Land Flashcards
1
Q
What is a chattel?
A
Moveable property, such as furniture, books, cards and pictures
2
Q
What is a fixture?
A
Fixtures are considered party of the land
3
Q
What is the problem with fixtures/chattels?
A
When selling a house, contract is often silent on individual parts. If fixtures then part of the sale, if chattels then can be removed.
4
Q
What is the two part test for fixtures/chattels?
A
- Method and degree of annexation
2. Object and purpose of annexation
5
Q
What is the method and degree of annexation test?
A
- If easily removable and unlikely to cause damage then CHATTEL
- If item is securely attached then FIXTURE
6
Q
What cases are used for the presumptions (fixtures and chattels)?
A
Buckland v Butterfield - securely attached = fixture
Berkley v Poulett - freestanding items = chattel
7
Q
What is the object and purpose of annexation test?
A
This can REBUT the first part of the test.
It is more important.
If intended to improve the land then likely to be a fixture
If chattel affixed is to allow to be better enjoyed as a chattel then can be rebutted
8
Q
What are light fittings, carpets, curtains, white goods etc? [Case law]
A
Chattel [Botham v TSB Bank]
9
Q
What is a landscaped garden? [Case law]
A
Fixture as part of the architectural design [D’Eyncourt v Gregory]
10
Q
What is a picture on the wall?
[Case law]
A
If hung merely to be displayed then chattel [Leigh v Taylor]
If hung within panelled walls, or part of overall architecture then fixtures [D’Eyncourt v Gregory]
11
Q
What is a bungalow? [Case law]
A
Fixture [Elitestone v Morris]
12
Q
What is a gas fire? [Case law]
A
If merely standing by its own weight and is only connected by a gas pipe, not a fixture as the connection is only necessary to enable it to be used [Botham]
13
Q
What is a statue? [Case law]
A
If statue is able to be remoevd without causing damage and doesn’t form part of design then chattel [Berkley and D’Eyncourt]
14
Q
What is a licence?
A
This allows someone to use land in someway, but there is NO PROPRIETARY INTEREST in it
15
Q
What can be licenced? [Case law]
A
ANYTHING [Thomas v Sorrell]
16
Q
What is a bare licence?
A
Licence is granted for no consideration and can be revoked at any time
17
Q
What is a contractual licence?
A
Licence is supported by consideration, therefore may give damages for breach of contract
18
Q
Is a freehold estate capable of being legal? [Statute]
A
YES
s1(1)a LPA 1925
19
Q
What formalities are needed for a legal freehold estate? [Statute]
A
Deed (s52(1) LPA 1925) - Intention - Signed - Witnessed - Delivered s1 LP(MP)A
20
Q
How is a freehold estate enforceable in an unregistered system?
A
- It is not registrable on Land Charges register
- It legal
- Therefore it binds the world
21
Q
Is a leasehold estate capable of being legal?
A
YES
S1(1)b LPA 1925
Must have
- Exclusive possession
- Certainty of duration
22
Q
What formalities are needed for a legal leasehold estate?
A
Deed (s52(1) LPA 1925) - Intention - Signed - Witnessed - Delivered s1 LP(MP)A
23
Q
What is the parol lease exception?
A
s54(2) LPA 1925 Oral agreement allowed if 1. The lease is under 3 years 2. It takes effect immediately 3. They are granted the best rent (eg not lump sum)
24
Q
How is a leasehold estate enforceable in an unregistered system?
A
- Not registrable on the land charges register
- It is a legal interest
- Therefore it binds the world
25
How is a leasehold estate enforceable in a registered system?
If lease OVER 7 YEARS then it is a registrable disposition
- Must register at Land Registry by the date of registration of the buyer
If lease UNDER 7 YEARS then it is an overriding interest under Sch 3 Para 1
26
What is an easement?
A right of privilege attached to a piece of land, imposing a corresponding burden on another
27
What is an example of an easement?
Right of way
Right to light
28
Is an easement capable of being legal?
s1(2)(a) LPA 1925 it is capable of being legal
Must be for a term of years
- Absolute
- Forever
If uncertain then equitable
29
What formalities are needed for a legal easement?
```
Deed (s52(1) LPA 1925)
- Intention
- Signed
- Witnessed
- Delivered
s1 LP(MP)A
```
30
How is a legal easement enforceable in an unregistered system?
1. Not registrable on Land Charges register
2. Legal interest
3. Binds the world
31
How is a legal easement enforceable in a registered system?
