Land Flashcards
What is an allodial title?
Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord
What kind of rights does property (real or personal) give?
Rights in rem (against the whole world)
What are chattels real?
Leasehold land (classed as real property and NOT personal property)
Leaseholds are technically rights in the property but are still considered as real prop
What is a hereditament?
Property that can be inherited
What are the types of hereditaments?
- Corporeal hereditament (tangible object, which can be physically possessed; eg: land, plants growing on land, buildings
- Incorporeal hereditaments (intangible or invisible right against the land) Eg: easements, profits and rentcharges
What are the triggers for compulsory first registration as per LRA 2002?
- Transfer of freehold land
- Grant of lease (more than 7 yrs)
- Assignment of a lease (more than 7 yrs left to run)
- Grant of a first legal mortgage
Who has rights over unattached items found on land?
The finder acquires a title by possession.
But the landowner will have a better claim if the finder was a trespasser (not lawfully on the land).
The landowner has better rights in cases or items attached to or underneath land
List legal interests in land
- Mortgage
- Easements
- Rent charge
- Rights of entry
- Profit a pendre
(MERRP)
List equitable interests in unregistered land (registered in the Land Charges Register)
Class C land charges
C(i) puisne mortgage
C(ii) estate contract
Class D land charges
D(ii) restrictive covenant
D(iii) equitable easements
Class F land charges
Home occupation rights to spouse or civil partner of the matrimonial home
What are the rights of a co owner under TOLATA?
After 1996, co owners hold the property on a trust of land and there is no obligation to sell it. Trustees can sell the prop only when they are unanimous about it.
Before, 1996, it was held on trust of sale when they were under a constant duty to sell the prop unless the sale was unanimously postponed by the trustees.
What happens to the share of a prop when a joint tenant dies?
As per the doctrine of survivorship, their share automatically devolves to the surviving tenant (even if the deceased leaves their share in a will to someone else).
When is a possessory title granted?
It is granted on factual possession and NOT based on documentary evidence
eg: can be granted if title doc is lost
When should an application for 1st registration must be made to HMLR?
within 2 months of completion
How would a landowner’s right of way appear on the neighbor’s title?
As a notice on the charges register
Name the different equitable interests
Equitable mortgage
Restrictive covenant
Estate contract
What are land charges (of unregistered land) registered against?
Name of the owner
Not the property
Which interests override?
- Lease granted for 7 years or less
- Legal easements
- Legal land charge
- Actual occupation
Can a joint tenant sell their property w/o unanimous consent?
No (not since 1996)
The JTs hold property on trust of land and there is no obligation to sell. The land can only be sold with unanimous consent or 1 party can sell after Court order
Is a restrictive covenant a legal interest?
No (it can ONLY be equitable)
The benefit of a restrictive covenant passes in common law and is thus an extension of contract law and an equitable interest in land
When does a transfer of real property’s interest take effect?
When the transferor and (settlor) and transferees (trustees) sign the trust instrument before the Land Registry (which registers the existence of a trust by new legal owners)
What is a parol lease?
An oral lease that comes into effect on possession
Cannot be for more than 3 years (because then it needs to be evidenced in writing)
Must be at full market rent
For a registered property, where is an easement registered?
An entry for easement is put in the Property Register (because it is a legal right)
How can the right of actual occupation be registered for land?
For registered land: as a notice on the Charges Register
For unregistered land: as a Class F land Charge
What is a rentcharge?
a rentcharge is an annual sum paid by the owner of freehold land to the owner of the rentcharge, a person who need have no other legal interest in the land
(eg:payment for shared road)
What is the exception to paying 2 trustees for overreaching?
If a PR is acting as a trustee then paying only 1 PR will be enough to overreach
When is an equitable easement created?
When an easement is for an indefinite period of time
When does an interest not override a disposition?
When it is a gift (as there is no valuable consideration)
Here, notice does not matter
How is the cost of maintaining an easement apportioned?
If the grant does not specify, then the cost of maintenance is apportioned as per each party’s use
What is a quasi easement?
a quasi- easement arises one person owns a track of land and he uses one part of his land to benefit another part
For a quasi easement to operate, it must be in regular use and apparent
What is the Wheeldon v Burrows rule?
Established the Wheeldon rule, under which an easement may be implied by grant (NOT reservation) from a quasi-easement if it was:
1. continuous and apparent
2. necessary for the enjoyment of the property conveyed and
3. enjoyed by the vendor when he owned both the dominant and servient land
Applies when the lands were in common ownership
Can lease be granted over mortgaged property?
Yes, Section 99 gives the mortgagor the right to grant lease over mortgage prop and these will bind the lender.
However, this right can be specifically excluded in the mort deed and then the lender’s consent is required to grant a lease.
Can a mortgagor sue for shortfall after foreclosure?
No, as the mortgage is merged into the estate after being granted. Thus it no longer exists.
What is a clog on the equity of redemption?
