Land Flashcards
A legal mortgage must be made by _____. Which means it must:
Deed
Be clear on its face that it’s a deed, signed by borrower/mortgagor, attested (witnessed), and delivered (usually by dating the document)
Redemption date
Earliest date loan can be paid in full and property redeemed
Any clause attempting to exclude right to redeem is void
Term postponing right to redeem will be void if it makes the right illusory
Repayment period
Longest time that can be taken to pay off the mortgage in full
5 remedies for mortgagees to enforce their security (legal mortgages)
- Sue for debt: often little practical use bc the borrower likely hasn’t paid bc they don’t have the money
- Take possession: can take possession at any time if borrower defaults but if there is a dwelling, can only get possession via courts
- Foreclosure: does not arise until contractual date for repayment has passed, extinguishes right to redeem, court order to pass legal estate from borrower to lender (used rarely)
- Sell: don’t need to apply for court if mortgage created by deed and redemption date has passed.
But only exercisable if: interest payments >2mo arrears, written request for payment and 3 months passed without it OR breach of another term of mortgage (will usually take possession first) - Right to appoint receiver as agent of mortgagor: usually commercial, receiver manages or sells property
Covenantor
Person entering into the covenant (usually the buyer)
Covenantee
Person having the benefit of the covenant (usually the seller)
Essential characteristics of a lease
Certainty of term
Exclusive possession
Appropriate formalities
Plus requirements of contract law like intention to create legal relations
Requirements for good root of title
At least 15 years old at date of contract
Deal w whole legal and equitable interest in the property
Contain an adequate description of the property
And
Do nothing to cast doubt on title
What is the epitome of title
Chronological list of documents with a copy of each document attached to the epitome
How long after a triggering event does an application have to be made to HMLR?
Within 2 months
What happens if fail to register title?
Transfer of the estate becomes void and reverts to the seller
What estates can be substantively registered with their own title number and register?
Estates in land (freehold and leasehold)
Rentcharges
Franchises
Profits a prendre in gross
What’s on the charges register?
Encumbrances on the land such as restrictive covenants or mortgages
What’s on the property register?
Identifies the property by postal address and reference to title plan
Specifies legal estate held and details of the lease if a leasehold
Any rights benefitting the property
What’s on the Proprietorship Register?
Specifies class of title held and name of holders of legal estate
Any restriction affecting title
Degree of annexation test
the greater the degree of attachment to the land, the more likely it is to be a fixture.
if so firmly affixed with nails, screws or the like that removing it will damage the remaining structure, likely to be a fixture
Purpose of annexation test
fixture vs fitting: whether the owner intended to make the item a permanent part of the land, such as a statue that is a focal point of the architectural design
if degree and purpose of annexation tests conflict, purpose test prevails
Name the possible legal estates in land
freehold (fee simple) or leasehold (term of years absolute)
the 5 legal interests
must be created by deed.
mortgage
easement
rentcharge
profit a prendre
right of entry
Easement
right to use one piece of land (servient tenement) for the benefit of another (dominant tenement)
Rentcharge
relatively uncommon in practice
requires a landowner to make a periodic payment in respect of land to the rentcharge owner (typically a former owner of the land)
profit a prendre
an interest in land enabling someone to take something from the land of another
profit a prendre appurtenant
a right attached to a second parcel of land in the same way as an easement (right to take timber or fish)
profit a prendre in gross
right owned personally by the profit holder not attached to ownership of a second parcel of land (a person has a profit a p i g to go onto others’ land to collect peat.) registered with its own title
Right of entry
a right, reserve in a leasehold or rentcharge contract enabling the holder to enter the premises under certain circumstance
To be valid a deed must:
be in writing
state on its face that it is a deed
be signed by the grantor in the presence of a witness who attests their signature (signs to verify they witnessed the grantor’s signature)
be delivered (shows an intention to be bound, usually by dating or sealing the doc)
puisne mortgage
mortgage not protected by deposit of deed with lender (second mortgage etc. for unreg land)
if someone receives unregistered property as a gift are they subject to equitable interests?
