Land Flashcards
1
Q
What’s the difference between ‘estates’ and ‘interests in land’?
A
Estates: ownership
Interests in Land: rights over someone else’s land
2
Q
What’s the difference between real and personal property?
A
Real: land
Personal: every other type of property
3
Q
What’s the difference between a proprietary and personal right?
A
Proprietary: enforceable against 3rd parties and can be enforced by an action in rem (use/possession can be recovered) - don’t have to settle for damages
Personal: only binds original parties & damages is only remedy
4
Q
What proprietary rights are there?
A
Freehold, Leasehold, Easement, Mortgage, Restrictive Covenant, Estate Contract, Beneficial Interest in a trust of land
5
Q
What is an owner’s right to airspace?
A
The height is restricted to such as is necessary for ordinary use and enjoyment of the land (lower airspace)
6
Q
What are the rules on lower airspace?
A
If a structure overhangs a property in lower airspace, it trespasses irrespective of causing damage
7
Q
What tests are applied to determine if something is a fixture or chattel?
A
- Degree of Annexation: more firmly it’s fixed, more likely to be a fixture
- Purpose of Annexation: more convenient use/enjoyment of object or to enhance land/building?
Purpose takes priority
8
Q
What’s the law on fixtures regarding a transfer of land?
A
A transfer of land automatically includes all fixtures, except those specifically excluded
9
Q
What is an easement?
A
A proprietary right to use land which belongs to someone else
Can be a legal (certain term) or equitable (uncertain term) interest
10
Q
What is an estate contract?
A
A contractual right to a legal estate, whether freehold or leasehold
An equitable interest arises from the contract
11
Q
What happens if the current owner of a freehold estate dies without next of kin and without a will?
A
Land is regarded as bona vacantia and estate reverts to the Crown
12
Q
What is freehold reversion?
A
The residue of the estate where a leasehold is granted
13
Q
What is a commonhold?
A
A type of freehold: an alternative to a long lease, with no overall landlord
Freehold older which is a commonhold association
14
Q
What are the remedies available for breach of a land/estate contract?
A
Damages
Equitable Remedies: specific performance & injunction (at discretion of court & equitable principles apply)
15
Q
When will an equitable interest be recognised where a land contract/valid deed is not created?
A
- Document complies with formalities required for valid land contract
- Specific performance is available (claimant has ‘clean hands’)
16
Q
For a valid land contract to be binding on third parties, what must happen?
A
An estate contract must be protected against third parties
17
Q
What are triggering events?
A
Events that trigger registration for both unregistered & registered land
Unregistered: triggers registration for 1st time
Registered: must update register
18
Q
What triggering events are there?
A
Transfer of freehold by sale, gift or court order
Grant of lease of 7 or more years
Assignment of lease with 7+ years to run
First legal mortgage with 7+ years to run
An assent
Grant of lease to take place in 3+ months from date of grant
19
Q
What are registrable dispositions?
A
Along with their respective requirements, these estates/interests of land must be registered otherwise they won’t be legally recognised
20
Q
What registrable dispositions are there?
A
Transfer of a registered freehold/leasehold
Grant of a lease of 7+ years
Grant of a legal charge
Express grant/reservation of an easement
21
Q
What is compulsory land registration?
A
When unregistered land is sold for the first time after 1st December 1990, the unregistered title must be registered
22
Q
What is the basic rule of priority for interests of land?
A
Interests of whatever kind take priority over later dispositions
23
Q
What is the exception to the basic rule of priority?
A
Where a transaction is for valuable consideration (i.e. not gifted or inherited), new owner is only bound by properly registered registrable dispositions, interests properly protected by notice and/or overriding interests
Basic rule only applies to transactions not for valuable consideration
24
Q
What are 2 methods of protecting equitable interests and their definitions?
A
- Notices: entering a notice on Charges Register of burdened land - binds subsequent purchasers
- Restrictions: short-term entries that direct purchaser to do something specific to properly register purchase; don’t last beyond ownership
25
What interests are protected by notice?
Restrictive covenants affecting freehold land
Estate contracts
Equitable easements
Legal lease > 3 years but < 7 years (optional)
26
What interest is protected by a restriction?
