Land

Question 1

Estates in land

Answer 1

Estate in land: a right to enjoy possess, control or dispose of land, and receive any income from the land

Freehold: Fee simple absolute in possession = indefinite ownership to the land

Leasehold: Terms of years absolute = a leasehold for the estate for a fixed period of years. Can grant others a sublease

Question 2

Terms of years absolute

Answer 2

Leasehold

Question 3

Fee simple absolute in possession

Answer 3

Freehold

Question 4

Mortgage

Answer 4

Mortgage: interest in land granted from borrower to lender as a security for a loan

Question 5

Easement

Answer 5

Easements: a landowners right to use another parcel of land for the benefit of their own land, e.g. a right of way

Question 6

restrictive covenant

Answer 6

Restrictive covenants: a promise by one landlord to another that they will not do certain things on the land e.g. not use the land for other purposes than as a private home

Question 7

Profit a prendre

Answer 7

Profits/profit a prendre: a right to go on someone else’s land and remove something that grows naturally on the land e.g. a right to fish or graze animals

Question 8

Constructive trust

Answer 8

Constructive trust: an interest in land that is created when a person contributes to the property in other ways than a direct investment at the time of the purchase e.g. through mortgage payments or substantial investments in the property.

Question 9

Resulting trust

Answer 9

Resulting trust: a person who is not the legal owner contributes directly to the purchase of a property and acquires an interest to the property proportionate to their contribution.

Question 10

Estate contract

Answer 10

Estate contract: contract signed between buyer and seller at the first stage of the sale and purchase of land. After the contract is entered into an exchange, the buyer holds the equitable rights to the land. At the second stage, the seller transfers the property to the buyer and the sale is completed when the legal estate is transferred.

Question 11

Options

Answer 11

Option: the person that holds an option to land can insist that the land is sold to them during the period of the option. Options are fixed periods and cannot be more than 21 years. The person that holds the option usually has to pay an option fee, but the purchase price is only payable if the option is exercised.

Question 12

Home rights - how are they protected in registered and unregistered land?

Answer 12

A statutory right for a spouse or civil partner that does not own the matrimonial home to be able to occupy it under the Family Law act 1996. The home right does not create an interest in land.

Home rights are not an interest and exist independently of any equitable interests under a trust.

Unregistered land: home rights are protected by registration of a class F Land Charge.

Registered land: must be protected by notice in the charges register. An unprotected home right is not an overriding interest

Question 13

Alienation

Answer 13

Alienation: a sale or underletting of leasehold land

Question 14

What does “land” include

Answer 14

Tenure (eiendomsforhold)
Mines and minerals
Corporeal hereditaments: intangible and physical characteristics of land which are capable of being inherited e.g. rocks, trees
Incorporeal hereditaments: intangible property rights which are capable of being inherited e.g. easements, profits
Concepts of manor and advowson: limited modern application
Buildings and parts of buildings (fixtures). Must be part of the land at sale, whilst chattels can be kept by the sellers and do not follow the land. Holland v Holland: rocks stacked on top of each other without mortar as a drywall is a fixture, whilst the same rocks stacked the same way for convenience in a builders yard would be a chattel.

Question 15

mortgagee vs mortgagor

Answer 15

Mortgagee: lender (lessee is the tenant, not landlord)
Mortgagor: borrower

Question 16

Test: fixture or chattel?

Answer 16

Fixture or chattel? Two stage test:

1. Degree of annexation: how fixed is the object to the land. A fixture usually cannot be removed without significant damage to the land e.g. fireplace. Carpets are curtains that are easy to remove and chattels.
2. Purpose of annexation: key test and takes priority over the degree of annexation. If the object was attached to enhance the enjoyment of the land or improve the land it is a fixture. If it was attached to enjoy the object, it is a chattel.

Examples: ornamental object are usually chattels, free-standing cooker is chattel, kitchen units are fixtures, bathroom fittings are fittings, gas fire connected purely to function as a fire is likely to be a chattel, light fittings are chattels, caravan and garden gnome are chattel, washing machine is chattel, but a dilapidated greenhouse that can’t be moved without falling apart would be a fitting.

Question 17

Interests in land capable of being legal

Answer 17

All property rights are either legal or equitable. All property rights can be equitable, but only certain property rights can be legal. Legal and equitable rights to property are protected in different ways and a legal right must 1. Appeal in ss. 1(1-2) in the LPA 1925 and meet the necessary formalities.

Legal interests: PERMSR

Profits: a right to go one someone else’s land and take something that naturally exists there e.g. right to fish.

Easements: a right one landowner has to use a nearby piece of land for his own benefit.

Rentcharge: right to receive a periodic payment charge for the land.

Legal mortgage: security for loan

Interests that arise from statute e.g. where the owner of the right is a government agency. May be related to legal aid or inheritance tax.

Rights of entry: a landlord’s right to forfeit the lease if the tenant breaks the terms of the lease or a rentcharge owner’s right to reclaim the land if the rentcharge is not paid.

Anything else will be an equitable right.

Question 18

Commonhold

Answer 18

Commonhold: new form of freehold in Leasehold Reform Act 2002 where the buyer buys freehold to e.g. a flat and the common areas are run by a commonhold association run by the common holders.

Question 19

Example statutory right in land

Answer 19

Statutory rights: Family Law Act 1996 s. 30 states that a spouse that is a non-legal owner has a right to reside in the matrimonial home as long as they are legally married (not divorced) and the home is, has been or is intended to be their matrimonial home. Home rights are not an interest in land and are independent of any rights resulting from a trust. E.g. a spouse can have made significant contributions to the house so that a constructive trust is created and still have statutory home rights.

Question 20

Ways equitable interests in land can be created

Answer 20

Express trusts: the legal owner of the property (settlor) wishes to grant the equitable rights to the property to someone else e.g. his children. An express trust can be created through self-declaration (settlor retains legal title) or a declaration and a transfer (settlor transfers legal title to trustees who hold the property on trust for the beneficiaries).

