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stage 1 (Final deck) > Land > Flashcards

Land Flashcards

1
Q

What is an allodial title?

A

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

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2
Q

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

A

Rights in rem (against the whole world)

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3
Q

What are chattels real?

A

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

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

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4
Q

What is a hereditament?

A

Property that can be inherited

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5
Q

What are the types of hereditaments?

A
  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
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6
Q

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

A
  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
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7
Q

Who has rights over unattached items found on land?

A

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

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8
Q

List legal interests in land

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

(MERRP)

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9
Q

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

A

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

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10
Q

What are the rights of a co owner under TOLATA?

A

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.

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11
Q

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

A

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).

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12
Q

When is a possessory title granted?

A

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

eg: can be granted if title doc is lost

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13
Q

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

A

within 2 months of completion

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14
Q

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

A

As a notice on the charges register

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15
Q

Name the different equitable interests

A

Equitable mortgage
Restrictive covenant
Estate contract

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16
Q

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

A

Name of the owner

Not the property

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17
Q

Which interests override?

A
  1. Lease granted for 7 years or less
  2. Legal easements
  3. Legal land charge
  4. Actual occupation
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18
Q

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

A

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

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19
Q

Is a restrictive covenant a legal interest?

A

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

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20
Q

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

A

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)

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21
Q

What is a parol lease?

A

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

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22
Q

For a registered property, where is an easement registered?

A

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

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23
Q

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

A

For registered land: as a notice on the Charges Register

For unregistered land: as a Class F land Charge

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24
Q

What is a rentcharge?

A

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

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25
Q

What is the exception to paying 2 trustees for overreaching?

A

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

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26
Q

When is an equitable easement created?

A

When an easement is for an indefinite period of time

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27
Q

When does an interest not override a disposition?

A

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

Here, notice does not matter

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28
Q

How is the cost of maintaining an easement apportioned?

A

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

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29
Q

What is a quasi easement?

A

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

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30
Q

What is the Wheeldon v Burrows rule?

A

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

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31
Q

Can lease be granted over mortgaged property?

A

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.

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32
Q

Can a mortgagor sue for shortfall after foreclosure?

A

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

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33
Q

What is a clog on the equity of redemption?

A

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

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34
Q

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

A

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)

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35
Q

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

A

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

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36
Q

Where can a bankruptcy against an individual be serached?

A

Land Charges Register

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37
Q

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

A

When the property is occupied; Court order is required

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

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38
Q

What effect does a bankruptcy have on a joint tenancy?

A

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

39
Q

How can a JT be severed?

A

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

40
Q

Which register will contain details on legal rights?

A

The Property Register

41
Q

How is a legal easement noted on registers?

A

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)

42
Q

Against which type of land can a caution be registered?

A

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

43
Q

Against which type of land can a restriction be registered?

A

Unilateral notice or restriction can be registered against registered land

44
Q

What kind of leases cannot be created?

A

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

45
Q

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

A

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)

46
Q

What remedies does a LL have for commercial leases?

A

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

47
Q

What is the difference between surrender and merger of lease?

A

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

48
Q

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

A

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

49
Q

When does an assignment take place by operation of law?

A

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)

50
Q

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

A

It must involve some physical interference

51
Q

What kind of covenants pass on assignment after 1996?

A

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

52
Q

When can an easement NOT be claimed?

A

A leaseholder cannot claim easement against LL

Only a freehold owner can claim easement against another freehold owner

53
Q

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

A

The Property Register of the registered land

54
Q

How is an equitable mortgage noted for registered land?

A

As a notice in the Charges Register

55
Q

When will a positive covenant pass to successors?

A

When it is contained in a lease

Burden of a positive covenant does not usually bind successors

56
Q

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

A

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

57
Q

What kind of leases trigger first registration?

A

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

58
Q

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

A

As a Notice of Home Rights in the Charges Register

59
Q

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

A

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

60
Q

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

A

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

61
Q

When are trustees not required to act unaniously?

A

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

62
Q

Can a JT be severed unilaterially?

A

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.

63
Q

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

A

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

64
Q

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

A

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

65
Q

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

A

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

66
Q

How is a fixed term lease ended?

A

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

67
Q

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?

A

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 (

68
Q

What are concurrent interests?

A

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

69
Q

What is a qualified title?

A

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

70
Q

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

When does legal title transfer to the buyer?

A

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

71
Q

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?

A

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.

72
Q

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

A

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

73
Q

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

A

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

74
Q

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

A

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

75
Q

When does a power of sale arise?

A

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

76
Q

How are legal interest in land created?

A

by deed

77
Q

What is a Profit à prendre in gross?

A

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.

78
Q

What a Profit à prendre appurtenant?

A

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

79
Q

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

A

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

80
Q

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

A

In the deeds or by physical inspection of the property

81
Q

Land charges are registered against whose names?

A

Prp owner

82
Q

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

A

Estates in land – freeholds and leaseholds

Rentcharges.

Franchises.

Profit a pendre in gross

83
Q

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?

A

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

84
Q

What is a Jervis v Harris Clause?

A

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

85
Q

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

A

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

86
Q

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

A

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.

87
Q

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

A

Legal interest

88
Q

When can a possessory title be upgraded to absolute title?

A

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

89
Q

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

A

No. It only need to be in writing

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

90
Q

How is a restrictive covenant in registered title protected?

A

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

(it is an equitable interest)

91
Q

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

A

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.

92
Q

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

A

Registered as D(iii) land charge

93
Q
A
94
Q

How is an equitable mortgage protected?

A

Registered land: As notice on Property Register

Unregistered land: As a land charge

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