Beneficial interests under a trust
27
What is the concept of overreaching?
For beneficial interests in land, of registered or unregistered land, a purchaser must pay money to at least 2 trustees to detach the beneficial interest
28
What happens if a purchaser does not overreach a beneficial interest?
The interest will bind the purchaser as an overriding interest (as long as the beneficiary is in actual occupation of the land)
29
What are the requirements for an overriding interest?
1. Interest in land
2. Actual occupation (not defeated by temporary absences)
30
What are the exceptions to requirement of actual occupation for overriding interests?
(a) An interest of a person that was failed to be disclosed when reasonable to expect it
(b) A person in occupation not obvious on reasonably careful inspection & the purchaser didn't have actual knowledge of at the time
31
What are 3 common overriding interests?
Legal leases, 7 years or less
Equitable interests by people in actual occupation
Implied legal easements or profits a pendre
32
What is the consequence of failing to register unregistered title within 2 months following compulsory land registration?
Legal title will revert back to the seller
33
How are legal and equitable interests enforced against third parties for unregistered land?
Legal: pre and post 1926 interests bind the world
Equitable: pre-1926 = doctrine of notice; post-1926 = land charges (except equitable easements + restrictive covenants pre-1926; and interests behind a trust in land that haven't been overreached)
34
How is a land charge entered?
Against the name of the landowner at the time the right is granted/created
35
What happens if there is a failure to protect an interest against the correct name and a clear search made against the full name(s) as spelt in the title deeds?
Interest is unenforceable and therefore, not binding on new owner of burdened land
36
What is 'Equitys Darling'?
a bona fide (good faith) purchaser for value of a legal estate (freehold or leasehold) without notice (active, constructive or imputed notice)
37
What is imputed notice?
Notice is received by buyer's agent e.g. solicitor
38
What is constructive notice?
If a purchaser fails to pursue a line of enquiry which he ought reasonably to have been made
39
When land is jointly owned, what is automatically imposed?
A trust of land
40
What are the different types of trusts in land?
1. Express: manifested & proved by some writing signed by some person able to declare such trust or by will
2. Implied: either resulting (where property is bought in A's name but B made financial contribution) or constructive (where unconscionable to deny interest)
41
When is an express trust of land necessary?
A trust is deliberately created, during lifetime or by will
Land is gifted to a minor
Land is bought by more than 1 person in joint names
42
What is a joint tenancy?
All co-owners are deemed to constitute one single entitle
All 4 unities are necessary
43
What is a tenancy in common?
Tenants have 'distinct but undivided share'
Requires only unity of possession
44
What are the 4 unities of co-ownership?
Unity of Possession: no co-owner can be excluded from any part of the land
Unity of Interest: interest each has must be of same nature & duration
Unity of Title: all must acquire title from same document
Unity of Time: interests must vest at the same time
45
What happens to the legal title where land is transferred to more than 4 people?
The first four names who are sui juris (sound age and mind) will be legal title holders
46
When is there a rebuttable presumption for a tenancy in common?
Land is a business asset AND the purchase price was paid for in unequal shares
47
What is survivorship?
Applies in a joint tenancy, where one co-owner dies
Notional interest of deceased accrues to surviving joint tenants
Operates automatically
48
Out of legal and equitable title, which can be severed?
Equitable title
49
When must severance take place?
During joint tenant's lifetime i.e. making a will does not sever
50
What is the effect of severance?
The joint tenant who severed will hold interest as tenant in common as a distinct share, based on no. of former joint tenants
Only that tenant is a TIC (unless there's only 2 equitable tenants)
51
How can co-ownership disagreements be solved?
Through application to the court (s14 TLTA 1996)
52
What are possible court orders for resolving a co-ownership dispute?
Sale (can be postponed)
Orders as to who occupies
Orders as to nature/extent of a beneficiary's interest
CANNOT order someone to buy out another
53
What factors must a court consider for a co-ownership dispute?
Intention of person(s) who created the trust
Purpose for which property is held (if still continuing, giving greater weight)
Welfare of any minor who occupies/expected to occupy (weight varies depending on age/independence)
Interests of secured creditors
54
What is the difference between a legal and equitable easement?
