Land Flashcards
Real property vs personal property
Real => Corporeal hereditaments (tangibles) vs incorporeal hereditaments (intangibles)
Personal => choses in possession (physical, movable things) vs choses in action (rights which do not have a physical existence)
Limitations to ownership of land
Airspace – landowner allowed rights in the airspace only to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it
Things in the ground – ownership of coal/oil/gas laid down by statute and gold etc belongs to the crown
Wild animals – landowner does not own wild animals on their land but does have the right to hunt them
Running water – landowner can draw water only if they have appropriate licence to do so
Development and building – subject to planning control/permission
Fixtures v fittings
Fixtures = form part of land => must remain with the land when land sold on
Chattels/fitting = removable objects that do not form part of land => seller will be free to take them
Degree/method of annexation test
Test 1
ie Way in which an item is fixed to the property
Item is firmly fixed to the property so that it would cause serious damage if removed => presumed to be a fixture
Freestanding items are rebuttably presumed to be chattels (fittings)
Presumption may be rebutted by test 2
Object/purpose of annexation test
Reason why the item was attached to the property
Whether item brought onto land with an intent to make a permanent improvement of only a temp one
If permanent improvement, likely to be fixture regardless of degree of annexation
2nd test carries more weight and is conclusive (definitive test)
Legal estates in land
Freehold (fee simple absolute in possession – ie of uncertain duration)
Leasehold (term of years absolute)
Creating a legal interest in land
Only by deed. To be valid =
- in writing
- clearly intended to serve as a deed (incl being entitled ‘deed’)
- signed in prescence of a witness who attests by signing deed as well
- delivered (some act signifying that the document is meant to be effective)
Legal interests in land
ie confer rights over land belonging to another
(MEREP)
- Mortgage
- Easements of FSAIP or TOYA (right over land for benefit of adjoining land)
- Rent charges (Interest in land requiring the landowner to make a periodic payment in respect of land to the rentcharge owner)
- Rights of entry
- Profits a prendre (Interest in land enabling someone to take something from land of another)
- In gross = can exist independently from land ie can be exercised for personal benefit of the owner and can be bought and sold independently (can be registered at HMLR with own title)
- Appurtenant – right is attached to a particular piece of land (Cannot be registered at HMLR with own title)
Equitable interests
(legal interest fails, only binds 3rd parties who are not bona fide purchasers for value of a legal estate without notice)
- Restrictive covenant (promise made by one party that they will not use their land in a certain way)
- Positive covenant
- Option/estate contract (contracts relating to land eg an option or sale contract for freehold or leasehold eg exchanged, not yet completed)
- Beneficial interest under a trust
-Equitable mortgages
Statutory interest
ie s30 Family Law Act 1996
Right of occupation as non-owning spouse (intrinsically personal => not capable of being legal or equitable)
No land formalities but in order to claim they must meet certain conditions:
- Parties must still be (legally) married or in a civil partnership
- Home has been/is/was intended to be the matrimonial home
- (legal owner still alive)
Licence (interests)
ie permission to do something you would not normally be allowed to do
Does not carry out proprietary interest in land - merely prevents you from being considered as a trespasser
Bare licence – granted for no consideration; can be invoked (‘when you invite a person into your home to use the staircase you do not invite him to slide down the banisters’) - reasonable notice from licencee
Contractual licence = supported by consideration; revocation may give rise to damages for breach of contract
Exceptions for formalities in legal interest
- parol lease exception (can be granted without deed and even orally if):
- Not exceeding 3 years
- Take effect in possession (immediate right to occupy)
- Lease granted for best rent which can be reasonably obtained (market rent)
- Without a fine or premium (not paid a lump sum instead of the rent) - Exceptions for implied or prescriptive legal easements
- Legal periodic tenancy can arise even where there is no deed
Formalities in creating an equitable interest
Estate contract:
- In signed writing (by or on behalf of each party to the contract)
- Doc must combine all the terms the parties have agreed
Equitable interest (other than estate contract) where no trusts are involved => minimal formality requirement = interest be created by signed writing
Express trusts over land => declaration of trust must be evidenced in writing and signed by settlor
Sale/gift of an equitable interest => signed writing
Implied trust does not have to comply with any formalities
Role of title deeds/proving ownership in unregistered system
Unregistered => must prove own land
=> must produce documents commencing with good root title and demonstrating an unbroken chain of ownership lasting at least 15 years
Often a conveyance
Must:
- Be at least 15 years old at the date of the contract
- Deal with the whole legal and equitable interest in the property
- Contain an adequate description of the property
- Do nothing to cast doubt on the title
Epitome of title = chronological list of the documents with a copy of each document attached to it
Seller will send original title deeds on completion once sale proceeds have been received
Investigating title
= process of checking the documentation provided to ensure that a seller owns what they are selling (done prior to exchange of contract)
Title passes on completion
Enforcing 3rd party interests in unregistered system
Legal interests = Bound irrespective of notice
- Generally discovered by checking deeds and poss property
Equitable interests = bound only with notice
Registration of land charges