Implied trust: arises where there is no express declaration to make a trust. The trust can either be resulting or constructive.

Resulting trust: if another person that the legal owner contributes to the purchase price of a property at the time of purchase a resulting trust is created where the person will hold a right equal to their contribution.

Constructive trust: where a person has contributed to the property after purchase e.g. by mortgage payment or substantial investments in the property. Based on a two stage test where there must be of two options:
1. An agreement on how the property is to be shared (can be trick/deceitful) + detrimental reliance (e.g. paid money on mortgage where they had no property rights)
OR
2. Conduct (a common intention to share the property?) + direct financial contribution

Question 21

What is a license to land

Answer 21

License: a personal right that does not create an interest to land. Only binding between the original parties from licensor to the licensee, hence NOT binding on a successor in title. A license can authorize anything forma access to the land to a temporary occupation.

Question 22

Express trust

Answer 22

Express trusts: the legal owner of the property (settlor) wishes to grant the equitable rights to the property to someone else e.g. his children. An express trust can be created through self-declaration (settlor retains legal title) or a declaration and a transfer (settlor transfers legal title to trustees who hold the property on trust for the beneficiaries).

Question 23

Resulting trust

Answer 23

Resulting trust: if another person that the legal owner contributes to the purchase price of a property at the time of purchase a resulting trust is created where the person will hold a right equal to their contribution.

Question 24

Implied trust

Answer 24

Implied trust: arises where there is no express declaration to make a trust. The trust can either be resulting or constructive.

Question 25

Constructive trust

Answer 25

Constructive trust: where a person has contributed to the property after purchase e.g. by mortgage payment or substantial investments in the property. Based on a two stage test where there must be of two options:
1. An agreement on how the property is to be shared (can be trick/deceitful) + detrimental reliance (e.g. paid money on mortgage where they had no property rights)
OR
2. Conduct (a common intention to share the property?) + direct financial contribution

Question 26

Interests in land equitable by nature

Answer 26

Beneficial interest under a trust (express, implied, resulting or constructive)

Restrictive covenants: a promise by the covenantor (a landowner) to the covenantee (another landowner) that the covenantor will not use his land in a specific way e.g. not for trade.

An estate contract, including contracts for:
Sale of freehold or leasehold
An option: the person that holds an option can insist that the land is sold to them during the option period (a fixed period of time). Pays an option fee and the purchase price if purchased.
A right to pre-emption
Grant of a lease
Grant of an easement or profit

Question 27

What is good root title

Answer 27

Good root of title is usually a conveyance (by deed) includes:
ownership of the legal and equitable interest in the land,
recognisable description of the land
Doesn’t cast doubt on the title, and
Is at least 15 years old

Question 28

How are legal estate or interests in unregistered land protected against third parties?

Answer 28

Legal estate or interest must be capable of being legal + created using the right formalities (see above).

Legal estates and interests bind the world = all buyers whether they knew about it or not.

The only exception is puisnes mortgages which must be protected by a Land Charge.

Question 29

How are equitable interests in unregistered land protected against third parties?

Answer 29

Equitable interests are equitable because they are not capable of being legal, the correct formalities have not been used.

Equitable interests in unregistered land must be protected by Land Charge or through the doctrine of notice.

Question 30

What is a land charge?

Answer 30

Land charge: Land charges act 1925, replaced by Land charge act 1972.

A way to protect interests in unregistered land. Land charges are not registered against the land, but the estate owner in the version of their name that appears on the deed. Land charges are registered in the Land Registry even if the land is unregistered. From the registration, it constitutes a notice of the charge and any buyer is bound by it regardless of their actual knowledge.

If a Land Charge is not registered before the completion of a purchase, it is void against a buyer for money of a legal estate. An unregistered land charge is not even protected if the buyer had knowledge of it, unless it was registered before purchase. All buyers must search the Land Charges register.

What can be protected by Land Charge: (PERCH)
1. An estate contract
2. A restrictive covenant
3. An equitable easement
4. A home right
5. Puisnes mortgage

Question 31

What is the doctrine of notice?

Answer 31

A way to protect interests in unregistered land.

The doctrine of notice: equitable principle codified in LPA 1925 which applies to:
1. equitable interests from before 1925 (those after are protected as Land Charges) and
2. beneficial interests under a trust (both express or implied).

Beneficial interests under trusts can’t be protected in other ways. The buyer is bound by the equitable interest unless:
1. The buyer is a bona fide: good faith
2. Purchasing for value: gift is not included, 1 GBP is enough
3. The legal estate or interest: legal interest appears in s. 1 of LPA and meets formalities e.g. taking a mortgage or buying a freehold.

A buyer of an equitable interest cannot rely on the doctrine of notice. Which equitable interest prevails will depend on which one was created first, as the first one prevails. If the buyer had notice of the equitable interest, however, they are bound. Notice can be actual (know about the existence), constrictive (fails to make inquiries when inspecting the land that a prudent buyer would make) or imputed (if the buyer’s agent had actual or constructive notice, it is imputed on the buyer).

Question 32

What is overreaching?

Answer 32

Overreaching: a buyer can take property free of any beneficial interests under a trust if the buyer pays the purchase prize to at least 2 trustees.

Question 33

Land register: 3 parts

Answer 33

Property register
Proprietorship register
Charges register

Question 34

Property register

Answer 34

Property register:
verbal description of land by reference to title plan (edges of property guaranteed by the Land Registry)
Indicates whether the title is freehold or leasehold
May indicate easements or rights benefiting the land
Certain things expected to come with the land e.g. air or light is excluded from the title

Question 35

Proprietorship register

Answer 35

Proprietorship register:
Current owners + address
Contains any restrictions on the owners ability to sell. Since 13 October 2003, the Land Registry only has two types of entry for the protection third party interests:
1. Notices:
2. Restrictions: indicates that the proprietor has limited ability to deal with the property or that a condition must be satisfied. More powerful than a notice. Examples: it is assumed that the legal interest in co-owned land is held as joint tenants, except if there is a restriction in the Proprietorship register. A lender can put a restriction in the proprietorship register preventing the proprietor from disposing of the property.