Legal: granted for equivalent of freehold or leasehold estate
Equitable: not granted for a fixed time period
55
What is a positive and negative easement?
Positive: use servient land in a particular way
Negative: prevents servient owner from doing something on their land by giving dominant owner right to receive something
56
What are quasi-easements?
Potential easements - they would become easements if the land was divided e.g. a path
57
What is the overview process of determining if a right is an easement?
1. Tests in Re Ellenborough Park
2. Consider disqualifying factors
3. Acquisition
58
What are the tests in RE Ellenborough Park for determining if a right is an easement?
1. Dominant & servient land (2 identifiable pieces of land, one with benefit and one with burden)
2. Right must Accommodate Dominant Tenement (some direct beneficial impact) (more detail)
3. Diversity of ownership
4. Right must Lie in Grant: capable grantor & grantee; right is capable of reasonably exact description; & judicially recognised
59
What rights have been judicially recognised as easements?
Right of way
Right of drainage
Right of support
Right to use of sport and leisure facilities
Right to use land for recreational activities
60
For the right to 'accommodate the dominant tenement', what must be considered?
Determining whether there is direct beneficial impact on dominant tenement:
It only benefits them while they own the land
Affects nature, quality and use of land
Right is not expressly personal
Dominant and servient land are sufficiently proximate (can have a field in middle)
61
What disqualifying factors are there for easements?
1. Exclusive Possession: can't deprive servient owner of use of land - consider ouster principle & whether they have ultimate possession and control
2. Additional, Unavoidable Expenditure: servient owner can't be required to spend extra money for the right; servient must allow dominant tenement to carry out repairs at own expense
3. Dependent on Permission: initial permission allowed but right can't be exercised with permission everytime
62
How is a legal easement expressly created?
1. Created by deed
2. Complies with deed formalities
3. Certain term (freehold or leasehold)
4. Where servient land is registered, easement must be registered
63
What is necessary for an express equitable easement?
1. Uncertain term
2. In writing
3. Signed by grantor
No registration needed (can be protected by notice)
64
What are the 4 methods of implied acquisition of easements?
1. Necessity
2. Common Intention
3. Rule in Wheeldon v Burrows (grants only)
4. S62 LPA 1925 (grants only)
65
What is 'necessity' for implied acquisition of easements?
Its existence is essential for use of dominant land
Only used for rights of way to otherwise landlocked land
Where land is inaccessible by vehicle i.e. only by foot, it can be deemed necessary
66
What is 'common intention' for implied acquisition of easements?
Where land sold/leased for a particular purpose and purpose can't be achieved without the easement OR when it's necessary for enjoying another expressly granted easement
Wong v Beaumont:
1. Specific Purpose
2. Purpose known to all parties
3. Easement essential to achieve specific purpose
67
What is the Rule in Wheeldon v Burrows and its requirements?
Where an owner sells/leases land, the new owner/tenant impliedly acquires all rights the original owner exercised i.e. quasi easements
1. Only for grants
2. Quasi easement
3. Quasi easement must have been continuous and apparent (degree of permanence & some evidence as to its existence)
4. Necessary for reasonable enjoyment of land
5. In use by common owner at date of transfer/lease
68
What is the effect of S62 LPA 1925? What are its requirements
Buyer/tenant receives benefit of all existing easements & informal rights can be 'upgraded' into full legal easements
1. Only for grants, not reservations
2. Prior diversity of ownership
3. Informal permission/licence granted
4. Conveyance of dominant tenement i.e. transfer deed or lease
Can also be used with quasi easements that are continuous and apparent
69
What is an implied legal easement?
Where an easement is implied into a transfer deed or a legal lease as the easement takes its status from the status of the document it is implied into
70
What is an implied equitable easement?
Where the easement were implied into a contract or an equitable lease
71
What are the requirements for enforcing an express legal easement?
1. Duration: certain term or forever
2. Created by deed
3. Registered land: must be registered; Unregistered land: bind the world & overriding interest upon 1st registration
72
What are the requirements for enforcing an implied legal easement?
