Land 1: Nature and Interests Flashcards
How can a legal interest in land be created?
Only by deed
Exception of some easements:
- implied into deed
- through perscription
What is Land (Corporeal Hereditaments / Incorporeal Hereditaments)
Corporeal Hereditaments
- Tangible including: surface of land, buildings, minerals, plants, air and fixtures
Incorporeal Hereditaments
- Intangibles: rights, easements and rent
Limitation of Airspace
Owner allows only heights as is necessary for the ordinary use and enjoyment of land and structures on it.
Limits on ownership of ground
Freehold owner not entitled to all minerals under his land:
- coal, oil and natural gas subject to statute
- Gold, silver and treasure belongs to crown
Limits on wild animals, running water and development of buildings
Wild animals not owned but do have right to hunt them
Running water: landowner can draw water from source only if have licence
Development of buildings generally subject to planning permission
What does something being a fixture vs fitting have in sale of land // and what is general difference between the two
Fixture = passes automatically
Fixture is affixed/annexed to land or a building so that it becomes part of the land or building.
Test to decide if fixture or fitting
- degree of annexation test
- greater the degree of attachment to the land, the more likely item is fixture (ie does it stand on its own weight) - Purpose of Annexation
- Was the item brought onto land with intent to make a permanent improvement or only temporary one. (statues as part of architectural design = fixture even if not attached)
Test 2 prevails over test 1 if they are opposed
Freehold Land Characteristics
Estate of uncertain duration
Leasehold Land Characteristics
Estate of fixed maximum duration
Commonhold Land Characteristics
Used for some flats and commercial leases on business parks.
Rights and duties of unit holders contained in Commonhold Community Statement which bind/benefits successive unit holders
Land registered as common hold and each unit holder will be member of Commonhold Association and will be registered as freehold owner of unit
Association is a company limited by guarantee, and each member will be unit holders
Creation of Commonhold conditions?
Creation requires following conditions:
- registered as a ‘freehold estate in common hold land’,
- Memorandum of Commonhold Association to specify the land
- Commonhold Community Statement for the rights and duties of the Association and of the unit holders
Legal Interest in Land (general)
- Mortgages
- Easements
- Rentcharges
- Profits a Prendre
- Rights of Entery
What is a mortgage // requirements
Legal interest in land
- loan secured on property enabling lender to rights including right to sell property in case of default
Requirements
- must be executed by deed
- first legal mortgage triggers first registration of unregistered land
What is an Easement?
Legal interest in land
- right that exists over a piece of land (servant tenement) which benefits a different piece of land (dominant tenement)
- Eg right of way over land or right to use pipes crossing land
What is a Rentcharge // Estate Rentcharge
Legal interest in land
- requiring land owner to make periodic payment in respect of land to the rent charge owner
- gives rent charge owner right of entry which can allow them to take possession in case of default (so can be used to enforce positive covenant)
- cannot arise from lease or tenancy and is not same as lease or tenancy
Estate Rentcharge
- common in property development where owner maintains ownership of communal areas and charges rent charge for upkeep
What is Profit a Prendre
Legal interest in land
- enabling someone to take something from land of another (ie timber, fish..)
Profit a Prendre in Gross
- can exist independent of land
- can be substantially registered at HMLR
- can be exercised for the personal benefit of the owner and can be bought and sold independently
Profit a Prendre Appurtenant
- attached to particular piece of land (owner of land has the right)
- cannot be registered at HMLR with own title
Right of Entry
Legal interest in land
- include rights of entry contained in leases and annexed rent charges
When is an equitable interest in land / differences to legal interests
Where there is an attempt to create a legal interest but deed formalities are not met.
Legal interests bind all third parties
Equitable interests bind only third parties who are not bona fide purchasers for value of a legal estate without notice
Name all equitable interests in land (general)
- Equitable Mortgages
- Restrictive Covenants
- Positive Covenants
- Estate Contracts
What is an Equitable Mortgage
Mortgage not property created by deed can be an equitable mortgage
Requires
- sufficient evidence in writing as to terms
What is a restrictive/positive covenant
Promise to/not to do something
Due to privity of contract this will bind the original parties.
May be possible for NEGATIVE covenant to bind third parties
Positive covenentant may not be binding on third parties s
What is an estate contract
Where parties enter into contract to buy land or have option to buy land