Anything which obstructs the right of the mortgagor to redeem his property is void, and such obstruction constitutes a clog on the right to redemption
This can include postponing the right to redeem for an unreasonable length of time, making the right to redeem illusory, or imposing oppressive or unconscionable terms. The courts generally view such clogs as void and unenforceable, especially in domestic mortgages where the lender is in a stronger position.
However, in commercial transactions between knowledgeable and experienced parties, such restrictions are less likely to be considered oppressive.
How can a lender recover a shortfall after sale of the property?
It can sue the mortgagee for debt if there is no express repayment covenant in the mort deed (if the mort is not foreclosed already; the deed continues to have effect)
What is an effect of power of sale by a mortgagee?
The transfer happens free from all estates, rights and interests (interests are overreached) because the mort takes priority
Where can a bankruptcy against an individual be registered?
Land Charges Register
When is Court order required for taking possession of a property under mortgage?
When the property is occupied; Court order is required
(no permission required for sale or possession of unoccupied property)
What effect does a bankruptcy have on a joint tenancy?
The JT ends and the share of the bankrupt becomes a distinct share (thus a TIC)
But the other shares remain in JT (only bankrupt’s share is TIC)
How can a JT be severed?
By written notice of 1 party (which has INTENTION to sever the JT)
Which register will contain details on legal rights?
The Property Register
How is a legal easement noted on registers?
In the Property Register of the benefitted (dominant) land (as a benefit) and
Charges register of the servient land (as a burden)
(as a Notice in both register)
Against which type of land can a caution be registered?
Unregistered land (but this cannot be done by an owner of over 7 years)
Against which type of land can a restriction be registered?
Unilateral notice or restriction can be registered against registered land
What kind of leases cannot be created?
Leases of uncertain duration (maximum period to which they run)
+
takes effect more than 21 years from the date of grant
What can a tenant do if the LL does not carry out repairs as per the lease?
The tenant can deduct the actual cost of the repair from the rent payment
What remedies does a LL have for commercial leases?
Recovery of debt, Commercial Rent Arrears Recovery (CRAR) and commencing action to forfeit lease
What is the difference between surrender and merger of lease?
Surrender is a bilateral agreement b/w LL and tenant to terminate the lease
Merger is the tenant acquiring the LL’s interest in the premises
Can a lease ending on someone’s death be determinable?
Yes, leases that are determinable on death, marriage or civil partnership (for premium or rent) are converted into 90 year tenancy determinable on notice served after the specified event
When does an assignment take place by operation of law?
When a tenant does not retain a reversionary interest (an interest that reverts back to the settlor of a trust once a beneficiary’s interest has come to an end)
(eg: ST granted for more than the headlease)
What is an essential element of breaking quiet enjoyment of a lease?
It must involve some physical interference
What kind of covenants pass on assignment after 1996?
Only the burden of covenants pass even where the covenant does not touch and concern the land
Which interest holder cannot claim an easement?
A leaseholder cannot claim easement against LL
Only a freehold owner can claim easement against another freehold owner
In registered land, where would rights benefitting the property be recorded?
The Property Register of the registered land
How is an equitable mortgage noted for registered land?
As a notice in the Charges Register
When will a positive covenant pass to successors?
When it is contained in a lease
Burden of a positive covenant does not usually bind successors
What is the difference b/w a notice and a restriction?
A notice is an entry which appears in the Charges Register and which protects the priority of a third party interest in the property
A restriction is an entry made in the Proprietorship register of the title to freehold property, which restricts what dispositions (sales, mortgages, gifts etc) can be registered against the title
What kind of leases trigger first registration?
Leases for more than 7 years
+
take effect more than 3 months from the grant
How is a spousal right of occupation registered for land that is registered?
As a Notice of Home Rights in the Charges Register
What are the conditions under which a profit a pendre can be registred?
A profit in pendre in gross can be registered (as a notice on charges register) if:
1. it exists in its own right and is not annexed to land
2. held in fee simple or for a term of unexpired more than 7 years
3. granted by deed, prescription at common law or acquired under the doctrine of lost modern grant
4. in respect of something capable of ownership
On which register is the purchase price for a registered property available?
Purchase price is publicly available after 1 Apr 2000 and is available on Proprietorship Register in the Land Registry
When are trustees not required to act unaniously?
If the trust instrument provides for it.
Otherwise the trustees need to always act jointly and unanimously. If they cannot, then they need permission of the Court to implement non unanimous decisions
Can a JT be severed unilaterially?
Yes, by written notice of 1 party (to ALL JTs)
The notice giving party then becomes TIC in equity and the other parties remain as JTs.
What happens to the legal interest of a co-owners on the death of 1 party?
The legal interest in ALWAYS held in JT. Thus, the surviving partner becomes the sole legal owner.
If the equitable interest was in TIC, the share passes on through intestacy and the beneficiary shares the TIC with the sole (surviving) legal owner
What happens to a JT on the bankruptcy of 1 party?
The beneficial estate is split and passes on to the trustee in bankruptcy as a TIC
The bankrupt remains a JT of the legal estate
Can a restrictive covenant bind a buyer of an unregistered land?