It is a registrable disposition (s27 LRA 2002)
Must register at Land Registry by date of registration of buyer/mortgage
32
What is a mortgage?
An interest in land given as security for a loan
33
Is a mortgage capable of being legal?
Yes s1(2)(c) LPA 1925
It is capable of being legal
34
What are the formalities needed for a mortgage?
```
Deed (s52(1) LPA 1925)
- Intention
- Signed
- Witnessed
- Delivered
s1 LP(MP)A
```
35
How is a mortgage enforceable in an unregistered system?
1. Not registrable at Land Charges register
2. Legal interest
3. Therefore binds the world
36
How is a mortgage enforceable in a registered system?
Must register at the Land Registry by date of registration of buyer/mortgage
37
What is a restrictive covenant?
Something preventing or enforcing someone else to do something
38
Example of a restrictive covenant?
- Not to erect any building within 5m of boundary
| - To pay for the upkeep of the road
39
Is a restrictive covenant capable of being legal?
No
It is equitable under s1(3) LPA 1925
40
What are the formalities needed for a restrictive covenant?
s53(1)(a) LPA 1925
- Signed in writing
It may also and USUALLY come in a deed
41
How is a restrictive covenant enforceable in an unregistered system? [pre and post 1926]
POST 1926
- Register as Class D(ii) land charge to bind the buyer (s2 LCA 1972)
PRE 1926
- This will bind everyone except equity's darling
42
How is a restrictive covenant enforceable in a registered system?
IARE (s32 LRA 2002)
Needs to be registered as a notice at the Land Registry by date of registration of the buyer
43
What is an estate contract?
This will usually be an equitable lease
44
What is an example of an estate contract?
Possession of cottage but with no need and no parol lease
45
Is an estate contract capable of being legal?
No
| Equitable under s1(3) LPA 1925
46
What are the formalities needed for an estate contract?
s2 LP(MP)A
- Writing
- Signed
- Must include all the agreed terms
47
How is an estate contract enforceable in an unregistered system?
POST 1926
| - Register as a Class C(iv) land charge to bind the buyer (s2(4) LCA 1972)
48
How is an estate contract enforceable in a registered system?
IARE
Needs to be registered as a notice at the Land Registry by date of registration of the buyer
If the tenant is in occupation of the land, it can be an overriding interest according to Sch 3 Para 2
49
What is an equitable easement?
An easement with an uncertain period (eg conditional)
50
What is an example of an equitable easement?
Use of a drainage pipe for as long as neighbour lives there
51
Is an equitable easement capable of being legal?
No
| Equitable under s1(3) LPA 1925
52
What are the formalities for an equitable easement?
s53(1) LPA 1925
- Signed in writing
53
How is an equitable easement enforceable in an unregistered system?
pre and post 1926
POST 1926
- Register as a Class D(iii) land charge to bind buyer (s2 LCA 1972)
PRE 1926
This will bind everyone except equity's darling
54
How is an equitable easement enforceable in a registered system?
IARE (s32 LRA 2002)
Needs to be registered as a notice at the Land Registry by date of registration of the buyer
55
What is an equitable interest under trust?
Estate held by trustee and beneficiary holds equitable interest
56
What is the difference between an express and implied trust?
Express
- Named a beneficiary
Implied
- Where one party makes a financial contribution to the purchase of property but is not named the legal owner
57
Can an equitable interest under trust be a legal interest?
No
| As does not fall under s1(1) and s1(2)
58
What are the formalities for an express trust?
s53(1)b LPA 1925
- Evidenced in writing
- Signed
59
What are the formalities for an implied trust?
Will arise automatically therefore no formalities required under s53(2) LPA 1925
60
How is an equitable interest under trust enforceable in an unregistered system?
Buyer is bound unless he is
1. Equity's darling
2. Overreached
61
How is an equitable interest under trust enforceable in a registered system?
Interest of beneficiary under a trust of land
May be recorded as a restriction by the date of registration of the buyer
This will alert the buyer to overreach. If buyer fails to overreach, buyer will be prevented from registering the purchase
Can be an overriding interest under Sch 3 Para 2 as
- Interest in land
- Actual occupation
- Other conditions
62
What is a Home Right?
If couple have lived in a home and one is refusing to move out
63
Is it capable of being legal?
No as not s1 or s2. Also not capable of being equitable.
It is statutory
64
What are the formalities for a home right?
