Land

Question 1

What is an allodial title?

Answer 1

Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord

Question 2

What kind of rights does property (real or personal) give?

Answer 2

Rights in rem (against the whole world)

Question 3

What are chattels real?

Answer 3

Leasehold land (classed as real property and NOT personal property)

Leaseholds are technically rights in the property but are still considered as real prop

Question 4

What is a hereditament?

Answer 4

Property that can be inherited

Question 5

What are the types of hereditaments?

Answer 5

1. Corporeal hereditament (tangible object, which can be physically possessed; eg: land, plants growing on land, buildings
2. Incorporeal hereditaments (intangible or invisible right against the land) Eg: easements, profits and rentcharges

Question 6

What are the triggers for compulsory first registration as per LRA 2002?

Answer 6

1. Transfer of freehold land
2. Grant of lease (more than 7 yrs)
3. Assignment of a lease (more than 7 yrs left to run)
4. Grant of a first legal mortgage

Question 7

Who has rights over unattached items found on land?

Answer 7

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

Question 8

List legal interests in land

Answer 8

1. Mortgage
2. Easements
3. Rent charge
4. Rights of entry
5. Profit a pendre

(MERRP)

Question 9

List equitable interests in unregistered land (registered in the Land Charges Register)

Answer 9

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

Question 10

What are the rights of a co owner under TOLATA?

Answer 10

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.

Question 11

What happens to the share of a prop when a joint tenant dies?

Answer 11

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).

Question 12

When is a possessory title granted?

Answer 12

It is granted on factual possession and NOT based on documentary evidence

eg: can be granted if title doc is lost

Question 13

When should an application for 1s registration must be made to HMLR?

Answer 13

within 2 months of completion

Question 14

How would a landowner’s right of way appear on the neighbor’s title?

Answer 14

As a notice on the charges register

Question 15

Name the different equitable interests

Answer 15

Equitable mortgage
Restrictive covenant
Estate contract

Question 16

What are land charges (of unregistered land) registered against?

Answer 16

Name of the owner

Not the property

Question 17

Which interests override?

Answer 17

1. Lease granted for 7 years or less
2. Legal easements
3. Legal land charge
4. Actual occupation

Question 18

Can a joint tenant sell their property w/o unanimous consent?

Answer 18

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

Question 19

Is a restrictive covenant a legal interest?

Answer 19

No

The benefit of a restrictive covenant passes in common law and is thus an extension of contract law and an equitable interest in land

Question 20

When does a transfer of real property’s interest take effect?

Answer 20

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)

Question 21

What is a parol lease?

Answer 21

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

Question 22

For a registered property, where is an easement registered?

Answer 22

An entry for easement is put in the Property Register (because it is a legal right)

Question 23

How can the right of actual occupation be registered for land?

Answer 23

For registered land: as a notice on the Charges Register

For unregistered land: as a Class F land Charge

Question 24

What is a rentcharge?

Answer 24

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

Question 25

What is the exception to paying 2 trustees for overreaching?

Answer 25

If a PR is acting as a trustee then paying only 1 PR will be enough to overreach

Question 26

When is an equitable easement created?

Answer 26

When an easement is for an indefinite period of time

Question 27

When does an interest not override a disposition?

Answer 27

When it is a gift (as there is no valuable consideration)

Here, notice does not matter

Question 28

How is the cost of maintaining an easement apportioned?

Answer 28

If the grant does not specify, then the cost of maintenance is apportioned as per each party’s use

Question 29

What is a quasi easement?

Answer 29

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

Question 30

What is the Wheeldon v Burrows rule?

Answer 30

Established the Wheeldon rule, under which an easement may be implied by grant 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

Question 31

Can lease be granted over mortgaged property?

Answer 31

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.

Question 32

Can a mortgagor sue for shortfall after foreclosure?

Answer 32

No, as the mortgage is merged into the estate after being granted. Thus it no longer exists.

Question 33

What is a clog on the equity of redemption?

Answer 33

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

Question 34

How can a lender recover a shortfall after sale of the property?

Answer 34

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)

Question 35

What is an effect of power of sale by a mortgagee?

Answer 35

The transfer happens free from all estates, rights and interests (interests are overreached) because the mort takes priority

Question 36

Where can a bankruptcy against an individual be serached?

Answer 36

Land Charges Register

Question 37

When is Court order required for taking possession of a property under mortgage?

Answer 37

When the property is occupied; Court order is required

(no permission required for sale or possession of unoccupied property)

Question 38

What effect does a bankruptcy have on a joint tenancy?

Answer 38

The JT ends and the share of the bankrupt becomes a distinct share (thus a TIC)

Question 39

How can a JT be severed?

Answer 39

By written notice of 1 party (which has INTENTION to sever the JT)

Question 40

Which register will contain details on legal rights?

Answer 40

The Property Register

Question 41

How is a legal easement noted on registers?

Answer 41

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)

Question 42

Against which type of land can a caution be registered?

Answer 42

Unregistered land (but this cannot be done by an owner of over 7 years)

Question 43

Against which type of land can a restriction be registered?

Answer 43

Unilateral notice or restriction can be registered against registered land

Question 44

What kind of leases cannot be created?

Answer 44

Leases of uncertain duration (maximum period to which they run)
+
takes effect more than 21 years from the date of grant

Question 45

What can a tenant do if the LL does not carry out repairs as per the lease?