States the class of title, which is determined upon first registration and guaranteed by the state. Classes of title:
Absolute title: most common and best class. The proprietor has vested the legal estate subject to entries in the register, overriding interests and if the proprietor is a trustee any minor interests of which they have notice (such as beneficiaries under a trust)
Possessory title: the proprietor is in possession of the property but does not have the title deed and the proprietor is subject to adverse interests existing at the date of first registration
Qualified title: there is a specified identified defect title that cannot be cured by the grant of absolute title

Question 36

Charges register

Answer 36

Charges register: contains notice of any third-party interests (not minor interests) registered against the title:
Easements affecting the property e.g. right of way
Covenants affecting the property (positive or negative)
Charges e.g. mortgages
Leases over whole or part of land
Notices from third party claiming interest in the property

OBS: this is where land charges for unregistered land are registered.

Question 37

Which events will trigger first registration of unregistered land + deadline for registering + consequences for not registering

Answer 37

Transfer of “qualifying estate”: unregistered freehold or unregistered leasehold with more than 7 years to run. Transfer includes sales, gift, court order or assent (assent: transfer of property from a deceased to a beneficiary in will).

A buyer of unregistered land would go through the normal procedure of inspecting land, title and the Land Charges Register + must check register of cautions against first registration held by the Land Registry. Cautions can be made by e.g. someone with an interest in unregistered land and alerts the cautioner.

Voluntary registration is possible. A legal lease for 7+ years must be registered, but does not trigger the registration of the freehold. Legal leases for less than 7 years are protected as overriding interests (see below)

Creation of a first legal mortgage of a qualifying estate (above) triggers first registration.

Deadline for registration: 2 months after triggering the event. Consequences of not registering:
Legal estate reverts to transferor
No grant of legal lease, but an equitable interest is held until registration is completed
No grant of legal mortgage, but an equitable mortgage is held until registration is completed

Question 38

Which interests in registered land must be registered to have an effect?

Answer 38

If the freehold or lease for 7+ years already is registered, certain transactions (registrable dispositions) will only have effect if they are registered too:

Transfer of registered estate

Grant of leases for 7+ years

Grant of a legal mortgage (charge). Prioritized from time of registration

Expressly granted legal easement or profit

Question 39

What are minor interests and how are they protected?

Answer 39

Interests in registered land.
Minor interests (interests affecting a registered estate IARE) are third party interests in land which are not:
1. capable of substantive registration,
2. set out in LRA 2002 s. 27 or
3. overriding interests

It follows from LRA 2002 s. 27 that the buyer for consideration of a registered title takes the title free of unprotected minor interests. Minor interests are protected through notice or a restriction:
1. Restriction: protects interests under trusts (express or implied) and appears in the proprietorship register.
2. Notice: all other small interests than trusts and appear in the Charges Register. Notice can be registered in the Charges Register without the consent of the registered proprietor.

Minor interests in registered land include: (ETCHER)
1. Estate contract
2. Home rights
3. Interests under trust
4. Equitable easements or profit created after 2003
5. Equitable leases
6. Restrictive covenants

Question 40

What are overriding interests?

Answer 40

Overriding interests: interests in registered land that does not appear on the registry, but still binds an owner or buyer of the legal estate (from LRA 2002). Existed under LRA195, but the scope was reduced under LRA 2002. It previously included legal easements, lease not exceeding 21 years and rights of persons in actual occupation.

Overriding interests can be:
1. Registered mortgages (charges)
2. What is registered as a notice in the register and
3. Overriding interests from schedule 3 of the LRA:
(i) Legal leasehold of less than 7 years
(ii) Legal easements and profits created by implication or prescription after 12 October 2003. No deed is necessary and they can be implied by: necessity, common intention, Wheeldon v Burrows, s. 62 LPA 1925, OR bre created by prescription.

One of the three following conditions must be fulfilled for the easement to take effect as an overriding interest:
1. The purchaser had knowledge of the easement or profit on the day of transfer, OR
2. The existence of the right would have been apparent upon a reasonable inspection of the land, OR
3. The easement or profit has been exercised at least once in the year prior to the land transfer

Question 41

Can overriding interests in registered land be protected based on physical presence + conditions

Answer 41

Overriding interest based on physical presence: Safety-net for unprotected minor interests in schedule 3 of the LRA (same as overriding interests): Interests at the time of disposal belonging to someone in actual occupation are also included as an interest.

Interests include every type of property right in land, except: 1. personal rights,
2. home rights and
3. easements (Easement are use of the land and cannot amount to occupation).

Occupation: actual occupation, actual physical presence of a caretaker or representative of a company is enough. Temporary absence is accepted if there is evidence of occupation + intention to return.
Occupation for commercial property: regular car-parking in the garage had been accepted, fences, no trespassing signs, locks.

Requirements:
Interest (proprietary) + obvious actual occupation OR interest (proprietary) + non obvious actual occupation + actual knowledge

Exceptions from overriding interest based on physical presence:
1. The person failed to disclose the right upon inquiry.
2. The person’s occupation was not obvious from a reasonably careful inspection unless the buyer has knowledge.

Question 42

How can a buyer/tenant/mortgagee ensure that they take the land free of any equitable interest held by a beneficiary?

Answer 42

Does the buyer, tenant or mortgagee of co-owned land become bound by an equitable interest held by a beneficiary?

Not if the buyer is overreaching and pays the purchase price to TWO of the trustees. Overreaching does not cover third party interests, which must be looked at separately.

Unregistered land: look at conveyance to see if it says something about how the property is owned, if not this should be assessed (joint tenants or tenants in common + legal and equitable interest ).

The doctrine of notice applies for any beneficial owners, where the buyer is bound unless they are a bona fide purchaser for money without notice.

Registered land: beneficiaries of a trust should place a restriction in the proprietorship register to protect their interest.