Must be
1. Legally married or in a civil partnership
2. Home is, or has been, the matrimonial home
3. Only one has legal interest in the property
65
How is a home right enforceable in an unregistered system?
Registered as Class F land charge to bind buyer (s2(7) LCA 1972)
66
How is a home right enforceable in a registered system?
IARE
Needs to be registered as a notice at Land Registry by date of registration of new buyer (s29(1) and (2) LRA 2002)
67
Can a home right be an overriding interest?
Cannot be protected by Sch 3 Para 2 LRA LRA (s 31(10)(b) FLA 1996) as the right is incapable of being an overriding interest
68
In an unregistered system when is the legal estate passed to the buyer?
On completion of the conveyance it is immediately passed to the buyer
69
What if an interest is not part of the Land Charges Act 1972?
Must look at pre-1926 rules
70
What do the pre-1926 rules apply to?
1. Equitable interests arising under trust
2. Most legal interests
3. Pre-1926 equitable interests
71
What are the rules for legal and equitable interests pre-1926?
Legal interests will BIND THE WHOLE WORLD
Equitable interests will BIND EVERYONE EXCEPT EQUITY'S DARLING
72
What is equity's darling?
You must be
1. Bona fide (acting in good faith without fraud)
2. Come within the definition of a purchaser (this includes mortgagee and leasee)
3. Bought property for value (consideration)
4. Taken the legal estate of the property
5. Without notice that the equitable interest exists
73
What is actual knowledge?
Have knowledge of all the facts
74
What is imputed knowledge?
His solicitor or agent had actual or constructive knowledge
75
What was added in Kingnorth Finance Co Ltd v Tizard?
The purchaser must have made all inquiries and inspections (under s44(1) LPA 1925) in order to be considered equity's darling
76
How could a purchaser try and remove third party rights generally?
- Could negotiate with the person who holds the benefit of interest
- However may have to consider elsewhere
77
What is overreaching?
Will take the land free of interests of beneficiary
To overreach must
1. Be acquiring legal estate in the property
2. Pay purchaser money to all the trustees, being at a minimum of 2 in number, or a trust corporation (s2 and 27 LPA 1925)
78
In a registered system when is the legal estate passed to the buyer?
Completion of the transfer does not occur until the buyer's name is put on the register as the new owner of land
79
In what cases would there NOT be a compulsory first registration post LRA 2002?
1. Gift
2. Easement
3/ A lease under 7 years
80
What changed in the 2002 act regarding compulsory first registration?
The minimum lease at which it did not have to be registered went from 21 years to 7 years
81
What are the 4 categories of rights that exist over registered titles?
1. Registrable dispositions
2. IARE
3. Overriding interests
4. Interests of beneficiaries under a trust
82
What is special about Sch 3 Para 2?
It can be an overriding interest IF
1. Interest in the land
2. Beneficiary is in actual occupation
3. Occupation was obvius on reasonably careful inspection or purchaser knew
4. If the inquiry is made to the person, he must disclose it (unless unreasonable to do so)
83
What is meant by actual occupation?
Requires there to be physical presence on the land by the claimants [Williams & Glyn's Bank v Boland]
84
What happened in Abbey National Building Society v Cann?
Moving furniture in to the house is NOT ACTUAL OCCUPATION
85
What happened in Lloyds Bank v Rosset?
Visiting the property regularly while it was being renovated to supervise contractors amounted to occupation as far as it was possible to occupy.
86
What happened in Chhokar v Chhokar?
TEMPORARY absence will not defeat actual occupation
87
What happened in Link Lending v Bustard?
If the occupier is absent but possessions still in property then actual occupation
88
What happened in Thompson v Foy?
If PERMANENT absence, then NOT ACTUAL OCCUPATION
89
What happened in Kling v Keston?
Car parked regularly in garage amounted to actual occupation
90
What happened in Stand Securities v Caswell?
Person who has the interest has to be the one in actual occupation
91
What happened in Malory v Cheshire Homes?
Fenced off field and put horses in the field = ACTUAL OCCUPATION
92
What is co-ownership?
This arises when two or more people have concurrent interests in the same estate in one piece of land.
93
Who owns the legal title when the land is first acquired?
The first four people named as trustees (s34(2) LPA 1925)
Cannot be under 18
94
What are the two types of co-ownership?
Joint tenancy
Tenancy in common
95
What is joint tenancy?
- Treated as a single person
- Do not own distinct shares
- The right of survivorship applies ---> this means that if anyone dies, the survivors become the owners of that land
- If sold proceeds are shared equally
96
What is tenants in common?