1. Duration: from document implied into
2. Implied by one of recognised methods
3. Registered: overriding interest if conditions met (interest & actual occupation); Unregistered: bind the world & overriding interest on 1st registration
73
What are the requirements for an express equitable easement on registered land to be enforced?
Must be protected by notice on Charges Register to bind future servient owners
Always bounds a donee
74
What are the requirements for an express equitable easement on unregistered land to be enforced?
Protected by D(iii) Land Charge at Land Charges Register
Donee always bound
75
What remedies are there for enforcing an easement?
Prohibitory injunction
Mandatory injunction (to remove obstruction)
Damages in lieu of injunction or in addition
76
What is a mixed covenant? How can it be dealt with?
One that contains both positive and restrictive elements
Can be separated into different covenants; or seen as one obligation with a condition attached
77
What process should one follow when determining whether benefit/burden of a freehold covenant has passed to a successor covenantor/covenantee?
1. Start in Equity
2. Has burden passed in equity? If it's a restrictive covenant, stay with equity. If it's a positive covenant, go to common law
3. Apply relevant rules
78
What are equity rules for burden of a covenant passing?
1. Must be restrictive covenant
2. Must accommodate the dominant tenement: covenantee & successor must hold interest in land at time of creation & enforcement; touch and concern the land (land receives benefit, not owner); servient & dominant land must be proximate
3. Intention for burden to run
4. Notice of covenant: registered = notice on Charges Register; unregistered = D(ii) Land Charge
79
What are the equity rules for benefit of a covenant passing?
1. Covenant must 'touch and concern' the dominant land
2. Benefit must pass by either: (a) Annexation (express or statutory); (b) Assignment; (c) Building Scheme
80
What are the equitable remedies for breach of covenant?
Most common = injunction (prohibitory or mandatory)
Damages but not as of right
Equitable principles apply e.g. delay
81
How can burden pass at common law?
General Rule: doesn't pass so original covenantor remains liable for successor covenantor's breaches
Remedy: indemnity covenant
Exception to General Rule: mutual benefit and burden rule = (a) clear link between benefit & burden (b) genuine choice to take benefit or not (c) benefit & burden conferred in same transaction
82
What are 2 ways benefit can pass at common law?
1. Express Assignment: in writing; express notice of assignment given to covenantor
2. Implied Assignment: (a) covenant touches & concerns land; (b) intention for benefit to run with dominant land (express or implied s78); (c) original covenantee has legal estate in dominant land when covenant made; (d) successor has legal estate at time of enforcement
83
What are 4 methods of discharging/modifying covenants?
Express Release/Modification
Implied Release/Modification
Merger
S84 LPA 1925 (only for restrictive covenants)
84
If a landlord forfeits a headlease, what happens to the sublease?
It is automatically terminated too
85
What are the requirements for a legal mortgage?
Valid deed
Registered as a charge
86
What 2 rights are automatically granted by mortgage to a lender?
1. Right to Possess Property (to ensure it's vacant for sale)
2. Power to Sell Property
87
In what 2 ways can an equitable mortgage arise?
1. Mortgage of an Equitable Interest: borrower holds equitable interest in land - they are not the legal owner
2. Defective Legal Mortgage: not a valid deed OR not completed by registration; but (for either) complies with estate contract requirements
88
What must be done when a mortgage is repaid in full?
Mortgage entries at Land Registry must be cancelled
89
What is 'Equity of Redemption'?
Borrower has an equitable right to redeem
Equity will look unfavourably & be prepared to declare void any term trying to postpone/prevent redemption
90
How is the financial value of equity of redemption calculated?
Market value LESS outstanding debt
91
What 3 principles apply to equity of redemption?
1. It supplements legal right to redemption
2. No postpone/prevention of redemption: won't allow a clause that prevents redemption altogether; an option to purchase may be declared void if granted at same time as mortgage
3. No collateral advantages: solus tie is upheld if ends within mortgage term; other collateral terms struck out if unconscionable
92
What is undue influence and its effect on a mortgage?
The borrower has the right to be protected from undue influence
Where undue influence is found, mortgage is unenforceable (bank can't repossess/sell)
93
When should a procedure for undue influence be taken with regard to mortgages?