If the property is held as joint tenants, no restriction is needed as upon death, the property passes to the survivor.

If the property is held as tenants in common, a restriction should appear in the proprietorship registry warning that a buyer must overreach. If the buyer didn’t overreach, a beneficiary could have an overriding interest if their occupation was obvious and actual, the buyer had knowledge of the interest or the beneficiary failed to disclose their interest on enquiry

Question 43

How is an equitable easement in unregistered land protected against third party rights?

Answer 43

Equitable easement: binding if protected as a land charge after 1926. If not protected as land charge, the easement is void against a buyer for money of a legal estate unless the easement is registered as a Land Charge before COMPLETION of the purchase.

Before 1926 the doctrine of notice applied: binds a purchaser except for a bona fide purchaser for value without notice.

Question 44

How is a legal easement in unregistered land protected against third party rights?

Answer 44

Legal easement: binding on the world

Question 45

How are legal and equitable easements in registered land protected against third party rights if existing before 12. October 2003?

Answer 45

All legal easements and profits + equitable easements and profits have retained their overriding status under LRA 1925 under the LRA 2002. They will bind a buyer for consideration even if they do not appear on the registry.

Question 46

How are express legal easements + profits in registered land protected against third party rights if existing after 12. October 2003?

Answer 46

Legal easements and profits are completed by deed.

Burden: Charges register of servient title to bind a third party

Benefit: Property register of dominant title to be enforceable.

If the easement or profit is not registered it is only an equitable easement or profit.

Question 47

How are legal easements and profits created by implication or prescription after 12 October 2003 protected against third parties?

Answer 47

These are not created by deed to be legal, but can be created by: necessity, common intention, Wheeldon v Burrows, and s. 62 LPA 1925 or prescription.

They are overriding interests if:
1. the buyer has knowledge of it,
2. the existence was apparent on reasonably careful inspection of the land or
3. it has been exercised at least once in the year prior to purchase.

Question 48

How are equitable easements and profits existing after 12 October 2003 protected against third parties in registered land + how do they arise?

Answer 48

Equitable easements and profits existing after 12 October 2003 can arise in 3 ways:
1. created by deed but not registered,
2. expressly created but no deed or
3. created for an uncertain duration of time.

Equitable easements and profits are only minor interests: they will only bind the buyer if the person holding the interest has entered a notice on the charges register of the servient land.

Question 49

How are benefits of covenants in registered land protected against third parties?

Answer 49

A benefit is a benefit, regardless of whether the covenant is negative or positive.

Original covenantee: Must be registered to the Property Register of the dominant title to be enforceable.

Original covenantee’s assignee:

The benefit form the covenant will only bind third parties where:
1. it touches and concerns the land
2. it is intended to run with the land
3. at the time of the grant, the original covenantee held the legal estate

Question 50

How can burdens of covenants bind the original covenantor’s purchaser?

Answer 50

Covenantor: buyer (makes a promise to the seller)
Covenantee: seller (given a promise by the buyer)

Original covenantor’s assignee (can the original covenantor assign the land with the burden of the covenant and bind the buyer?):

Common law: No liability.
Transfer of burden: the burden of the contract cannot run with the land and the original covenantor remains liable under the doctrine of privity (you cannot enforce a burden on a third party (not party to a contract).

Assignment of burden: the burden of the contract cannot be
Must rely on alternative measures incl:
1. indemnity covenants,
2. create a lease instead of selling as the covenant survives the lease
3. Doctrine of mutual benefits

Equity: Tulk v Moxhay allows for the passing of a burden from a covenant if:
1. The covenant is NEGATIVE (means not positive, hence involve spending money)
2. The covenant as entered into for the benefit of the land retained by the original covenantee and the dominant land must be clearly identified
3. Covenant touches and concerns the covenantees land
4. The original parties intended the burden to run with the land
5. Covenantee complies with equitable maxims

Halsall v Brizell + Davies v Jones: Exception from Tulk v Moxhay under the doctrine of mutual benefit and burden, where a burden of a positive covenant can run with a land if the covenantee also received a benefit in exchange for the burden. Conditions:
1. benefit and burden is contained in the same transaction
2. correlation between benefit and burden
3. Original covenantor’s assignee must have had the opportunity to renounce the benefit and therefore also the burden.

Question 51

How can benefits of covenants bind the original covenantor’s purchaser?

Answer 51

Covenantor: buyer (makes a promise to the seller)
Covenantee: seller (given a promise by the buyer)

Common law: a benefit of a covenant can be transferred it:
1. It touches and concerns the land
2. The parties intended the benefit to run with the land
3. the coventee held the legal estate in the land to be benefitted and the covenantee’s successor must also hold the whole or part of the legal estate in the land.

Assignment: the covenant benefitting the covenantee is passed on to the coventee by an express assignment at the same time as the transfer of the land.

Passing of a benefit in equity

Annexation: permanent attachment of the covenant to the dominant land

Express annexation: the covenant expresses an intention to benefit a defined piece of land (the whole dominant land). It is not enough that the covenant states that it benefits the covenantee and their successors.

Implied annexation: the annexation was obviously intended and it would be an injustice to ignore the intention.

Statutory annexation: a freehold covenant is automatically annexed under LPA 1925 s. 78 to land retained by the covenantee if:

1. The covenant was created after 1925 (after LPA)
2. The covenant touches and concerns the land: benefits the coventee for the time being and it ceases to have an advantage if separated from the land

Exceptions: the original covenanting parties can exclude these effects and they are excluded if needed for the land benefited by the covenant to be identifiable from a description, plan or reference.

Assignment: same as under common law, a benefit of a covenant can pass a successor by express assignment
Building schemes: relatively rare and excluded by modern developers. The scheme applies to a defined area, estate is laid out in lots, the common owner intended the restrictions to apply to all lots and the buyer bought the lots on the basis that the restrictions would benefit all the lots in the scheme.

Question 52

How will a benefit of a covenant bind third parties in unregistered land (still held by original covenantee)?