- The law treats them as owning distinct shares in the cottage, that may be equal or unequal in size
- If one dies, their share falls in to their estate
- On sale the proceeds are equivalent to size of their distinct shares
97
How can joint tenancy become tenancy in common?
By the process of severance
98
How is the legal estate always held?
In joint tenancy (s1(6) LPA 1825
It is not possible to sever a joint tenancy of the legal estate
99
How do you decide whether the equitable interest is joint tenancy or tenancy in common?
Four tests
- Four unities
- Express statement
- Words of severance
- Equity
100
What are the four unities?
If these are met, the equitable interest can be held as either joint tenants or tenants in common. If not met then tenants in common
1. Time - must have acquired interest in the property at the same time
2. Title - must acquire the interest under the same document
3. Interest - must be of the same nature and duration
4. Possession - co-owners must be equally entitled to use and occupy the whole premises - they must not be able to exclude each other
101
What is an express statement?
If there is an express statement, then this will prevail over anything else
1. An express declaration in conveyance is conclusive - [Goodman v Gallant]
2. Prevents any other presumption from arising
102
What are words of severance?
If there are words of severance, indicating that co-owners intend to separate shares then tenants in common
103
What are three things that will make equity presume tenants in common?
1. Partnership property - business partners
2. Lenders - where more than one person lends money to a borrower
3. Unequal contributions to the purchase price - where two or more people buy land together . The size of each contribution is proportionate
104
What happens if none of these apply?
If all four unities are present, there is no express declaration as to how the equitable interest is held, no words of severance and none of the presumptions apply, equity will follow the law and the equitable interest will be held as a joint tenancy.
105
What happens on death for joint tenants and tenants in common?
Legal estate
Pass by survivorship, cannot be severed (s36(2) LPA 1925)
Equitable interest
- Tenant in common on death: equitable interest will pass to beneficiaries
Joint tenant: right of survivorship
106
What happens with severance for joint tenants and tenants in common?
Legal estate
- Not possible to sever the legal estate (s36(2) LPA 1925)
Equitable interest
- This can be severed in a number of ways
107
What are the five ways in which severance can occur?
1. Written notice
2. Alienation
3. Mutual agreement
4. Course of dealings
5. Homicide
108
How can you sever through written notice?
1. Must be in writing
2. Need not be signed [Re Draper]
3. Must show intention to immediately sever (not at a later date [Harris v Goddard]
4. Must be addressed to all of the other joint tenants
5. Must be served correctly on all joint tenants within s196 LPA 1925
109
What is meant by serving correctly?
Notice must be delivered at the last known abode or place of business of the other joint tenants
110
What was established in Kinch v Bullard?
It does not matter who served the notice - it can be an agent
111
What about if the notice never arrived?
This is still deemed as acceptable [Re 88 Berkley Road]
112
What is alienation?
1. Selling or giving away (gift)
- This will take the share as a tenant in common
- To be effective, the gift, sale or mortgage must be signed in writing (LPA 1925, s53(1)(c))
2. Mortgaging equitable interest
- The equitable interest will be held as a tenancy in common by the bank
- Once mortgage repaid, will regain the interest, but will remain severed
3. Bankruptcy
- Equitable interest held as tenancy in common by Trustee in Bankruptcy
- When discharged from bankruptcy, the beneficiary will regain equitable interest but it will remain a tenancy in common
113
What is mutual agreement?
Where co-owners expressly agree to sever the joint tenancy
114
What is course of dealings?
Enough for both parties to act in such a way that it is clear they both intend shares should from now on be held as tenants in common and not joint tenants
115
What is homicide?
Where one joint tenant kills another, this will automatically sever the joint tenancy
116
What is TLATA 1996?
This helps to solve disputes between tenants
117
What is s14 TLATA?
s14: any trustee or person with an interest in the land (eg a beneficiary) can apply to the court asking the court to resolve the dispute and make an order
118
What is s15 TLATA?
This relates to s14 as a list of factors to consider
1. The original purpose of the trust
2. The intention of the settlor when creating the trust
3. The welfare of any minor who occupies the trust land
4. The circumstances and wishes of any beneficiaries
119
What is s6 TLATA?
Trustees have the powers to sell the property
120
What is s11 TLATA?
Imposes on trustees of land a duty to consult the beneficiaries who have interest in possession
121
What is s12 TLATA?
A beneficiary has the right to occupy the land if it is available for occupation
122
What is s13 TLATA?