For a restrictive covenant to be binding on a subsequent transferee of unregistered land, the covenant must be registered as a D(ii) land charge
How is a fixed term lease ended?
Surrender (by deed)
If there is a fixed term tenancy without a break clause, neither party may bring the tenancy to an end unilaterally before the term has expired.
However, the parties can mutually agree to bring the tenancy to an end. If the parties agree the tenant will give up possession to the landlord, this is known as surrender. The transfer to accomplish surrender must be done by deed
A landowner sold part of a field last year. The transfer to the buyer did not contain any provisions relating to rights. The landlord has taken a shortcut across the field to the public highway since the sale completed. The new owner of the field has told the landowner to cease using the shortcut and to use his existing driveway to access the public highway. The landowner does not want to do this because his existing driveway takes a very long route to the public highway. The landowner has visited their solicitor for some advice.
What advice will the solicitor give their landowner client?
The landowner is not entitled to use the right-of-way over the field, as he did not reserve the right of way when he sold that part of his field.
Generally, when a landowner sells part of their land, if they want to reserve any rights sold, they must do so explicitly (
What are concurrent interests?
two interests over the same piece of land and that exist alongside each other
What is a qualified title?
qualified title is granted when a specified interest is excepted from the effect of registration and is not covered by the guarantee of title which would otherwise be available
A buyer completed the purchase of a piece of land with registered title last week.
When does legal title transfer to the buyer?
In the registered land system, title does not pass from the seller to the buyer until registration of the disposition is completed at Her Majesty’s Land Registry
A brother and sister buy a piece of land together. Title to the land is registered. They enter into a declaration of trust on completion declaring that if the land is sold, the brother is entitled to 20% of sale proceeds and the sister 80%.
How will the declaration of trust be reflected on the register of title?
The declaration of trust will be reflected on the register of title as a Form A restriction on the Proprietorship Register.
A restriction is used to prevent any dealing with the land otherwise than in accordance with the terms of that restriction. Where property is owned as tenants in common, there will be a standard form of restriction (Form A) that appears in the Proprietorship Register. The Proprietorship Register indicates the current legal owners of the property. Here, the declaration of trust indicates the brother and sister hold the behind-the-scenes beneficial interest as tenants in common. Thus, there will be a Form A restriction on the Proprietorship Register to indicate the existence of their beneficial interests, though the detail of the contents of the declaration of trust will not appear on the register.
What are the conditions required to be met to enforce a benefit of a covenant to a covenantee’s successors in title?
The benefit of a covenant will be enforceable by a covenantee’s successors in title as long as:
1) the covenant touches and concerns the land of the covenantee;
2) the covenant was intended to run with the legal estate held by the covenantee;
3) at the time the covenant was made, the covenantee held the legal estate in the land to be benefitted; and
4) the assignee of the original covenantee now holds the legal estate
(benefit runs with the land if it touches and concerns the land)
What is the effect of a surrender of a headlease on the sublease?
If a head lease is ended by surrender, the sublease will not come to an end.
The subtenant will become the tenant of the head landlord on the terms of the sublease and will have to pay rent due under the sublease to the head landlord
When does the power of sale arise?
- Mortgage is made by deed
- Legal date of redemption (usually 6 months after mort comes into existence) has passed
- No exclusion of power of sale
When does a power of sale become exercisable?
The power of sale arises when the contractual date to redeem the mortgage has passed. However, the power of sale becomes exercisable only if one or more of the following is satisfied:
(1) interest payments are more than two months in arrears; OR
(2) there has been a written request for repayment of the capital and three months have passed without payment; OR
(3) there is a breach of some other term of the mortgage
How are legal interest in land created?
by deed
What is a Profit à prendre in gross?
An interest in land independent of other land which enables the owner of the interest to take something from the land of another (for example, timber or fish) and which may be registered with its own title at HMLR.
What a Profit à prendre appurtenant?
An interest in land attached to another piece of land which enables the owner of the interest to take something from the land of another (for example, timber or fish) and which may not be registered with its own title at HMLR
When does title pass with respect to a sale of unregistered land?
On completion of the sale (that is, when the price is paid, and a document of transfer is handed to the buyer’s solicitor)
Generally, if land is unregistered, where would a person find legal interests of third parties which are attached to the land?
In the deeds or by physical inspection of the property
Land charges are registered against whose names?
Prp owner
Which estates can be substantively registered (that is, be registered with their own title number and register) at HMLR?
Estates in land – freeholds and leaseholds
Rentcharges.
Franchises.
Profit a pendre in gross
How does section 14 of the Trusts of Land & Appointment of Trustees Act 1996 help co-owners resolve differences relating to disposal of their property?
It enables one co-owner to apply to the court for an order relating to a trustee’s duties to sell, obtain consent, or declare the nature of a person’s interest
What is a Jervis v Harris Clause?
A clause in a lease that gives the landlord the right to enter the premises and make to make a repair if the tenant breaches a covenant of repair, the landlord gives the tenant notice of the work to be done, and the tenant fails to comply
Is a subtenant liable to perform covenants in a head lease?