Answer 52

Exists in rem - binds everyone regardless of notice.

Question 52

How will a benefit of a covenant bind third parties in registered land (still held by original covenantee)?

Answer 52

Must be noted on the Property Register of the dominant title to be enforceable

Question 53

How will a burden of a covenant bind third parties in unregistered land (still held by original covenantee)?

Answer 53

Must be registered as a class D land charge

Question 54

How will a burden of a covenant bind third parties in registered land (still held by original covenantee)?

Answer 54

A minor interest. Must be noted in the charges register of the servient title to bind the purchaser

Question 55

Is mortgage legal or equitable interest?

Answer 55

Legal interests if made by deed, and can be created over an equitable interest e.g. a co-owners mortgage over an equitable interest in a trust.

Question 56

How is a mortgage protected against third party rights in registered land?

Answer 56

Only becomes a legal mortgage when it is registered in the charges register. Priority depends on time of registration. The lender may be bound by third party interests created before the loan if it is a registered mortgage, there is a notice in the register or an overriding interest. A beneficial interest under a trust is protected by actual occupation before the mortgage.

Question 56

How is a mortgage protected against third party rights in unregistered land?

Answer 56

If a first legal mortgage is created over unregistered land, the mortgagee can take custody of the title deeds. Legal mortgage protected by deposit of deed is binding against the world and triggers the first registration of the land.

A puisnes mortgage (deed is not deposited) must be protected as a Class C Land Charge. If not it is void against a buyer, unless protected as a land charge before completion of the purchase.

Question 57

How is a lease protected in unregistered land?

Answer 57

Unregistered land: Legal leases are binding against the world. Equitable leases after 1926 must be registered as a land charge, and before 1926 the doctrine of notice was used.

Question 58

Lease protected registered land

Answer 58

Leases more than 7 years: registrable disposition and has its own title and register. If not registered, the lease is only equitable.

Leases less than 7 years: automatically protected as an overriding interest

Equitable leases: a minor interest and protected by entry of a notice in the charges register. If not registered, it may be an overriding interest if there is actual occupation or the buyer has knowledge or the tenant failed to disclose their interest on enquiry

Question 59

Deed requirement

Answer 59

Deed requirements:
In writing
Clear that it is a deed
Witnessed (by one witness)
Signed, and
Delivered

Question 60

Legal rights in land that does not have to be made by deed

Answer 60

Exceptions of legal interests and estates that does not have to be made by deed:

short term lease/parole leases, if
Less than 3 years (including periodic lease where the period is less than 3 years)
Tennant has immediate rights to possess the land
Market rent
Landlord does not charge a one-up sum such as a fine or premium

Question 61

How are equitable interests in land created?

Answer 61

Grant of estate or interest that can only exist in equity, e.g written covenants. Are transferred by written and signed document.

Grant of estate or interest by someone that only holds the equitable interest, as you cannot grant more than you possess. Are transferred by written and signed document.

By contract to create or transfer a legal estate or interest. A valid contract and that the remedy of specific performance (equitable remedy) is available is required. The contract must be in writing, incorporate all expressed terms and be signed by or on behalf of the parties, and the parties must have clean hands (including not breaching contract terms)

Grant of estate or interest that could have been legal right but does not fulfill requirements (e.g. not valid deed). The contract must be in writing, incorporate all expressed terms and be signed by or on behalf of the parties, and the parties must have clean hands (including not breaching contract terms).

By express trust. Created by a signed written document, does not have to be a deed.
Exception: implied trusts are not created through written and signed documents, but results from the parties conduct.

Question 62

Joint tenancu vs tenancy in common

Answer 62

Joint tenancy: two or more people that hold the whole property together. If one dies, all rights are transferred to the other (rule of survivorship). The rights do not pass under the rules of intestacy or will. Legal ownership to joint property can ever be severed, but joint tenancy in equity can be severed,

Tenancy in common: several people holding a property together in equal or unequal shares. If one dies, their share to the property will be part of the deceased’s will or intestacy.

Question 63

What is co-ownership in land, types of co-ownership and when does a trust arise?

Answer 63

Co-ownership: more than one person owns the property at the same time. Includes joint tenancy and tenancy in common. The legal ownership has to be held as a joint tenant and cannot be severed. Joint tenancy cannot be severed. the equitable estate can be held as tenants in common or joint tenants.

A trust of land arises if:

The land is acquired by more than one person jointly as co-owners (resulting trust)

A person acquires rights in the land through their conduct (constructive trust)

The landowner intentionally sets up a trust by transferring title to the land to the trustees for the benefit of others (express trust)

Trustee (must be 18+ and no more than 4 people): legal owner, beneficiary: equitable owner. Trustees have power as owners and sell the trust land.

Question 64

Test to determine whether the equitable ownership in land is held as tenants in common or joint tenants.

Answer 64

The legal ownership has to be held as a joint tenant and cannot be severed. Joint tenancy cannot be severed. the equitable estate can be held as tenants in common or joint tenants.

Is it joint tenancy or tenancy in common in equity? Depends on a 4 step test:

1. Unity:
   Unity in possession: they both have a right to possess all the land
   Unity in interest: they both have identical interests in the land (indicates joint tenancy)
   Unity in title: co-owners acquired rights from the same document
   Unity in time: they received interests at the same time
   If there is no unity if interest, time or title it indicates that there is a tenancy in common.
2. Does the deed that transfers the land to the co-owners contain an express declaration? The deed should set out how the land is to be owned and an express declaration is strongly advised by the Land Registry.
3. Does the deed transferring the land to the co-owners contain words of severance? Indicates tenancy in common
4. Does equity presume tenancy in common? There is a presumption that equity presumes joint tenants, as equity follows the law and under the law the legal ownership has to be as joint tenants. The presumption is rebutted when:
   - The property is used for business,
   - There are different contributions to the purchase prize
   - Exceptional circumstances when one owner has contributed with a far greater share of the finances of the home.

