Land

Question 1

What are the requirements of prescription for easements?

Answer 1

Common law: Used for 20 years reasonably regularly
Prescription Act: no use for 1 year or more is interruption
Used without force, secrecy and permission

Question 2

4 parts of Wheeldon v Burrows?

Answer 2

-Rights must have been enjoyed as a quasi-easement
-It was continuous and apparent
-Quasi-easement necessary for reasonable enjoyment of land
-Use by common owner at date of transfer/lease - enjoyed in past and used again in near future

Question 3

What is the only thing s62 applies easements into?
What are the 2 ways it operates?

Answer 3

Transfer or lease of land by deed (cannot be by contract)

Either where prior diversity of ownership - where lease has expired and is granted to same or new tenant

Or where was enjoyed as quasi easement - implies easement into first lease or transfer deed (but must be continuous and apparent)

Question 4

What are the land charges and letters?

Answer 4

C(i) Puisne mortgage
C(iv) Estate contract
D(ii) Restrictive covenant
D(iii) Equitable easement
F Home right

Question 5

When will an implied legal easement be an overriding interest in unregistered and registered land?

Answer 5

Registered - overriding provided that either:
-in actual knowledge of new owner
-Obvious on reasonably careful inspection of land
-Exercised within a year before transfer of servient land

Unregistered - legal interests bind the world. Will be overriding of first registration

Question 6

What is the purpose of annexation test?

Answer 6

Why object is attached (priority over degree of annexation)

If it is for more convenient use or enjoyment of the chattel as a chattel or to enhance the land or building in some way

Question 7

What is an option to purchase? Valid?

Answer 7

Where mortgage where lender can purchase mortgaged property - void if granted at same time as mortgage (as borrower can’t take property free of mortgage)

Can be valid if granted in subsequent transaction and independent of mortgage

Question 8

What are the remedies for a mortgagee?

Answer 8

Debt action - used in addition to another remedy e.g. sue for shortfall where sold the property and still an outstanding debt
Possession
Sale
Receiver - administrator whose function is to get income from land e.g. continuing existing business (must act with due diligence but lender not liable for receiver negligence)
Foreclosure

Question 9

What does the pre-action protocol and AJA apply to?

Answer 9

Where property is partly or wholly residential

Discuss debt with borrower and accept reasonable requests for new payment plan - possession is last resort

If likely going to pay sum within reasonable time - court can postpone

Question 10

When does mortgagee’s right to sell arise? When is it exercisable?

Answer 10

Arises as soon as one portion of capital due (with interest-only mortgage - arise at legal redemption date - usually about 6 months in)

Exercisable:
-Notice requiring payment of whole and borrower defaulted (can be done at any time)
-Some interest is outstanding for 2 months
-breach of another mortgage provision - e.g. convenant to keep in good repair

Question 11

What is the rule at common law regarding covenants? What is the rule in Tulk v Moxhay?

Answer 11

The burden of a covenant cannot pass to successor at common law

Tulk:

1) covenant must be restrictive (if covenant is positive - must apply common law)
2) Must accommodate dominant tenement - covenantee and successor covenantee must hold interest in dominant land, must be in proximity (near to each other), must benefit dominant land (not owner)
3) intention for burden to run
4) must be notice of covenant
Unreg: d(ii) land charge if purchaser for value, if gifted then doesn’t matter whether protected or not
Reg: Must be proceed by entry of notice in charges register of servient land

Question 12

How does the benefit of a covenant pass in equity?

Answer 12

a) annexation:
express: ‘benefit of owners + successors in title’
statutory: annex benefit to land if not expressly excluded (so automatic)

b) assignment: benefit exists separately form land so must be transferred when land is transferred
Must be in writing, + signed by person transferring benefit

c) Building scheme - benefit passes to all new owners
1. All buyers buy from same seller
2. Seller divided estate into plots
3. Covenants intended to benefit all plots
4. Each buyer buys on understanding each covenant intended to benefit all plots

Question 13

How does the benefit of a covenant pass under common law (usually positive covenants)

Answer 13

1) Express assignment (in writing, express notice of assignment given to covenantor)

2) Implied assignment
a) covenant must touch and concern land (affect nature, quality, use, value of land)
b) Intention benefit should run with dominant land (express or implied)
c) Original covenantee must have legal estate in dominant land when covenant made
d)successor covenantee must hold legal estate in dominant land

Question 14

What are the presumed put on notice for undue influence relationships?

Answer 14

• Parent/child
• Grandparent/grandchild
• Brother/sister
• Employer/employee
• Friends

Question 15

What rights are only capable of being equitable?

Answer 15

Restrictive covenant
Interest in trust of land
estate contract

Question 16

What are equitable interests that will be overriding? When will they not be overriding?

Answer 16

Equitable interests under trust of lad
Equitable leases
Options to purchase
Interest arising by way of estoppel

Need to be in actual occupation (not defeated by temporary absences) unless:
-holder of interest (or solicitor) asked to disclose right and didn’t when it was reasonable to do so
-Not obvious on reasonable inspection of land (and don’t have knowledge)

Question 17

What are the 4 unities? What are they needed for?

Answer 17

Unity of time: interest must vest at same time
Unity of title: must take interest from same document
Unity of interest: Interest must be same nature and duration
Unity of possession: Each entitled to possession over all land

for joint tenancy (will be tenancy in common if 4 unities aren’t present (as long as unity of possession!))

Question 18

Where there is no express declaration, when will there be a presumption for tenancy in common?

Answer 18

Land is business asset and
Purchase price of non-domestic property has been paid in unequal shares

Question 19

How can a joint tenancy be severed?

Answer 19

Notice in writing: show unequivocal and irrevocable desire to sever immediately - must be served on all other equitable joint tenants (if posted - as long as left last known place of abode or business and not returned undelivered - deemed served when it would have been delivered (not necessary to have been read!))

Other acts or things:
-Total, partial or involuntary alienation
-Mutual agreement - agreement enough to sever (even if later change mind or transfer not finalised)
-Mutual conduct (not where reached a point of mutual agreement, but negotiations over prolonged period suggested that treating one person’s share as separate

Question 20

Formalities for:

(1) Deed for sale
(2) Legal mortgage
(3) Mortgage of equitable interest
(4) Equitable mortgage (Defective legal mortgage)
(5) Express legal easements
(6) Express equitable easements (i.e. not for whole term)
(7) Equitable easement (invalid deed)
(8) Restrictive covenant

Answer 20

(1) Labelled deed, dated, signed by seller and witnessed
(2) Labelled deed, dated, signed by borrower (grantor)
(3) Writing and signed by borrower (grantor)
(4) Writing, signed by both parties
(5) Deed, dated, signed by burdened person
(6) Writing and signed by burdened person
(7) Writing, signed by both parties
(8) Writing and signed by grantor

Question 21

For Wheeldon v Burrows, implied by grant/reservation?

Answer 21

Wheeldon v Burrows (only grant - e.g. new owner impliedly acquires easement - original owner can’t reserve easement over land sold/leased)