No, because there is no relationship between the head landlord and the subtenant.
If a lease contains an absolute covenant against assignment, may the tenant assign the lease?
No, but the tenant may ask the landlord to amend the covenant to permit assignment, which agreement should be formalised in a Deed of Variation of the lease.
An easement gained by prescription is treated as which type of interest?
Legal interest
When can a possessory title be upgraded to absolute title?
After 12 years since it was granted
Possessory title can be upgraded to absolute freehold title if the registered proprietor can show that the possessory title has not been challenged for 12 years since it was granted
Does a contract for sale of land need to be in a deed?
No. It only need to be in writing
[Deed required to convey or transfer property on completion NOT on sale]
How is a restrictive covenant in registered title protected?
As a notice on the Charges Register (of the burdened land)
(it is an equitable interest)
Where does a Notice appear in the case of registered land?
The notice must appear on the seller’s charges register, which is where any burdens or encumbrances that affect the land – such as covenants, mortgages, or, as here, an estate contract – must be entered.
How is an equitable easement protected if the title of the land is unregistered?
Registered as D(iii) land charge
How is an equitable mortgage protected?
Registered land: As notice on Property Register
Unregistered land: As a land charge
An unmarried couple purchased a house together in 2004. Both of their names appear on the proprietorship register, which contains a Form A restriction. One party has now died and their co-owner wants to sell the house and move to Spain.
What steps, if any, must be taken to enable the surviving co-owner to sell the property?
The surviving co-owner must ensure that a second trustee is appointed to act with them to overreach the deceased’s beneficial interest. The proprietorship register indicates the current legal owners of a property, that is, the holders of the legal estate. The legal estate must be held as joint tenants. Where the beneficial interest is owned as tenants in common, there will be a standard Form A restriction in the proprietorship register to prevent dealings with the land other than in accordance with the terms of that restriction. Here, the presence of a Form A restriction on the proprietorship register indicates the couple held the beneficial interest as tenants in common. For a buyer to take free of the deceased beneficiary’s interest, the purchase money must be paid to two or more trustees to effect a legal process called overreaching. Thus, the surviving co-owner must ensure that a second trustee is appointed to act with them in order to overreach the deceased’s beneficial interest. the Form A restriction indicates the beneficial interest was held as tenants in common, not as joint tenants. Thus, survivorship in relation to the beneficial interest does not apply. the surviving co-owner does not need to be transferred the deceased’s interest to sell the property. Rather, as explained above, the co-owner will appoint a second trustee to overreach the deceased’s interest. the deceased’s personal representative does not need to join in the surviving co-owner’s sale. The surviving co-owner will appoint a second trustee to join in the sale who may or may not be the deceased’s personal representative. an overriding interest is not applicable in this context. Overriding interests are interests which are capable of binding a buyer despite the fact that they are not on the register of title
A landowner owns a plot of farmland, the title to which is unregistered. There are currently no mortgages over the land. The landowner needs to raise capital to buy some machinery and decides to borrow £50,000 from a bank. The bank wants to take a charge over the land as security for the loan by the creation of a 25-year mortgage.
What best describes how the bank’s security will be protected following completion of the mortgage and drawdown of the loan?
The creation of a first legal charge will trigger first registration of the land and the mortgage will appear on the Charges Register of title to protect the lender’s security.
The creation of a first legal mortgage triggers first registration at His Majesty’s Land Registry (‘HMLR’) if the title to the land at the time of the mortgage is unregistered.
For registered land, a lender protects their interest by registering the charge at HMLR on the Charges Register of the title affected by the charge. Here, the bank’s first legal mortgage will trigger first registration of the farmland. Once registered, a register of title will be created and the bank’s interest will be included on the Charges Register of title. upon registration, the bank’s charge will be registered on the Charges Register, not the Property Register.
the lender would have held the deeds as security for the loan if the title had remained unregistered. However, as explained above, creation of a first legal mortgage triggers first registration. a C(i) puisne mortgage land charge is not relevant here. the lender must protect its interest. Registration protects the priority of the bank’s interest against that of a subsequent registrable disposition for value
A woman would like to purchase a house on a large plot of land. She intends to use the space in the rear of the property for a garden featuring her prizewinning roses. The woman has heard, though, that one of the property’s neighbours has a right-of-way over the land in question which would prevent her from planting her garden. The woman’s solicitor has sent her a copy of the register of title of the land.
Where should reference to the right-of-way appear on the title?
The Charges Register. The woman is interested in purchasing land which is subject to the burden of a right-of-way because another property enjoys an easement over that land. The burden of a right-of-way would appear on the Charges Register of the burdened title.
A landowner grants a right of way to a grantee in a legal deed of easement. Title to the dominant and servient tenement is registered.
How will the right burdening the landowner’s land be reflected on his register of title?
Legal easements are ones created by deed. The burden of a legal easement will appear as a notice on the Charges Register of the servient tenement (that is, the land burdened by the easement). Here, the landowner owns the servient tenement (the land burdened by the easement), so the burden will appear on the landowner’s Charges Register.