Trustees have the right to exclude beneficiaries or impose conditions on who allowed to occupy
123
What happens if selling the land from 2 or more co-owners?
If two or more co-owners, buyers can overreach any beneficial interests
124
What happens if selling the land by sole legal owner?
Registered land
- If registered as a restriction, will need to appoint another trustee to overreach
Unregistered land
- Purchaser can assume that the joint tenancy was not severed in equity and therefore can overreach
125
What are the two types of implied co-ownership?
Resulting and constructive trusts
126
What is a resulting trust?
A resulting trust only gives a share of the proportion to initial direct contribution
127
What is the first type of constructive trust?
- When there is an agreement, arrangement or understanding between the legal and non-legal owner to share equitable interest
- The non-legal owner relies on that to his detriment
128
What is a distinction in Eves v Eves?
Legal owner stated that would have been put in joint names if had been 21 - therefore constructive
129
What is the distinction in Grant v Edwards?
Said not to put both names in so to not prejudice divorce proceedings therefore constructive
130
What is the second type of constructive trust?
If there is no agreement or understanding then the
1. Conduct allows the court to infer common intention
2. The non-legal owner must act to their detriment
131
What are the essential characteristics of a lease? [Case law]
1. Certainty of duration
2. Exclusive possession
3. Rent - this is NOT ESSENTIAL
132
What is certainty of duration?
Leases must have a fixed and certain maximum duration [Lace v Chandler]
- This could be periodic tenancy
- Lease which do not qualify are capable of being converted in to fixed tenancies
133
What is exclusive possession?
A tenant who has exclusive possession can exercise the rights of a landowner and can exclude all others and the landlord
134
What if there are sharing tenants, how can they prove exclusive possession?
They have to show joint exclusive possession of the whole flat - did they respond at the same time as the ad?
135
What happened in Antonioades v Villiers?
1. A couple entered into two separate but identical agreements to occupy basement flat
2. Couple shared one bedroom
3. The clause stated that the landlord could bring in a third party to share the accommodation - but accom was not large enough
4. Despite the fact the were termed licences, decided it was a lease
136
What happened in AG Securities v Villiers?
1. A bedroom each plus shared living room
2. Clauses stating that when an occupant left a new occupant would be agreed by the landlord
3. This was a licence
137
Why is rent included?
This is no longer essential [Ashburn-Anstalt v Arnold]
It is a good indication of intention to create legal relations
138
What happens if you have all three?
Then a tenancy definitely exists
139
What are the two types of leases?
Fixed term
| Periodic
140
How do you create a fixed term lease?
Must be created expressly. An express grant is needed to identify the length of the term - need to know from the outset the maximum duration of the agreement
141
How do you terminate a fixed term contract?
At the end of the period, the tenant loses his right to remain on the premises
142
What other occasions may occur where a fixed term lease is ended?
1. Forfeiture (the lease may include a provision to end it prematurely if the tenant fails to meet his obligation)
2. Break clause
143
What is a periodic lease?
This renews itself automatically at the end of each period of the tenancy and is certain to continue until either party decides to end it
144
How do you create a periodic lease?
This can be created expressly by saying 'pay monthly' or implied by completing this action
145
How do you terminate a periodic lease?
Must give proper notice
| The general rule is that one full period's notice is required to terminate the tenancy
146
What are exceptions to the general rule when terminating a periodic tenancy?
If dwelling
Must be
1. Given in writing
2. Contains prescribed information
3. Is given at least 4 weeks before it is due to take effect
4. s3 requires the landlord to obtain a court order to recover possession of premises that have been let as a dwelling
147
What must you look at first when looking at leasehold covenants?
Whether it has been created pre or post 1996.
148
What implied covenants are there for the landlord?
Quiet enjoyment
| Repair
149
What supports quiet enjoyment as an implied covenant?
Kenny v Preen [1963]
| s1(2) and 1(3) Protection from Eviction Act 1977
150
What is part of the implied covenant of repair for land?
Under s11 Landlord and Tenant Act 1985
to keep in repair structure and exterior
water, gas and electricity
space hearing and heating
151
When may a landlord not be liable for repairs?
If not notified on the need for repair [O'Brien v Robinson]
152
What are express covenants of a tenant?
Rent (up front)
User (residential purposes)
Not to assign/sub-let
153
What are implied covenants for a tenant?
Repair
| - Most expected of them is to treat the property in a tenant like manner
154
What is the liabilities of the original parties to the lease if under an old tenancy?