In every non-commercial case, where a private individual offers his property as security for someone else's debts
94
What procedure should a bank take to not be liable for undue influence?
1. Write to party granting mortgage NOT for their benefit, saying that they need confirmation from an independent solicitor that transactions been explained to them
2. Ask party to nominate solicitor
3. Provide all info to solicitor
4. Don't proceed to lend until confirmation received
95
What procedure should a solicitor take to ensure undue influence isn't present?
1. Meet relevant party face-to-face and on their own
2. Explain reason for meeting & documents/transaction in non-technical language
3. Point out risks & show there's a choice
4. Keep detailed attendance note
5. Send letter to said party confirming what was discussed
6. Send certificate to the bank
96
What is the order of priority for legal mortgages?
Order in which they were registered
97
What is the order of priority for equitable mortgages?
Order of creation
98
What happens to the order of priority where an equitable mortgage is protected by notice?
That mortgage will take priority over a subsequent legal mortgage
Will not affect priority between competing equitable mortgages though - always on date of creation
99
How can priority rules of mortgages be modified?
By postponement of pre-existing interest
Lenders agree to alter position/order with agreement registered
100
What remedies are there for a lender?
1. Debt Action
2. Appoint a Receiver
3. Foreclosure
4. Possession
5. Right to Sell
101
What remedies are not available for equitable mortgages WITHOUT a court order?
Right to Sell
Possession
102
What limitations are there on lenders on the right to possess?
1. Criminal offence to use/threaten violence to gain entry (makes possession by self-help risky)
2. Certain steps should be taken by lender before resorting to possession of residential property
3. Common Law Jurisdiction to Postpone (see notes)
4. Statutory Jurisdiction to Postpone
103
When does the lender's right to sell exist?
(a) There's an express power of sale (in mortgage documents)
(b) Implied power under statute unless excluded/modified
104
When does the lender's right to sell arise?
As soon as one payment becomes due
105
When is a lender's right to sell exercisable?
When one of the following applies:
(a) Notice requiring payment served & borrower defaults
(b) Interest unpaid for at least 2 months
(c) Some breach of another mortgage provision
106
What duties does a lender owe when exercising a right to sell?
(a) Lender owes borrower duty to take reasonable care to obtain 'proper price' for property
(b) Perfection as to price isn't necessary
(c) Must get expert advice on method of sale, marketing strategy and reserve price
(d) Lender has unfettered discretion as to when to sell
107
What are the requirements of a lease?
1. Certainty of term (either fixed or periodic)
2. Exclusive Possession
3. Correct formalities
108
What factors could defeat a lease?
No ICLR (e.g. family arrangement; act of friendship/generosity)
Service occupancy
109
What is a licence?
A personal permission to be on someone's property
Doesn't bind new owners or third parties
Only remedy from grantor is damages
110
What scenarios indicate no exclusive possession?
(a) Landlord provides services e.g. cleaning
(b) Landlord retains a key: purpose for which key is retained is important - is right of access restricted or unrestricted?
(c) Sharing clause: landlord reserves right to share property or introduce others - must check if sham or not
111
What factors help determine whether a sharing clause is a sham or not?
(a) Size & Nature of Accommodation: is it realistic to introduce others?
(b) Relationship between Occupiers: Is it appropriate to introduce someone else?
(c) Wording of clause: the wider the clause, the likelier it's a sham
(d) Has the clause ever been exercised?
112
Where there's a joint tenancy of a lease, what is joint liability?
If one occupier leaves, the remaining ones are liable for whole rent
113
What is the s17 Tenant Default Notice provision?
Where landlord wants to pursue a former tenant who remains liable for a fixed charge, a landlord must serve notice within 6 months of such charge becoming due otherwise no claim can be taken
114
What is the s18 Liability for Variations provision?
Former tenants are NOT liable for additional amounts owed which they could not have anticipated when lease was entered into
115
What is the s19 Overriding Leases provision?
Former tenant can ask landlord for an overriding lease, becoming immediate landlord of defaulting party
The overriding lease is equal to remaining lease and 3 extra days