A homeowner borrows £50,000 from a bank. The loan is secured by a second mortgage over the homeowner’s house. The contractual date to redeem the mortgage is six months after creation of the mortgage. After six months, the homeowner is unable to repay the loan and falls three months behind in interest payments.
Can the bank exercise a power of sale over the property?
The bank may exercise a power of sale over the property because six months have elapsed since the homeowner entered into the mortgage and the interest payments are more than two months in arrears. A legal mortgagee has the power to sell a mortgaged property without the need to apply to a court, provided the contractual date set to redeem the mortgage has passed and other conditions, such as interest payments being more than two months in arrears, are satisfied. Here, the contractual date to redeem the mortgage was six months after the mortgage’s creation. This date has now passed, the homeowner has not made interest payments for three months, and therefore the power of sale has become exercisable. the fact that the bank has a second charge is irrelevant. A lender with a charge ranking behind another lender can still exercise a power of sale. Whether there will be any funds left after the sale to pay off the second charge is a concern for the second lender since the sale proceeds will be used to pay off the first charge before theirs. However, this is not relevant to whether the second lender has the right to exercise a power of sale. the bank will not necessarily need to take proceedings in the High Court. The venue for the proceedings will depend on the value of the claim. The second mortgagee does not need to secure the agreement of the first mortgagee to exercise the power of sale, but the first lender will be paid first out of the sale proceeds due to the doctrine of priority of mortgages.
What is a reversionary lease? And is it an overriding interest?
A reversionary lease is a lease that is set to commence at a future date, rather than immediately. In essence, it grants the lender a lease that does not take effect until a specified future date.
It is NOT an overriding interest (general principle: leases under 7 years are legal interest but reversionary leases are an exception when they come into effect (possession granted ) after 3 months
Reversionary leases that do not lead to immediate possession must be registered to be valid
What are overriding interests?
Overriding interests include:
rights which would only become apparent from an inspection of the land and enquiries made of the occupier (i.e. rights of persons in actual occupation);
charges in favour of a local authority (i.e. local land charges),
regarding the recording of overriding interests;
legal easements (e.g. rights of way); and
legal leases granted for terms of seven years or less.
What is a mortgagee/lender’s right to repossess? How is it exercisable?
A lender, or mortgagee, has the right to repossess a property if the borrower, or mortgagor, defaults on the mortgage.
This right can be exercised without a court order, as the mortgagee is entitled under common law to possession of the mortgaged property from the date the mortgage is executed, unless the mortgage agreement excludes this right.
The mortgagee can take possession peacefully, without using or threatening violence, and may also apply to the court for an order for possession.
The court has discretionary powers to grant relief to the borrower in repossession proceedings if their financial difficulty is likely to be temporary.
What is a license in relation to a lease?
A licence in the context of a lease is a legal document given by the landlord that grants permission to a leaseholder to carry out certain activities to their property, which would otherwise be prohibited under the terms of the lease. This can include activities such as assigning or sub-letting the lease. The licence must usually be in writing, in the form of a deed, and will not be effective until it is completed.
True or false? Fixtures pass automatically on sale of land.
False
Only fittings pass automatically on sale
True or false? It may be possible for a restrictive covenant to be enforced against a later owner of the burdened land, but a positive covenant might not be enforceable against successors in title.
True, a restrictive covenant may be enforced against successors in title, but a positive covenant might not be enforceable against successors in title.
True or false? Land charges in the unregistered system are registered against the property’s address.
False, they are registered against the full name of the person who was the estate owner when the land charge was created.
Is time of the essence in the rent review process?
Generally no
The tenant must pay the new rent from the date of review (and interest if any)
By which methods can a lease be surrendered?
By express deed
By conduct (MUST be accepted by LL)
What are service charge expenditures?
Service charge expenditure refers to the costs incurred by the landlord or management company in maintaining and repairing the common parts of a building or estate, as well as providing essential services such as heating and lighting.
These charges are typically paid by the tenants and are calculated based on a fixed proportion or the floor space let to the tenant.
The lease will usually contain a covenant by the tenant to pay a service charge to cover these costs. The service charge is often paid quarterly or half-yearly in advance, based on an estimation of the next year’s full service charge.
Residential tenants benefit from statutory protections ensuring that service charge expenditure is reasonably incurred and of a reasonable standard (otherwise the tenant can challenge quote).
For commercial leases, there is no statutory protection, and it is up to the tenant’s solicitor to ensure the provisions are fair.
When is a LL liable to pay compensation towards the cost of works?
When an improvement increases the cost of the property + LL has consented to the improvement
What are prescribed lease clauses and why are they necessary?
Prescribed lease clauses (PLCs) are a set of standard clauses with standard information that must appear at the beginning of any registrable lease.
They are necessary to quicken and simplify the registration process at the Land Registry and to result in a more accurate and complete Title Register
The clauses contain the information which HM Land Registry needs to complete the registration of the lease.
(necessary for registration)
How does forfeiture of a lease work?