They will be able to enforce each other's covenants as in a normal contract due to privity of contract
155
What happens to liabilities of the original parties to the lease if under an old tenancy if the landlord or tenants assigns?
They will still be liable due to that privity of contract
156
What happens to the liability of the first successors under an old tenancy?
If the landlord and tenant have the benefit and burden then they will both be liable. This is called privity of estate
157
How can you show that the tenant/landlord is liable as a first successor?
Must show that the person who wants to sue has the benefit and the person who is being sued has the burden
158
How can you show that the new landlord acquires the benefits?
On assignment of the freehold reversion, the new owner acquires the benefits of covenants that have reference to the subject matter of the lease (s141 LPA 1925)
159
How can you show that the new tenant has the benefits?
The successor to the original tenant will have all the benefits of the landlord covenants that touch and concern the land [Spencer's Case]
160
How can you show that the new landlord has the burden of the covenants?
On acquiring the freehold, the owner will have the burden of all the covenants that have reference to the subject matter of the lease (s142 LPA 1925)
161
How can you show that the new tenant has the burden of the covenants?
The burden of all the covenants that touch and concern the land will pass to the new tenant [Spencer's Case]. They will be bound by privity of estate.
162
What happens to the liability of further successors?
The first successors will not be liable as they do not have privity of estate or privity of contract
163
What is the SWIFT test?
These are the covenants that touch and concern the land
1. Must benefit only the estate owner
2. The covenant affects the nature, quality, mode of use or value of the land of the reversioner
3. Not personal
4. If the covenantor is to pay money, it must be connected with something to be done or in relation with the land
164
What is the liability to the original parties to the lease in a new tenancy?
This is the same as old - there is a privity of contract
165
What is the liability of the original TENANT following the first assignment?
The original parties are released from tenant covenants
They will not be liable for the breach
They will also cease to have the benefit of the landlord covenants
166
What is the liability of the original LANDLORD following the first assignment?
As the tenant has no control over the assignment, there is no automatic release
The tenant must agree
Therefore the landlord remains liable
167
What is the liability of the first tenant?
Takes all the burden and the benefits
168
What is the liability of the first landlord?
Takes all the burden and benefits
169
What is the liability of further tenants?
When a tenant assigns the lease, they are released
| Therefore they are not liable
170
What is an AGA?
This is usually imposed by a landlord on a tenant meaning that the previous tenant will be liable for their successor?
171
How far back does an AGA go?
Only one previous. All tenants before that are exempt.
172
What is the liability of further landlords?
They are not automatically released
173
What occurs in an action for debt
A landlord can sue the tenant for debt
- However, must be done in 6 years
Can sue the previous tenant under AGA or privity of contract
174
What occurs under CRAR?
This can be used to recover rent payable in arrears subject to the amount of arrears
- This is only commercial
Must be
- Due and payable
- At least 7 days notice
175
What is forfeiture?
this allows a landlord to terminate a fixed term lease
176
When can forfeiture be used?
1. Must be a forfeiture clause
2. They must make a formal demand [Duppa v Mayo]
3. Do not need to serve notice s146 LPA 1925
4. If residential property then must obtain court order
5. The tenant can apply to court to stop or reverse the forfeiture
177
When can damages be used?
If breached covenant - such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract [Hadley v Baxendale]
178
What is specific performance?
Where party is forced to complete obligation
179
What is injunction?
To prevent a party doing a negative covenant
180
What is self-help?
This may give the landlord the right to enter the premises to do the work and charge the tenant
Or the tenant to pay for the work and withhold rent
181
What about indemnity clauses?
For old and new leases can use Moule v Garrett to claim money back from successor
For only old lease the statutory indemnity will be implied under s77 LPA 1925
182
What the the liability of the original covenantee in a freehold covenant?
They are liable as privity of contract
However, they cannot sue successors in title if the covenantee has parted with all of the land for which the benefit of the covenant was taken
183
What the the liability of the original covenantor in a freehold covenant?
They can require the successor to enter in to a covenant with him to indemnify him of any future breach.
This builds up a chain of indemnity covenants
184
What is a positive covenant?
This will require someone to spend money
185
What is a restrictive covenant?
This does not require someone to spend money
186
What are the two rules that apply to whether covenants run with successors in title?
Common law
| Equity
187
Can the benefit of a positive covenant run with common law?
YES
1. Express assignment
2. Automatically
188
How does express assignment for the benefit of a positive covenant running in common law work?
