Formalities Flashcards
Substantive requirements for formality
• Genuine intent: some factors (duress, undue influence, want of capacity etc) may vitiate consent
• Content of the right is recognised by law:
- General public policy (e.g: A & B agree to kill C → not valid in law)
- For property rights: special requirements (=numerous clausus principle)
Contract law: a limit of things you can’t do
BUT: Property rights: a limit of things you can do
➢ What the law thinks you should be able to do
numerus clausus
a concept of property law which limits the number of types of right that the courts will acknowledge as having the character of “property”;
National Provincial Bank Ltd v Ainsworth, Lord Wilberforce stated that
“ Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.
Rights being numerous clauses
Freehold, easement, restrictive covenant, lease, mortgage, rights under trust, license coupled with interest, profit a prendre, rent charge, right of entry, estate contract, option, mere equity, home rights
Formal requirements of formality
Legal constraints on the manner in which something is done, rather than whether it is permissible to do
Critchley 1998: “a requirement that a matter of substance must be put into a particular form (to have a legal effect)”.
E.g.: deed of conveyance
MUST BE IN WRITING
Formalities: rule in writing
s.2 (1) and (3) Law of Property (Miscellaneous Provision Act) 1989
Exceptions to rule in writing
Short lease; contracts: mentioned in section 54(2) LPA 1925;
writing does not apply to trust as well
Walsh v Lonsdale
equity: regards that as done which ought to be done, in absence of formalities (deed) for a legal lease, there is an equitable lease;
a specifically enforceable contract, for the sale or disposition of an interest in land
⇒ an equitable equivalent of that interest
Non compliance with formality rule
Contract is void, exceptions: trust, proprietary estoppel
Exchange of contracts (formalities)
signed contract - LP(MP)A’89 s.2(1) -> estate contract (equitable)
Completion/disposition (formalities)
deed - LPA’25 s.52; exception (short lease under 3 yrs) - 54(2) -> beneficial (equitable) ownership
Registration
When required? Registered land LRA’02 s.4; unregistered land s.27 -> legal title
Conveyance
consensual creation/transfer of a property right whether at law or in equity
Testamentary dispositions
intentions to transfer/create rights that operate on death; formality rules: Will Acts 1837, s 9; in writing, signature, intention; each witness attests and signs the will
Inter vivos dispositions
intentions to transfer/create rights that operate immediately
“unregistered land”
a legal estate or charge the title to which is not entered in the public register
Crago v Julian (1992)
Transfers of existing short leases are not within the exception of parol rule; if lease already exists, must be registered
Unregistered land: registration requirements
Land Registration act 2002, section 4(1); non-compliance - void, s 7
Qualifying estate
Land Registration Act 2002, s 4(2)
- Freehold estate
- Lease that has more than 7 years to run
Registered land: requirement of a deed
Section 52 LPA 1925
Registered land: registration requirements (formalities)
Land Registration Act 2002, s 27(2)
Formalities for creation of trust
Law of Property Act 1925, s 53(1) (b) - Declaration of trust required to be in writing (not void without but not enforceable without written evidence when challenged)
No registration requirement for creation
• Equitable interests in registered land, like equitable interest in unregister land, can arise purely by writing.
• BUT: lack of registration in registered and unregistered land can affect the priority of an equitable interest.
• Land charges act 1972: unregistered land
Land registration act 2002, s 29 and 32
Creation of valid deed
1) Must be clear on face that it is a deed
2) Signed in the presence of independent witness (unconnected with transaction)
3) Delivered