Forfeiture of a lease is a process where a landlord terminates the lease and retakes possession of the property due to a tenant’s breach of lease covenants.
The process and implications vary depending on the type of breach. For non-payment of rent, the landlord can forfeit the lease by entering the premises or changing the locks, provided a forfeiture clause is included in the lease.
No court order is required if at least six months’ rent is in arrears and there are insufficient seizable goods on the premises. For other breaches, the landlord must serve a notice under s. 146 of the Law of Property Act 1925, specifying the breach and requiring it to be remedied.
How are covenants enforced in a building scheme?
A building scheme is a series of by-laws covering the area of a development, under which each individual householder can sue their neighbours directly in the event of a breach.
The owner of any plot in a building scheme can enforce restrictive covenants against any other plot owner, even if neither was a party to the document that imposed the covenants.
To establish a building scheme, four rules must be satisfied:
(i) The purchasers must all derive their titles from a common seller;
(ii) Before selling, the seller must have laid out the land in separate plots;
(iii) Following the sale, the same restrictions must be imposed on all plots, and it must be clear that those restrictions are intended to benefit all the plots sold;
(iv) Each purchaser must have bought their plot on the understanding that the covenants were intended to benefit all the other plots in the scheme.
The restrictive covenants are enforceable by all owners of plots within the scheme, irrespective of the order in which they or their predecessors acquired title.
How can a lease be forfeited?
Forfeiture of a lease is a process where a landlord terminates the lease and retakes possession of the property due to a tenant’s breach of lease covenants. The process and implications vary depending on the type of breach.
For non-payment of rent, the landlord can forfeit the lease by entering the premises or changing the locks, provided a forfeiture clause is included in the lease. No court order is required if at least six months’ rent is in arrears and there are insufficient seizable goods on the premises.
For other breaches, the landlord must serve a notice under s. 146 of the Law of Property Act 1925, specifying the breach and requiring it to be remedied. The tenant has the right to apply for relief from forfeiture, which, if granted, reinstates the lease.
The implications of forfeiture include the termination of the lease and potential loss of the tenant’s rights to the property. Sub-tenants may also be affected, as their sub-leases can be destroyed, although they can apply for relief from forfeiture.
How is rent review done?
The lease will specify the dates when each rent review will occur, known as the rent review dates.
The rent review is activated by the landlord serving a notice on the tenant, and in the absence of agreement, either party can appoint a surveyor to determine the revised rent.
The general rule is that time is not of the essence for rent reviews, meaning missing a deadline is not fatal unless the lease states otherwise.
Rent reviews can be upwards only, where the rent can only stay the same or increase, or upwards or downwards, where the rent can increase or decrease based on market conditions.
The tenant should ensure that any interest on the shortfall is not a penal rate and that the surveyor appointed is fully independent (cost is apportioned b/w parties)
What are factors that are important for rent review?
These include the review dates, which specify when each rent review will occur.
The method of review is also important and can include open market rent, index-linked rent, or fixed increases.
The service of notice is another key factor, as the rent review is activated by the landlord serving a notice on the tenant.
The appointment of a surveyor, who must be an independent valuer and a Member or Fellow of the Royal Institution of Chartered Surveyors, is essential if the parties cannot agree on the revised rent.
Lastly, the nature of the rent review clause, such as whether it is upwards only or allows for both upwards and downwards adjustments, significantly impacts the rent review process.
Is demand necessary for recovery of rent?
A formal demand for the recovery of rent in a lease agreement is not always necessary. If the lease contains a clause that entitles the landlord to forfeit ‘whether formally demanded or not,’ then no formal demand is required.
Additionally, no formal demand is necessary if at least six months’ rent is in arrears and there are insufficient seizable goods on the premises to satisfy the sum due.
(other sums due like service charge MUST be demanded first)
What is the limitation period for demanding rent and other arrears?
The limitation period for demanding rent arrears is six years from the date the debt becomes due, regardless of whether the lease was created by deed or under hand.
For service charges, the limitation period is also six years from the date the sum becomes due. However, if the lease was created by deed, the limitation period for recovery of service charges is 12 years.
What will happen if a lease ends and the tenant stays in the premises with the landlords permission?
If a lease ends and the tenant remains in the premises with the landlord’s permission, a periodic or ‘rolling’ tenancy may be implied from the time when the rent falls due.
This means the tenant continues to occupy the property under the same terms as the original lease, but without a fixed end date.
The tenancy will continue until either the landlord or the tenant gives proper notice to terminate it.
What is a trust of sale?
A trust for sale is a type of trust where the trustees are obligated to sell the trust property and hold the proceeds of the sale on trust for the beneficiaries.
Historically, this type of trust was imposed by statute, such as under the Law of Property Act 1925, when land was owned by two or more persons jointly or as tenants in common.
(all trusts of sale are now converted to trusts of land AUTOMATICALLY)
When is a receiver appointed?
A receiver can be appointed by the mortgagee as an alternative to taking possession of the property, provided that the mortgage was created by deed and the legal date for redemption has passed.