This is an assignment of a thing in action
Legal assignment under s126 LPA 1925
May occur if
1. In writing
2. Signed by assignor
3. Given to person with burden of covenant
189
What are the certain conditions needed to be met for the benefit of a positive covenant in common law to assign automatically?
1. Covenant touches and concerns the land
2. Original covenantee and success have/had legal estate in the land
3. Original parties intended the benefit to run
190
Can the burden of a positive covenant run with common law?
NO
The burden of a freehold covenant cannot run with common law [Auterberry v Oldham]
Therefore the original party will be liable
191
How can the original party reclaim their money?
Chain of indemnity
The principle of mutual benefit and burden (Halsall v Brizell) - if the successor in title takes the benefits then they mjst also take the related burden)
192
Can the benefit of a restrictive covenant run with common law?
YES
1. If expressly assigned
2. Automatically if certain conditions are met
193
Can the burden of a restrictive covenant run with the common law?
NO
| Same rules apply [Austerberry]
194
Can the benefit of a positive covenant run with equity?
YES
Benefit may run where covenant touches and concerns the land and the benefit has passed to the successor by
1. Express assignment
2. Express annexation
3. Statutory annexation
195
Can the burden of a positive covenant run with equity?
No, equity will not assist in relation to positive covenants
196
Can the benefit of a restrictive covenant run with equity?
YES
1. Express assignment
2. Express annexation
3. Statutory annexation
197
Can the burden of a restrictive covenant run with equity?
YES
Tulk v Moxhay
1. Must be restrictive
2. Must touch and concern
3. Intention that birden would run (express or implied intention)
4. The person must have had notice of the covenant (registered)
198
What happens if it is established that the benefit and burden both pass in a particular way?
Covenant will be binding on the successors in title and thy can seek remedies for breach of covenant
199
What is needed to discharge a covenant through express release?
Express release
- They can agree together
- This will usually involve payment
200
What is needed to discharge a covenant through common ownership?
- Both owned by same person
| - Covenant extinguished
201
What is needed under s.84 LPA 1925?
1. Application to Land Chamber of the Upper Tribunal
2. Limited grounds (specified in s84)
3. Would need to show that it is obsolete due to changes in the character of the property or the neighbourhood
This is a lengthy and expensive process
202
What is breach insurance?
This covers the covenantor for any breaches that they do make
203
What is a positive easment?
This allows the owner of land to use the land of another in a particular way
204
What is a negative easement?
Restricts the use of another person's land in some way
205
What are the characteristics of a valid easement?
1. Dominant and servient tenement
2. An easement must 'accommodate' the dominant tenement
3. Dominant and servient tenements must not be owned and occupied by the same person
4. Must be capable of forming the subject matter of a lease
206
What is meant by capable of forming the subject matter of a lease?
Has there been an easement granted like this before
207
What happened in Hunter v Canary Wharf?
The courts will not allow an unlimited number of rights to exist as easements (television reception is too wide)
208
What happened in Phipps v Pears?
Negative easements list is closed
209
What happened in Colls v Home and Colonial Stores ?
Right to light must be through a specific aperture eg a window
210
What happened in Bachelor v Marlow?
Exclusive right to park six cars for nine hours a day was so extensive that it left no reasonable enjoyment of land for the appellants
211
What is an express grant of an easement?
Where the owners of two neighbouring pieces of land agree to create an easement
212
What is an express reservation of an easemenet?
A person sells part of the land he owns and wishes to retain rights
213
Can an express easement be created orally?
NO
214
How can an implied grant or reservation create an easement?
1. Must be for a SALE OF PART
2. No formalities are required
3. Deemed legal easements are implied into deed to transfer legal estate on sale of part
215
What is strict necessity?
This arises where without the easement tehre is no use of the land
216
Is water supply strict necessity?
NO
217
What is the rule in Wheeldon v Burrows?
Must be
1. Continuous degree of performance
2. Apparent on inspection
3. Necessary for the reasonable enjoyment of land
4. Being used as a quasi-easement
218
What is meant by quasi-easement?
A right used over one part over land would be in easement if they were in separate ownership
219
What is meant by continuous and apparent?
Feature that would be present on the servient tenement and apparent on inspection
The feature must be one that has a degree of permanence
220
What is needed under s62?
1. Conveyance
2. Prior to the conveyance, must have enjoyed a licence capable being an easement
3. Diversity of occupation
221
When is diversity of occupation relevant?