yes, regardless of whether they have notice of the interest
Adverse possession of unregistered land:
claimant can be awarded possessory title if they can show:
they have had actual, physical and exclusive possession of the land for at least 12 years
without permission of the landowner
prevents former owner from bringing a suit to recover the land from the squatter and gives the squatter right to apply for title
time frame for application of first registration
within 2 months of date of triggering event
failure to register conveyance -> legal estate reverts to seller as transfer becomes void
failure to register lease or mortgage->transferor has legal title but holds as a bare trustee
possessory title
based on factual possession rather than documentary evidence
for ex: title deeds have been lost or adverse possession
Good leasehold title
freehold title not been produced to HMLR on application to register the lease
Absolute leasehold title
awarded when HMLR inspected all superior leasehold and freehold titles
Notice on the register of title
relates to something that burdens the land
ex. covenant, estate contract
binding if there is notice and if fail to enter a notice means the interest will not bind a purchaser for valuable consideration
Restriction on the register of title
used to prevent any dealing with the land other than in accordance with the terms of that restriction
ex: tenants in common might put restriction to restrict sales by just 1 of them
What is an overriding interest?
an interest which is capable of binding a buyer despite not appearing on register of title
includes:
legal lease of under 7 years
implied legal easements or profits if knew/obvious from inspection or exercised within 1 year
person in actual occupation with a property right in the land
implied legal easements or profits a prendre override first registration if:
the buyer knew of it or it would be obvious from inspection
or
it is exercised within one year of the disposition
Section 14 of Trusts of Land & Appointment of Trustees Act
used when co-owners can’t agree about when or how to dispose of property
enables 1 co-owner to apply to court for order relating to trustee’s duties including order to sell
relieves the trustee of need to obtain consent or declare nature of other person’s interest
S15 of Trusts of Land & Appointment of Trustees Act
sets out factors court must consider in determining s14 order. includes:
-intentions of those who created the trust
-purpose for which the property is held
-welfare of any minor who occupies land
Assignment
when tenant disposes of their entire remaining interest in a lease. replaced by assignee
assignee usually required to sign a licence to assign with landlord to create privity of contract between them
Essential characteristics of a lease
certainty of term, exclusive possession, appropriate formalities
reversionary lease
lease that provides it wont take effect until a later date
periodic tenancy
tenancy defined by a period of time such as “yearly”
automatically renews unless one party gives notice they are ending it
tenancy at will
personal agreement between landowner and another party which is not an estate in land.
for ex, landowner allows buyer to take possession before the written contract
forfeiture remedy
right of landlord to end lease early and re-enter premises as remedy for a tenant’s default
not implied into a lease, only available if expressly included in terms of a lease
even if it is included, statutory protections for tenants including right to settle arrears and apply for relief
LL must service notice to forfeit specifying breach, time to remedy and setting out compensation payable to LL
Jervis v Harris Clause
‘self-help’ clause that gives the landlord the right to enter the premises and make a repair if the tenant breaches covenant of repair, landlord gives notice to the work to be done and tenant doesn’t comply
if landlord resorts to self-help, they may recover the costs of the repair as a debt
Authorised Guarantee Agreement
landlords may require of outgoing tenant as a condition of consenting to an assignment
tenant acts as guarantor for their immediate successors
surrender a lease
tenant gives up possession to the landlord on agreement of both parties
merger (lease)
if parties agree that the landlord will transfer the reversion to the tenant
if headlease ends via merger or surrender, does sublease end?
no
if headlease ends by expiry, NTQ or forfeiture, does sublease end?
generally yes
easement implied by existing use will pass on sale of part of a landholding if it is
continuous (in regular use at the time) and apparent (obvious on reasonable inspection), necessary to reasonable enjoyment of the land and was used by the seller for the benefit of the land now being sold
Actual notice (equitable interests)
The person has actual knowledge of the interest
Constructive notice (equitable interest)
Had they made reasonable enquiry, they would have discovered it
Imputed notice (equitable interests)
Notice given to the agent of the buyer
Which estates can be substantively registered
Estates in land
Rent charges
Franchises
Profits a prendre in gross
Can all have their own title number and register