Answer 45

The tenant can deduct the actual cost of the repair from the rent payment

(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)

Question 46

What remedies does a LL have for commercial leases?

Answer 46

Recovery of debt, Commercial Rent Arrears Recovery (CRAR) and commencing action to forfeit lease

Question 47

What is the difference between surrender and merger of lease?

Answer 47

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

Question 48

Can a lease ending on someone’s death be determinable?

Answer 48

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

Question 49

When does an assignment take place by operation of law?

Answer 49

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)

Question 50

What is an essential element of quiet enjoyment of a lease?

Answer 50

It must involve some physical interference

Question 51

What kind of covenants pass on assignment after 1996?

Answer 51

Only the burden of covenants pass even where the covenant does not touch and concern the land

Question 52

When can an easement NOT be claimed?

Answer 52

A leaseholder cannot claim easement against LL

Only a freehold owner can claim easement against another freehold owner

Question 53

In registered land, where would rights benefitting the property be recorded?

Answer 53

The Property Register of the registered land

Question 54

How is an equitable mortgage noted for registered land?

Answer 54

As a notice in the Charges Register

Question 55

When will a positive covenant pass to successors?

Answer 55

When it is contained in a lease

Burden of a positive covenant does not usually bind successors

Question 56

What is the difference b/w a notice and a restriction?

Answer 56

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

Question 57

What kind of leases trigger first registration?

Answer 57

Leases for more than 7 years
+
take effect more than 3 months from the grant

Question 58

How is a spousal right of occupation registered for land that is registered?

Answer 58

As a Notice of Home Rights in the Charges Register

Question 59

What are the conditions under which a profit a pendre can be registred?

Answer 59

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

Question 60

On which register is the purchase price for a registered property available?

Answer 60

Purchase price is publicly available after 1 Apr 2000 and is available on Proprietorship Register in the Land Registry

Question 61

When are trustees not required to act unaniously?

Answer 61

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

Question 62

Can a JT be severed unilaterially?

Answer 62

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.

Question 63

What happens to the legal interest of a co-owners on the death of 1 party?

Answer 63

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

Question 64

What happens to a JT on the bankruptcy of 1 party?

Answer 64

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

Question 65

Can a restrictive covenant bind a buyer of an unregistered land?

Answer 65

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

Question 66

How is a fixed term lease ended?

Answer 66

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

Question 67

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?

Answer 67

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 (

Question 68

What are concurrent interests?

Answer 68

two interests over the same piece of land and that exist alongside each other

Question 69

What is a qualified title?

Answer 69

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

Question 70

A buyer completed the purchase of a piece of land with registered title last week.

When does legal title transfer to the buyer?

Answer 70

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

Question 71

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?

Answer 71

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.

Question 72

What are the conditions required to be met to enforce a benefit of a covenant to a covenantee’s successors in title?

Answer 72

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

Question 73

What is the effect of a surrender of a headlease on the sublease?

Answer 73

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

Question 74

What is the effect of a surrender of a headlease on the sublease?

Answer 74

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

Question 75

When does a power of sale arise?

Answer 75

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;

(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

Question 76

How are legal interest in land created?

Answer 76

by deed

Question 77

What is a Profit à prendre in gross?

Answer 77

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.

Question 78

What a Profit à prendre appurtenant?

Answer 78

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

Question 79

When does title pass with respect to a sale of unregistered land?

Answer 79

On completion of the sale (that is, when the price is paid, and a document of transfer is handed to the buyer’s solicitor)

Question 80

Generally, if land is unregistered, where would a person find legal interests of third parties which are attached to the land?

Answer 80

In the deeds or by physical inspection of the property

Question 81

Land charges are registered against whose names?

Answer 81

Prp owner

Question 82

Which estates can be substantively registered (that is, be registered with their own title number and register) at HMLR?

Answer 82

Estates in land – freeholds and leaseholds

Rentcharges.

Franchises.

Profit a pendre in gross

Question 83

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?

Answer 83

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

Question 84

What is a Jervis v Harris Clause?

Answer 84

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

Question 85

Is a subtenant liable to perform covenants in a head lease?

Answer 85

No, because there is no relationship between the head landlord and the subtenant.

Question 86

If a lease contains an absolute covenant against assignment, may the tenant assign the lease?

Answer 86

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.

Question 87

An easement gained by prescription is treated as which type of interest?

Answer 87

Legal interest

Question 88

When can a possessory title be upgraded to absolute title?

Answer 88

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

Question 89

Does a contract for sale of land need to be in a deed?

Answer 89

No. It only need to be in writing

[Deed required to convey or transfer property on completion NOT on sale]

Question 90

How is a restrictive covenant in registered title protected?

Answer 90

As a notice on the Charges Register (of the burdened land)

(it is an equitable interest)

Question 91

Where does a Notice appear in the case of registered land?

Answer 91

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.

Question 92

How is an equitable easement protected if the title of the land is unregistered?

Answer 92

Registered as D(iii) land charge

Question 94

How is an equitable mortgage protected?

Answer 94

Registered land: As notice on Property Register

Unregistered land: As a land charge

Question 95

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?

Answer 95

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

Question 96

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.

Which of the following best describes how the bank’s security will be protected following completion of the mortgage and drawdown of the loan?

Answer 96

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

Question 97

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?

Answer 97

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.

Question 98

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?

Answer 98

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.

Question 99

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?

Answer 99

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.