The receiver is appointed to collect income from the land and apply it towards paying off outgoings on the land, any prior mortgages, and finally, the interest and capital under the lender’s mortgage. This power is exercisable without recourse to the courts.
Is a mortgagee allowed to insure a property?
Yes
This power is implied on the part of the mortgagee to insure the property if the mortgagor fails to do so. Any premiums paid by the mortgagee for this insurance will form part of the mortgage debt.
What are the ways in which a JT can be severed?
A joint tenancy can be severed in several ways:
(1) Notice in Writing: A co-owner can unilaterally sever the joint tenancy by delivering a written notice of severance to the other joint tenant(s). The notice must be clear with an immediate and irrevocable intention to sever.
(2) Mutual Agreement: All joint tenants can agree to sever the joint tenancy, either orally or in writing, with a clear intention to sever.
(3) One of the Persons Acting upon His Own Share: A joint tenant can sever the joint tenancy by taking unilateral action, such as selling or mortgaging their beneficial interest.
(4) Act of a Third Party: For example, the bankruptcy of a joint tenant can result in severance.
(5) Course of Dealing: The joint tenants may, through their dealings, demonstrate that their interests have become a tenancy in common
(6) Homicide: The forfeiture rule prevents a person from acquiring a benefit from unlawfully killing another joint tenant.
What does physical partition mean for a JT?
It means that the JT is severed
or the co-ownership is terminated
(depending on the course of conduct)
What is a good leasehold title?
A good leasehold title is granted when the lessor’s (landlord’s) title is not registered with absolute title, or is unregistered, and there is no evidence to confirm that the lessor was entitled to grant the lease.
This means that while the leaseholder has a valid lease, there may be issues or uncertainties regarding the freeholder’s ownership of the property.
when is an agreed notice registered?
An agreed notice is registered when the applicant is the registered proprietor or expected to be such, if
the registered proprietor consents to the entry of the notice, or
if the applicant can satisfy the Registrar that the interest claimed is valid.
(only for registered land)
What is a caution re land interests?
A caution in the context of land registration is an entry on the Proprietorship Register to protect certain types of interests in the land.
It was used when the proprietor’s cooperation in producing the land certificate or charge certificate was not forthcoming, making it a more hostile step compared to entering a notice.
The effect of entering a caution was that the Registrar was obliged to serve notice on the cautioner when any application was made to register a dealing with the land.
This notice gave the cautioner a specific period to show cause why the caution should continue to be effective or why the dealing should not be registered. A caution against first registration could also be entered by anyone claiming an interest in unregistered land, allowing them to object to its disposition.
(can only be used by owner of under 7 years)
In which lease does a LL have a mandatory covenant of repair?
if the lease is less than 7 years and the tenant does not have right of renewal, then the LL has the repairing covenants on them
Which parties cannot enforce covenant against each other?
LL and tenant with no privity of contract or estate
Tenants (no direct contractual relationship with each other; unless building scheme)
What is the implied covenant not to derogate from grant?
The implied covenant of not to derogate from grant prevents the landlord from interfering with the tenant’s use and enjoyment of the property.
This covenant ensures that the landlord does not take actions that would undermine the purpose for which the property was leased to the tenant.
While it is similar to the covenant of quiet enjoyment, a breach of one does not necessarily mean a breach of the other. For instance, a landlord may derogate from grant by building on adjoining land, which could hinder the tenant’s proper use of the premises without causing physical interference.
However, actions by the landlord that merely make the tenant’s business less profitable, such as leasing a neighbouring shop to a competitor, do not constitute a derogation from grant.
Against whom can a prescription not be claimed?
A prescription cannot be claimed against a landowner who does not have the capacity to grant an easement. This means that only a freeholder has the ability to grant an easement for the equivalent of a fee simple.
Therefore, a leaseholder cannot prescribe for the benefit of his or her lease.
Additionally, a tenant of dominant land cannot acquire rights by prescription against his own landlord.
(exception: prescription of light)
How is an equitable mortagge created?
An equitable mortgage is created when there exists a contract to create a legal mortgage, or the parties have purported to grant a legal mortgage but have neglected to execute the document as a deed,
This means that the mortgage is not formalised as a deed, but there is still an agreement in place that indicates the intention to create a mortgage.
In which ways can a reservation of an easement be made?
ONLY 2 ways:
- Necessity
- Common intention
When does the benefit and burden of covenants pass to successors in title?
When they are contained in the lease
The benefit and burden of covenants can pass to successors in title under specific conditions.
The burden of a covenant can only pass in equity and typically applies to restrictive covenants, as established in Tulk v Moxhay. For the burden to pass, the covenant must be negative, touch and concern the land, and the successor must have notice of the covenant.
The benefit of a covenant can pass at both law and equity and can apply to both positive and negative covenants.
At common law, the benefit passes automatically if the covenant touches and concerns the land, the original parties intended the benefit to run with the land, and the successor in title derives a benefit from the covenant.
In equity, the benefit can pass through annexation, assignment, or a building scheme.