Question 65

How is joint tenancy severed?

Answer 65

Severance is a method in which joint tenancy in equity can be converted into a tenancy in common. Must happen inter vivos (during the co-owners life time) and a will cannot affect a severance. Severance can be affected by a formal severance by written notice and informal severance.

Formal severance by written notice: notice does not require consent from the other tenants. There is no rule about how a written notice must be drafted (it does not have to be signed) but it must be clear that the tenant wishes to sever his joint tenancy immediately (future intent is not enough).

Must have been received or deemed received by all other joint tenants. Postal rules apply: registered or recorded letters are deemed received unless returned and ordinary post is deemed served if left at their last place of known abode or business.
Informal severance: methods that may sever the joint tenancy:
Mutual agreement
Course of dealing: shown through clear acts that they own distinctive shares. No case law.
Acts operating on the joint tenant’s share: when the joint tenant disposes of the equitable share by sale, gift, lease or mortgage
Bankruptcy:
Homicide:
Post-acquisition money management: the presumption of joint tenancy is rebutted through e.g one of the parties contributing substantially to the mortgage.

The effect of severance is that the previous joint tenant in equity will now own a share of the property as a tenant in common, whilst the rest of the joint tenants will continue to hold the rest of the property as joint tenants in equity.

Question 66

How are disagreements between trustees in property solved under TOLATA?

Answer 66

TOLATA s. 14: trustee or person with interest in the property can make an application to the court under s. 14 where the court has a wide discretion to order on the trustees exercise of their functions and the extent of personal interests.

TOLATA s. 15: sets out the factors that the court should consider when exercising powers under s. 14:
Intention of the creator of the trust
Purpose of why the property is on trust
Welfare of any minor occupying the land
Interest of any secured creditor of any beneficiary

Question 67

Difference easements and profit a prendre

Answer 67

Easement: A right for one landowner to do something on another landowners land, to benefit their own land.

Profit a prendre: a right to take something that exists naturally from another land e.g. right to fish, hunt, extract minerals or graze animals.

Easements and profit a prendre are similar, but key differences are:
An easement cannot exist in gross, and both a dominant and servient tenement must be identified for there to be an easement. A profit a prendre can exist in gross and only a servient tenement (the land that holds the natural resources) must be identified.

Weeldon v Burrows is thought to only apply to grants of easement (not reservations), not profits.

Question 68

COnditions for easements and profits to be legal rights

Answer 68

Both easements and profit a prendre can be legal rights if they:
1. Are granted for forever (fee simple absolute in possession) or a certain period of time (term of years absolute). Cannot have an uncertain duration.

2. made by deed (in writing, signed, witnessed by one person,
3. clear that it is a deed and delivered).

Exception: Wheeldon v Burrows, s. 62 LPA 1925

Question 69

How are express easements/profits created?

Answer 69

Express grant: the servient owner executes a deed to the dominant holder granting an easement.

Express reservation: a seller reserves/retains rights over the land that are sold. The sold land becomes the dominant land and the retained land becomes servient.
Implied by necessity

Question 70

Test to determine the existence of an easement or profit - what is the definition of an easement?

Answer 70

There is no legal definition of an easement. Test for assessing whether it is an easement or profit a prendre:

1. One dominant and one servient tenement (land that profits from the right).
2. An easement can only exist if it is attached to the dominant land. An easement becomes part of the land and any future owners of the dominant land will enjoy the benefit of the easement. If there is no identifiable dominant land, there is no easement, but a license or profit.
3. The easement accommodates the dominant tenement:
   must be connected with the normal enjoyment of the land (connection: not be geographically too far away from each other).

The right must benefit the land itself, not just the owner. E.g. Would any owner see the easement as a benefit? Does the right improve the marketability of the land? Examples that were easement: right to use communal gardens and a right to place a pub sign. A right to put pleasure boats on a canal was not an easement as there was no connection between the boat and the ordinary use of the dominant land.

4. The properties do not have the same owner or occupier. A landlord and tenant relationship is enough to satisfy the criteria. If the lands are owned by the same owner, the right is a “quasi-easement” and can be converted to an easement upon sale of part of the land.
5. The easement must be capable of forming the subject matter of a grant: includes 4 points:
   5.1. The easement is capable of exact definition. E.g. the right to a view is too vague.
   5.2. The easement does not involve expenditure of the servient owner. The servient landowner does not have any obligation to maintain the part of land where the easement is found, but the dominant tenement has the right to carry out repair works. The only exception are fences for livestock, where the owner of adjoining land is obliged to keep the fence repaired.
   5.3. The easement is not so extensive that it amounts to a claim to joint possession of the servient tenement: includes both time and space. E.g. to park a car on the servient land could be an easement if the land is big enough.
   5.4. The law is cautious for new types of negative easements. Negative easement: the right exercised by the dominant tenant prevents the servient tenant from doing something on their land e.g. lights. The only negative easements recognised in law are a right to light, air, not have support undermined, right to prevent diversion of water running in an artificial channel

Question 70

How are implied easements/profits created?

Answer 70

Both grants and reservations can be implied

Arises when an easement is necessary for the use and access of the land. E.g. a landlocked land that cannot be accessed unless it is accessed over another person’s land.

The right is very limited and there can’t be any other options (dangerous options are enough for not applying an easement by necessity). An easement can only be implied for purposes for which the dominant land was being used for at the time the necessity arose.

Implied by common intention
Applies to both grants and reservations
Where land is conveyor for a purpose that the grantor knows about, an easement over the servient land which is necessary for the purpose to be carried out is implied in favor of the dominant tenant.

Wong v Baumont: Wong’s part of the property was to be used as a restaurant, but no smells could be emitted. Wong was entitled to install a ventilation system that went through part of the building which was retained by Baumont as the ventilation system fulfilled the purpose of no smell.

Question 70

How is an easement created under Section 62 LPA 1925?

