Land 1

Question 1

What is ‘ownership of land’?

Answer 1

It is often said that someone ‘owns’ a piece of land. Technically this is not correct. All land in England and Wales is owned by the Crown. Individual landowners hold one of two estates in land: freehold or leasehold

Question 2

What is a ‘freehold’?

Answer 2

A freehold gives the holder the right to use the land and sell it or leave it to their heirs for an unlimited duration.

Question 3

What is a ‘leasehold’?

Answer 3

A leasehold gives the holder the right to use the land for a limited duration. Some leasehold estates can be sold and/or left to heirs.

Question 4

What is an ‘easement’?

Answer 4

An easement is a right which exists over a piece of land which benefits a different piece of land, for example, a right of way.

Question 5

What is a ‘covenant’?

Answer 5

A covenant is an obligation (a promise) to do or not to do something pertaining to land. Covenants can apply to freehold or leasehold land and usually limit the landowner’s ability to use or deal with the land in some way

Question 6

What is a ‘mortgage’?

Answer 6

If a landowner has borrowed money to fund the purchase of land, the lender may take a mortgage or charge over the property as security for the loan.

Question 7

What is a ‘lease’?

Answer 7

A freeholder may decide to allow someone else into occupation of all or part of the land on agreed terms. These terms will often be contained in a lease which will give the tenant the right to exclude the owner of the land from the property that is the subject of the lease.

Question 8

What is ‘co-ownership’?

Answer 8

Where two or more people acquire a joint share in land by virtue of a transfer, conveyance (purchase or gift), or under a will or through intestacy, a ‘co-ownership’ situation arises. It is possible for the interests of co-owners to be held as: joint tenants or tenants in common

Question 9

What are ‘joint tenants’?

Answer 9

This means that the parties hold on an equal basis, they hold no defined share in the property, and on the death of a co-owner, their interest in the property passes to their surviving co-owners (‘survivorship’)

Question 10

What are ‘tenants in common’?

Answer 10

This means that the parties hold a defined share in the property which can be an equal or unequal share. There is no survivorship, so the share of a deceased co-owner will pass according to their will or the intestacy rules.

Question 11

What are ‘chattels’?

Answer 11

The traditional description for personal property such as fittings-items that are not part of the land and do not pass on sale unless they are specifically mentioned in the land sale contract.

Question 12

What is a ‘disposition’?

Answer 12

The term ‘disposition’ is not defined in the Land Registration Act 2002, but generally, the term ‘disposition’ describes the transfer or a dealing in land which requires some form of registration at Her Majesty’s Land Registry. A sale or creation of a mortgage or lease are examples of a disposition.

Question 13

What is ‘HMLR’?

Answer 13

• Her Majesty’s Land Registry - Registers the ownership of land and property in England and Wales. It keeps and maintains the Land Register, where more than 24 million titles (the evidence of ownership) are documented. * HMLR is an executive agency of the government Department for Business, Energy, and Industrial Strategy. * The main statutory function of HMLR is to keep a register of title to freehold and leasehold land throughout England and Wales. * On behalf of the Crown, HMLR guarantees title to registered estates and interest in land. * In addition, HMLR also has responsibility for the functions of the Land Charges Department and the Agricultural Credits Department.

Question 14

What is ‘privity of contract’?

Answer 14

The general principle of contract law that only the parties to the contract can enforce its terms for the entire duration of the contract. In a land law context, this is particularly relevant to the topic of leases, when we consider whether lease covenants are enforceable against successors in title, and freehold covenants.

Question 15

What is ‘privity of estate’?

Answer 15

This exists when two persons have a relationship of landlord and tenant between them.

Question 16

What is a ‘purchaser/buyer’?

Answer 16

The person who buys a property; “buyer’ is the term in common use now. This is typically used in the contract of sale.

Question 17

What is a ‘transferee’?

Answer 17

The party buying land as defined in HMLR’s form of transfer.

Question 18

What is a ‘transferor’?

Answer 18

The party selling land as defined in HMLR’s form of transfer.

Question 19

What is ‘vacant possession’?

Answer 19

In its simplest terms, this means that on the day of completion of the sale of a property, the seller will leave an empty property for the buyer.The contract incorporating the Standard Conditions of Sale (fifth edition - 2018 revision) makes it a condition of the contract that the seller will give vacant possession. But it means more than the property just being empty. If the buyer cannot use the property because there is something stopping them from doing so, this would not constitute ‘vacant possession’. For example, if a basement is full of sacks of solidified concrete, the seller has not given vacant possession.

Question 20

What is a vendor/seller?

Answer 20

The person who sells a property. “Seller’ is the term in common use now. This is typically used in the contract of sale.

Question 21

What is an ‘administrator’?