What is a general equitable charge for unregistered land?
A general equitable charge on unregistered land is applied when there is an equitable interest in the property that is not specifically excluded by the Land Charges Act 1972.
This includes charges not protected by the deposit of title deeds, such as an equitable mortgage without title deeds, an informal mortgage to secure a temporary loan, a charging order to secure a judgment debt, or a seller’s lien for an unpaid purchase price.
These charges must be registered as a Class C(iii) land charge against the name of the estate owner at the time the charge is created to bind a purchaser.
Where will we find a legal mortgage for unregistered land?
A legal mortgage for unregistered land can be found by examining the title deeds held by the mortgagee.
The mortgagee of unregistered land holds the title deeds as security, which prevents the owner from selling the land without contacting the mortgagee.
(notice in the title deeds)
What is a light obstruction notice?
It allows the owner of land over which light passes to a building to interrupt the enjoyment of light without the need for a physical obstruction.
This is done by obtaining a certificate from the Lands Chamber and applying to the local authority or the Land Registry for the registration of the notice in the Local Land Charges Register.
The notice, once registered, is treated as if it has physically obstructed the light for the purposes of determining whether a person is entitled to a prescriptive right to light. The notice remains effective for one year from the date of registration, during which the dominant owner must take action if they wish to challenge it.
What are ownership rights of land beneath the surface?
The owner of the surface land is also the owner of the strata beneath it (up to 300 m), including any minerals found there, unless there has been a conveyance or statutory alienation to someone else.
Where do we find a legal mortgage for registred land?
on the Charges Register
(deed+ charges register to be legal mort)
What is the effect of severance when there are more than 2 joint tenants?
When there are more than two joint tenants, severance by one tenant will result in that tenant becoming a tenant in common with respect to their share, while the remaining joint tenants will continue to hold their shares as joint tenants.
For example, if A, B, and C are joint tenants and C severs the joint tenancy, C will hold a one-third share as a tenant in common, whereas A and B will continue to hold the remaining two-thirds as joint tenants.
What is a Form SEV used for?
To complete Form SEV for the severance of a joint tenancy, you need to provide specific details and evidence depending on the circumstances of the severance.
The form requires information about the property, the registered proprietors, and the method of severance.
If the application is made by all registered proprietors, no further evidence is required. If not, you need to include the original or a certified copy of the document evidencing the severance, such as a notice of severance or a signed acknowledgment of receipt by the other registered proprietors.
The applicant’s conveyancer must certify that they hold the original or a certified copy of the document. The completed form and accompanying evidence should then be submitted to the Land Registry.
What is a Section 146 notice to a tenant?
It is a LL’s notice for forfeiture for breach of covenant
The LL peacefully takes re-entry/possession of prop
When is a Section 146 notice waived?
When the breach is due to non-payment by tenant
Then LL can re enter premises w/o notice
How long does the LL have to write to a tenant to be released from its covenants?
4 weeks (LL released even if no reply)
Tenant is automatically released
(post 1996 leases)
How can a tenant get relief from forfeiture of a lease?
Relief from forfeiture allows a tenant to apply to the court to have their lease reinstated after it has been forfeited by the landlord.
The court has the discretion to grant relief if it is just and equitable to do so, provided the tenant pays all arrears and the landlord’s costs.
Or pay outstanding rent within 5 days of hearing
The High Court can grant relief even after six months of the landlord’s re-entry, while the County Court can grant relief within six months of re-entry.
Additionally, the tenant can apply for relief if the landlord has forfeited the lease by peaceable re-entry, and the court will consider the length of the tenant’s delay in making the application.
When can a landlord forefeit a lease?
A landlord can forfeit a lease for non-payment of rent or for breaches of other lease covenants.
For non-payment of rent, the landlord can forfeit the lease by entering the premises or changing the locks, provided a forfeiture clause is included in the lease. No formal demand is necessary if at least six months’ rent is in arrears and there are insufficient seizable goods on the premises.
For breaches of other covenants, the landlord can either peaceably re-enter the premises or apply for a court order to gain possession. The landlord must avoid using force during physical re-entry, and court proceedings must be used to evict a tenant from a residential dwelling. Notice is a MUST
What is the self help remedy for a tenant against a breach of repair covenant?
A tenant can use self-help remedies for a landlord’s breach of a repair covenant if the landlord fails to carry out necessary repairs.
The tenant must first inform the landlord, as a NOTICE, that they will undertake the repairs unless the landlord complies with their obligations.
If the landlord does not act, the tenant can then proceed with the repairs and recover the costs by withholding rent.
(this remedy might give LL right to forfeit if the notice is not given)
What are limitations on the power of possession?
For a mortgagee, while they are generally entitled to possession of the mortgaged property from the date the mortgage is executed, this right can be limited by the terms of the mortgage agreement or by statutory provisions.
For instance, the court has discretionary powers to grant relief to the borrower in repossession proceedings if their financial difficulty is likely to be temporary.
Additionally, the mortgagee must act in good faith and cannot use or threaten violence to secure entry to residential premises