Answer 70

Section 62 LPA 1925: a conveyance of land is deemed to pass to the buyer all buildings, fixtures and legal easements and other advantages that pertains to the land or a part of the land and at the time of the conveyance were enjoyed with the land. Exception: if the deed states otherwise.

Wright v Macadam: extended the scope of s. 62 to create a new easement. Tenancy was renewed and the tenant had previously had a right to store coal in a shed. The renewal was silent about this right, but the effect was that a legal easement to store coal was created, as the right existed at the time of renewal.

Conditions:
1. Conveyance: a written instrument that transfers a legal estate. Includes leases and mortgages but EXCLUDES sale
2. The land is occupied by different people (exception Wheeldon v Burrows + easement to light).
3. There was a privilege at the date of the conveyance
4. The right is capable of being an easement or profit.

Question 71

Wheeldon v Burrows

Answer 71

The rule in Wheeldon v Burrows: effect is that a quasi-easement will be converted to a full, legal easement in favor of a buyer.

Applies only to grants (not reservations). Considered that the rule has no application to profits, just easements.

The conversion of quasi-easement to easements happens if:
1. A quasi-easement existed prior to sale (the owner of the dominant and servient land can be the same person)

2. The right is continuous and apparent (obvious from an inspection of the land by e.g. a conveyer)
3. The right is necessary for the reasonable enjoyment of the sold land (the requirement is less strict than for an easement of necessary (see above))
4. The right must be in use at the time of sale

Question 72

Covenants definition and types, incl. def of covenantor and covenantee + assignment and annexation

Answer 72

Covenant: promise to do or not to do something. They are usually imposed by a seller of part of the land to ensure that the buyer does or does not do something. Covenants are equitable by nature and cannot be legal.

Positive covenant: requires a positive effort or expenditure to perform an obligation. E.g. not let the property fall into despair, contribute to the cost of shared driveway, paint the exterior of a house every x years.

Negative covenant: requires that the submissive abstains from something. E.g. keep land as open space, not divide flats, not use property for anything else than dwelling house.

Covenantor: makes the promise and holds the burden. Servient land is the burdened land.

Covenantee: recipient of promise and holds the benefit. Dominant land is the benefited land.

Annexation: the benefit of the covenant is attached to the land of the covenantee and passed with the land to any successor of the covenantee.

Assignment: an express transfer of the benefit of the covenant to a successor in title to the covenantee.

Question 72

Are restrictive covenants enforceable after both dominant and servient land changes hands?

Answer 72

Restrictive covenants:

Covenantor’s successors: not enforceable against the covenantor’s successor under common law. May be enforceable against the covenantor’s successor under equity if the requirements in Tulk v Moxhay are fulfilled:
1. Covenant is restrictive
2. Created to benefit the dominant land which was retained by the covenantee
3. Touches and concerns the dominant land
4. Made with intention to burden the servient land
5. The owner (current) of the servient land has notice of the covenant for it to bind them

Covenantees successors: must prove that they have the benefit of the covenant in equity to be able to enforce it, as it can only be enforced under equity.

Question 73

What is prescription and how is it created?

Answer 73

Prescription: if the dominant tenant can show use of the right for 20 years, it is presumed to have lawful origin and a legal easement is created.

Conditions prescriptions: the right has been exercised by or on behalf of a fee simple owner against a fee simple owner (two different freeholders):
Continuously (can be a chain of fee simple holders), and
As of right (right is exercised without permission, force or secrecy. Mere toleration is not enough to be permission).

3 types of prescriptions

1. At common law
2. The doctrine of lost modern grant : presumed that there was a grant of right since 1189, but that the grant is lost.
3. Prescription act 1831: easement 20 years and profits 30 years. They will obtain a prescriptive easement even though it is clear that the easement was obtained well after 1189. Short interruptions (less than 1 year) in use of the land in those 20 years are accepted.

Question 74

Restrictive covenant requirement creation

Answer 74

Equitable by nature. must be created in writing and signed (deed would meet the requirement).

Question 75

Are positive covenants enforceable after both dominant and servient land changes hands?

Answer 75

Covenantors successors: not enforceable against a covenantors successor under common law or equity. The original covenantor remains bound by privity of contract. May be directly or indirectly transferable under an alternative scheme e.g. indemnity.

Covenantee’s successors: can pursue the original covenantor under the doctrine of privity of contract, as long as the covenantee can show that the positive covenant has passed to them under the doctrine of common law (annexation or assignment).

Question 76

Remedies for breach of positive covenant.

Answer 76

Breach of positive covenants: usually damages under common law. If the breach is by the original covenantor, the covenantee may seek specific performance. This is not available against covenantors successors as the original covenantor no longer has control of the land and can’t perform.

Question 77

Remedies for breach of restrictive covenant.

Answer 77

Breach of restrictive/negative covenants: restrictive covenants only run with land in equity and an injunction is therefore the principal equitable remedy at the courts discretion. The court may also award damages instead of an injunction where
the injury is small,
capable of being estimated in money,
is adequately compensatable in money and
it would be oppressive to grant an injunction.

Question 78

Modification and discharge of covenants - how?

Answer 78

Modification and discharge of covenants

expressly released by deed

Unity of seisin where the dominant and servient land comes under common ownership

S. 84 LPA 1926 for restrictive covenants where an application can be made to the Lands Chamber of the Upper Tribunal.

An insurance may be purchased for restrictive covenants, where the insurance accepts financial risk if the covenant is enforced.

Question 78

How are leases created?

Answer 78

3+ years: a deed is required for a legal lease

3 years or less (incl. Periodic lease where period is less than 3 years): short term lease where no formalities are required as long as the tenant has immediate possession, market rent is paid and the landlord does not charge a fine or premium.

Equitable lease can be created where the formalities of a legal lease have not been followed, where (i) there is a contract to create or transfer a legal estate, or (ii) there is an attempt to use a deed that’s invalid

(i) Walsh v Lonsdale doctrine/requirements: valid contract that complies with LPA s. 2 (in writing with all express terms and signed), clean hands (under equity)

(ii) Must have a valid contract that complies with LPA s. 2 (in writing with all express terms and signed), clean hands (under equity)

Question 79

What is privity of estate?