When converting a licence to an easement, not essential for continuous or apparent easements
222
What are the three ways that the buyer can claim presciption?
1. Common law prescription
2. Doctrine of lost modern grant
3. Prescription Act 1832
223
What is common law prescription?
- Rebuttable presumption that such right has been granted and exercised since time immemorial (1189)
- So easily rebuttable
224
What is the doctrine of lost modern grant?
where 20 years, assume that the easmeent has been lost
225
What is s2 of the prescription act?
This is for non-light
| If easement has been enjoyed for 20 years
226
What is s4 of the prescription act?
No right to an easement arises untila court action is brough and the use must be continuous up to that adte of court action
If the right has been interrupted, can take to court within a year
227
what is s3 of the prescripotin act?
Right to light
228
How can you extinguish an easement?
Can be released by deed
If own both then easement will cease
Owner of dominant tenement can abandon [Moore v Rawson]
229
Is a mortgage capable of being legal?
YES
| 1(2) LPA
230
What if there is no deed?
Under s85 there are two ways of creating a legal mortgage?
1. Take the form of a demise (lease) for a term of years absolute subject to a provision of the lease to end on redemption of mortgage
2. Use a charge by deed expressed to be by the way of legal mortgage
231
How does debt action work for a mortgage?
Can recover debt if borrower failed to make the payments he has agreed
If legal date of redemption has passed (1 month after) then can recover arrears
However rare as usually if unable to pay rent unable to pay debt action
232
When does the right to take possession arise?
As soon as the mortgage is created [Four Maids]
233
What are the two forms that possession may take?
1. If mortgaged land is not subject to lease ---> lenders can take physical possession of the property
2. If mortgaged land is subject to a lease ----> tenants pay them rent
234
Why might possession be used with other remedies?
Eg if power to sale may want to obtain possession, therefore can sell it vacant
235
What comes under s6 Criminal Law Act 1977?
If lenders are taking possession of mortagged land the if they threaten with violence it is a criminal offence
236
What about if the mortgaged house is a dwelling?
s36 Administration of Justice Act
- Need to obtain a court order
s8 Administration of Justice Act
- Sums due only means the arrears whcih are at the date of possessojn of proceedings
237
Why may someone appoint a receiver?
To avoid the risk of being challenged for lack of due diligence
238
What does a receiver do?
Takes control of the mortgaged land and either sells it or manages it and uses the income to repay the loan
239
When does the mortgagee have the power to appoint the receiver?
1. The mortgage was created by deed. This power is implied in to every deed
2. The power has arisen (legal date of redemption has passed and become exercsiable)
240
When does the power to appoint a receiver become exercisable?
1. Lenders have served notice on borrowers requiring repayment of loan and the borrowers have failed to comply with notice for 3 months after servoce
2. INterest due is 2 or more months in arrears
3. Borrowers have breached a term under the mortagge deed
241
What is the general rule on how a receiver should be appointed?
In writing (s109 LPA)
242
What is the order to apply the income under s109 LPA 1925?
1. Outgoings on the property
2. Insurance on any prior mortgages
3. Insurance premiums on the property at his own costs
4. Interests on the current mortgages
5. Capital on the current mortgage if directed to do so in writing my the mortgagee
6. The balance to the mortgagor
243
What is the power of sale?
The mortgagee will sell the property and use the proceeds to pay themselves back the sum they are owed under the mortgage
244
To exercise power of sale it must?
1. Have arisen (lefgal date of redemption)
| 2. Become exercsibale
245
What are the two duties that lenders owe to borrowers?
Cuckmere Brick v Mutual Finance
1. Lenders must act in good faith and not cheat the borrowers
2. Lenders must take reasonable care to obtain the true market value of the property at the date of the sale
246
What is the effect of the sale?
The sale by the mortaggee passes to the purchases
1. Free from any estates or interests whcih the selling mortaggee took priority over
2. Subject to any estates and interests which took priority over the seeling mortaggee
247
How must the sale proceeds be distriubuted?
1. To repay the cost of redeeming prior mortgages
to ray of the moryaggees expense of sae
to pay of teh mortagees own mortg
to pay off any balance to the person entitled to teh mortagegd property
248
What is foreclosure?
Very rarely used
Right to sell the property and keep excess
However eqiuty of courts usually intervenes
249
What is the priority of mortgages on unregistered land?
Whatever appears first, ranks first
250
What is the priority with other proprietary interests?
Mortagage is a registrable dispositn
If propietary interest was befroe then could be
If after then not