Answer 21

A person appointed to deal with a deceased person’s property and effects (their ‘estate’) where there is either an intestacy (meaning someone has died without making a will) or if there is a will but there is either no executor appointed or no executor alive or willing to act.

Question 22

What is an ‘executor’?

Answer 22

A person appointed in a will to handle the administration of the deceased’s estate.

Question 23

What is ‘intestacy’?

Answer 23

The estate of a person who has died without making a will or who has made one but which does not deal with all or part of the estate. The list of who takes what part of the estate of the deceased in the event of an intestacy is called the ‘intestacy rules’

Question 24

What is a ‘personal representative’?

Answer 24

The ‘umbrella’ term for executors and administrators; people who take control of a deceased’s estate.

Question 25

What is a ‘will’?

Answer 25

A legal document by which a person known as the ‘testator’ sets out their wishes as to how their estate is to be distributed on their death. The testator will name one or more people to be their ‘executor’ to manage and distribute the estate in accordance with the terms of the will. There are strict rules as to how a will must be signed.

Question 26

What is an ‘assent’?

Answer 26

The document used to transfer legal ownership of property or land from the estate of someone who has died into the name of the new owner. The personal representative/s will ‘assent’ the property to the beneficiary.

Question 27

What is a ‘contract for sale’?

Answer 27

The document which sets out the agreement between the seller and buyer for the sale of land. The parties will enter into a binding agreement upon exchange of contracts. This is the point in a conveyancing transaction when the matter becomes legally binding. The contract sets out the terms of the sale and is the agreement to buy and sell. In residential transactions in England and Wales, the typical form of contract incorporates the Standard Conditions of Sale (fifth edition - 2018 revision).

Question 28

What is a ‘conveyance’?

Answer 28

The traditional form of deed used when a title is unregistered; it transfers the legal estate from seller to buyer. These are rarely used in practice now but will be encountered when investigating an unregistered title.

Question 29

What is a ‘transfer’?

Answer 29

A document used in conveyancing in England and Wales to transfer real property from its legal owner to another party. This is a standard HMLR form. There are various types of transfer documents but the most common are the TR1 (which is used to transfer the whole of a legal title) and the TP1 (which is used to transfer part of a legal title). The transfer can be used if the title to the land is unregistered or registered with HMLR. The transfer is the document which puts the contract into effect and transfers the legal estate on the completion date.

Question 30

What is an ‘assignment’?

Answer 30

In general terms, an assignment is the transfer of a right from one party to another. In land law and conveyancing terms, however, it has two meanings: (1) the transfer of a leasehold estate from one party to another and (2) the document that transfers the leasehold estate itself.

Question 31

What is a ‘grant of lease’?

Answer 31

The situation where a leasehold estate is created by the granting of a new lease from the landlord to the tenant. The terms of the lease can be negotiated between the landlord and the tenant when a new lease is being granted. Contrast this with the assignment of a lease which is the transfer of an existing leasehold estate.

Question 32

What is a trust?

Answer 32

In general terms a trust arises when property is held by one person (the trustee) on trust for another (the beneficiary). The Trusts of Land and Appointment of Trustees Act 1996 imposes many statutory duties upon trustees in the discharge of these duties. Whenever two or more people own land, a ‘trust of land’ arises automatically. The courts are often required to consider how sale proceeds should be divided when a property is sold, particularly if one party has made a greater contribution towards the purchase of the property than another.

Question 33

What is a ‘constructive trust’?

Answer 33

This will arise where it would be unconscionable for the legal owner of property to deny the beneficial interest of another in the property. The two main elements that must be present for a constructive trust to be created are common intention and detrimental reliance.

Question 34

What is an ‘implied trust’?

Answer 34

A trust is created either expressly (e.g. by a trust deed) or by operation of law. An implied trust is a general way of describing a trust that arises by operation of law. Resulting and constructive trusts are examples of an implied trust.

Question 35

What is a ‘resulting trust’?

Answer 35

Where the legal estate is conveyed into the name of one party following the payment of some or all of the purchase price by another, the presumption of resulting trust means that the beneficial ownership results to the paying party in the proportion that their contribution bears to the purchase price

Question 36

What are ‘damages’?

Answer 36

A monetary sum awarded for a breach of contract, the general purpose being to compensate the injured party and to put the claimant in the same position as if the contract had been performed. If the claimant is successful, damages are available as of right.

Question 37

What is an ‘injunction’?

Answer 37

A court order prohibiting a person from taking a particular action or requiring them to take a particular action.

Question 38

What is ‘specific performance’?

Answer 38

This is an equitable remedy available for breach of contract and compels a party to perform its contractual obligations. It is often used in land law cases as the law recognises the special nature of a contract of the sale of land and recognises that damages may not always be an adequate remedy. It is a discretionary remedy that is not available as of right.