solicitor can act as an agent, arrange or advice with respect to a client who is buying or selling 50% or more of the voting shares of a company or when the object of the transaction otherwise may be reasonably regarded as taking control of the daily running of a company
What is the liability of the Customer Protection Act? Why was it introduced?
Introduced because it is difficult to prove fault in negligence
- liability is STRICT - no need to prove D’s fault
- NEED TO PROVE DEFECT IN PRODUCT
- two or more defendants - jointly and severally liable
- product may cause injury and NOT be defective - eg hot coffee is expected to be hot and hurt tongue
- damage to the defective product itself excluded
- damage to business property excluded
- property damage below £275 cannot be recovered
- defence: property given not in the course of business and not with a view of profit
Conditional fee agreement
No win no fee
- successful - solicitor gets their normal fee and from the loosing party + disbursements and
- success fee from client on agreed %
- cannot exceed 100% of fees charged
What is a Judicial Committee of Privy Council?
Hears appeals from Commonwealth nations or British Overseas Territories but lack the final appeal court due to the small size eg Jamaica or Cayman Islands
When restitutionary remedy applies?
Unjust enrichment at the other’s expense - when using normal contractual remedies won’t work
- If a misrepresentation is fraudulent or negligent, the claimant may claim both rescission and damages
- If a misrepresentation is negligent or innocent, the court has the discretion to award rescission or damages in lieu of rescission
When are solicitors under obligation to identify and verify shareholder?
When they own more than 25% of the shares (PSC)
Test for apparent bias
Whether a fair-minded and informed observed, informed of the facts, would conclude that there was a real possibility of bias
Novel duty situation
- Whether it was reasonably foreseeable that harm would be caused to claimant
- Relationship of sufficient proximity - NO pure economic loss, no psychiatric harm without physical injury
- Is it fair, just and reasonable to impose a duty of care?
What is a writ of control
A court order issued by the High Court. It gives you the power to employ High Court Enforcement Officers (HCEOs), who can seize and sell the judgment debtor’s assets in order to settle the outstanding debt. This method of enforcing a CCJ is often referred to as ‘execution against goods’.
Claims under Article 14 HRA (freedom from discrimination)
Must be in conjunction with other convention rights (Equality Act)
What is victimisation (Equality Act)
When person is penalised having made their own complaint of discrimination or for helping another person with their discrimination complaint
Harassment (Equality Act)
Cannot be justified
Occurs when a person is subjected to unwanted behaviour which has the purpose of making another person humiliated eg taunting gay man
What is commons registration check?
Optional part of the local search to see if the property abuts or is adjacent to village green in common land (for public use)
What is the difference between arson and aggravated arson?
Aggravated arson has all the elements of ordinary arson, but there is an additional mens rea requirement that the defendant must intend or be reckless as to the endangerment of life by the damage caused to the property. Normal arson = only to property = creating criminal damage by fire
How many days after notice to complete one has to complete?
10 working days excl the day of service
How long does it take to acquire prescriptive right?
20 years
Which tenancies the Landlord and Tenant Act does not apply to?
Less than 6 months, contracted out, service tenancies
3 requirements to contract out of the Landlord and Tenant Act
- Health warning (14 days before tenant completes lease - can be waived in writing in front of the independent solicitor)
- Tenant’s declaration
- Reference in the lease to all 3 requirements
If tenant and landlord cannot agree the Landlord and Tenant Act lease, what court can do
The court can only order the grant of a new tenancy on such terms as it determines under the 1954 Act for a term not exceeding 15 years.
- lease will commence 3 months after end of the proceedings
Permitted development
Porch, fence, conservatory within certain limits
- can be revoked by local authorities by Article 4 direction (then even windows must have permission)
When is indirect intention available
Specific intent offences only, NEVER basic intent - for basic, recklessness (unreasonable risk to take)
Option to tax - who does it apply to and how?
Lease or sale of commercial premises
- standard 20% on lease and rents - problem for wholly or partially exempt purchasers/tenants as they may not recover input tax
- does not apply to residential
- if landlord buys new commercial building - taxable at 20%
- any inputs related to the supply eg heating cleaning may be recovered