Answer 79

Privity of estate: the relationship between a current tenant and its current, immediate landlord. It does not matter if these parties were not parties to the original agreement.

There is also privity of estate between an original landlord and an assignee of an original tenant.

Consequence: All covenants that “touches and concerns the land” are enforceable by and between people with privity of contract.

Question 80

how are benefits and burdens passed under Landlord and tenants covenants act LATC 1995

Answer 80

Landlord and tenants covenants act LATC 1995 applies to all transfers after 1 January 1996.

Tenant: only bound by covenants in a lease whilst the lease is vested in them. Any covenants that are not expressly personal are transferred upon assignment of the lease and they do not need to touch and concern the land.

Landlord: upon sale, the new landlord takes all benefits and burdens of the covenants. Any covenants that are not expressly personal are transferred upon sale and they do not need to touch and concern the land. As opposed to an assigning tenant, a selling landlord is not automatically released, but most obtain release from covenants under s. 6 and 8 of the LATCA 1995. The landlord remains liable if a release is not obtained. Alternative exit: landlord can state in lease that their liability ends with a disposal of the reversion.

Authorised Guarantee Agreements (AGA) are entered into between landlord and outgoing tenant to release the tenant from any liability. The agreement includes a guarantee that the incoming tenant will perform the lease covenants. If the new tenant doesn’t perform, the landlord can take action against the tenant party in the AGA. The old tenant may recover loss from the new tenant under common law (Moule v garre) or an expressed indemnity (indemnities are not implied, as they are under the old regime).

LATCA 1955 s. 17, 18 and 19 reply to new and retrospectively to old agreements, imposing:
Recovery of a fixed charge, including rent, from a tenant,
An assignee agrees to a variation of the terms that were not a part of the original lease or
The tenant pays the sum demanded under s. 17 and an overriding lease can be demanded.

Question 81

What is an alienation clause?

Answer 81

Alienation: tenants option to dispose of the remaining leasehold. This can be done through a mortgage, parting with possession or occupation, an assignment where the tenant passes their whole interest to a new tenant or a sublease where a lesser lease is carved out of the lease into a sublease.

As the tenant and landlord have contractual freedom, the agreement between them may absolutely prohibit alienation of the lease. Under the Landlord and Tenant Act LTA 1988, the landlord, when receiving a written application for assignment or underletting, must give consent (unless reasonable to withhold) and written notice of their decision + conditions, and a written refusal if consent is withheld.

Question 82

remedies for breach of leasehold covenants (including forfeiture): debt action

Answer 82

Landlord’s remedies for non-payment of rent:
Debt action: to sue the tenant for lease does not bring the lease to an end. The landlord is prevented from bringing a claim of lease after the expiration of 6 years from the date on which the arrears (restanser) became due.

Question 82

remedies for breach of leasehold covenants (including forfeiture) CRAR

Answer 82

Landlord’s remedies for non-payment of rent:
Commercial rent arrears recovery CRAR: in effect from April 2014 and only available against the tenant currently in possession. The landlord may enter the land without a court order to cease the tenant’s goods and sell them. Applies only to commercial property, for normalt rent, the rent due must exceed 7 days worth, the landlord must give 7+ days notice and only an enforcement agent can take control of the goods. Does not bring lease to a end.

Question 83

remedies for breach of leasehold covenants (including forfeiture) Forfeiture

Answer 83

Forfeiture: also called a right to re-enter and can be exercised against the current tenant to retake physical possession of the land by prematurely terminating the lease. Forfeiture must be expressly regulated in the lease. The right to forfeiture can be waived expressly or implied by the landlord doing some act supporting the existence of the tenant. Forfeiture can be done by court order or without, but for whole or part dwelling houses, court-order must be obtained. The tenant can apply for relief against the forfeiture.

Question 84

Landlord’s remedies for breach of other covenants:

Answer 84

Damages: does not bring lease to end and can be brought against current or former tenants.

Specific performance: only against current tenant and does not end lease

Forfeiture: must be regulated in the lease and brings the lease to an end. Subject to court-order for dwelling houses and generally a notice. Breach of a covenant against alienation is a once and for all breach and no remedy is available. Tenants can apply for relief.

Self-help remedy for landlords in relation to a tenants breach of a covenant to repair. The lease must allow the landlord to enter the property, give the tenant notice of repair, that the landlord can complete the work if the tenant does not and that the landlord can recover the costs form the tenant.

Question 85

Tenants remedies for breach of a landlord covenant

Answer 85

Specific performance/injunction: discretionary by the court and rarely ordered

Damages: see above.

Self-help: landlords failure to perform an obligation does not entitle the tenant to withhold rent, but for a repair obligation, the tenant can notify the landlord that they will perform the repair and withheld rent for costs.

Question 86

How can leases be terminated?

Answer 86

Effluxion of time: fixed term lease comes to an end when the term comes to an end
Notice to quit: periodic tenancy that is terminated upon notice
Break clause: fixed date or rolling date exercisable by both parties
Surrender: parties mutually agree that the tenant’s estate it yielded to the landlord. Express surrender must be contained in the deed
Disclaimer: arises upon bankruptcy/liquidation of the tenant
Frustration: something unexpected happens.
Repudiatory breach: one party breaches the root of the contract
Merger: tenant purchases the freehold reversion and holds both interests at the same time.
Forfeiture: see above

Question 87

If an easement does not include info on who has to pay for maintenance, what are the rules?

Answer 87

Neither servient or dominant land is under an obligation to construct the way. Neither party can claim contribution from the other for any work carried out.

The dominant has a right to enter the land and construct the way, but must do so with ordinary skill and prudence and is under no obligation to maintain or repair.

The servient is under no obligation to maintain or repair, but can do so if he carries all costs.

The dominant has a right to enter the land to maintain and repair, but must cover all costs himself.