Most equitable rights need to be registered to bind a subsequent buyer (constitutes actual notice)
Registration is against NAME of estate holder (ie not address of property)
C(i) - pusine mortgage
C(ii) - limited owners charge (rare)
C(iii) - general equiatble charge not covered in other categories (rare)
C(iv) - estate contract
D(i) - tax paid on death (rare)
D(ii) - restrictive covenants
D(iii) - equitable easements
Class F – protects non-owning spouse’s statutory right of occupation under Family Law Act 1996
Doctrine of notice in unregistered system
If an interest does not appear on the list of registerable land charges, whether it binds a buyer depends on whether the buyer had notice of it
Applies to equitable interests pre-dating 1926 and beneficial interests under a trust
Buyer takes free of equitable interests if they can show:
- Bona fide (ie good faith)
- Purchaser for value
- Of a legal estate/legal interest
- Without notice
Notice can be:
- Actual ie actual knowledge of interest
- Constructive ie notice of facts which, had they made reasonable enquiry, they would have discovered for themselves
- Imputed ie notice given to an agent
Irrelevant in registered land (as interests are either registered or protected as overriding interests)
Unregistered rights which override first registration
ie interests continue and are superior to the registered land interest
Incl:
- Lease granted for 7 years or less
- Legal easement
- Local land charge
- Interest belonging to a person in actual occupation
Automatically binding when an unregistered title becomes registered at HMLR
Interest may then be protected by entry on land register and status will cease to be overriding
Adverse possession in unregistered land
Owner might lose title to land if occupied by another for 12 YEARS
Arises when:
- Deliberate occupation of land (not common)
- Mistake (ie as to boundary)
Applicant for adverse possession has to show:
- They have actual physical possession of the land
- Possession is exclusive to the applicant; and
- Possession is without permission of the landowner
=> HMLR likely to award possessory title
First registration
All land must be registered on the occurrence of a triggering event if that event took place after 1 December 1990
Triggering events incl (CAGALM):
- Conveyance on sale of freehold land
- An assent
- Deed of gift
- Grant of lease for a term exceeding 7 years; and
- Assignment on sale of a lease having an unexpired term exceeding 7 years
- First legal mortgage
Triggering event occurs => application must be made to HMLR for registration of title within 2 months of date of event
Triggering event occurs but fail to register?
Conveyance =>transfer of legal estate becomes void and reverts to the seller
Lease/mortgage => transferor has full legal title but holds on trust as a bare trustee (ie trustee whose only duty is to follow the lawful instructions of the B in relation to trust assets)
Cost of remedying failure to register will fall on party in default
Registrar may grant extension for good reason
Unregistered transfer may lose priority over other interests
What happens on first registration
HMLR issues a ‘title information document’ (ie an updated copy of the register reflecting the most recent dispositions)
incl proprietorship register specifying class of title held
Class of title
Absolute freehold title = registered proprietor takes legal estate together with all interests subsisting for the benefit of that estate (exception overriding interests or interests which are entered on register if in existence at time of registration)
Qualified title = specified interest is exempted from the effect of registration and => not covered by the guarantee of title (ie some defect/subject to some qualification)
Possessory title = based on factual possession of the land rather than documentary evidence (used when title deeds have been lost or if property has been adversely possessed)
Good leasehold title = Means freehold title has not been produced to HMLR on application to register the lease
Absolute leasehold title = Awarded only where HMLR has inspected all superior leasehold titles and the freehold title
Upgrading class of title
‘curative effect of registration’
Eg good leasehold can be upgraded to absolute leasehold if the freehold title is produced to HMLR
Eg possessory title can be upgraded to absolute freehold if registered proprietor can show possessory title has not been challenged for 12 years since it was granted
Estates that can be substantively registered
Ie with their own title number and register at HMLR
Incl:
- Estates in land – leasehold and freehold
- Rentcharges
- Franchises
- Profits a prendre in gross
Cautions against first registration
Party with an interest in unregistered land => can register a caution which if accepted by HMLR, will result in the caution being registered its own caution title number, ind caution register and caution plan
Owner of estate can apply for caution to be cancelled if cautioner doesn’t have the interest claimed
Caution registered => if an app is made for registration the cautioner will be informed of the fact and given a specified period to object to registration (allows them to protect their interest)
What dispositions do not operate until they are registered
ie must be regsitered each time they occur (after intial registration)
- Transfer of a freehold estate
- Grant of legal lease with more than 7 years to run
- Express grant or reservation of legal easements, profits and rentcharges
- First legal mortgage created out of the estate
- Certain other leases
Registered land => Title passes on registration (not completion)
Register of title
Header section: title number, edition date, date and time of official copy, land registry office which deals with that title
Property register: description of land (and lease held if a lease); benefit of any rights over adjoining land appear as notice
Proprietorship register: details of owner/class of title; any restrictions on owner’s right to sell/mortgage the property (eg trust interest)
Charges register: records rights and interests of others; RCs, presence of mortgage
Overriding interests
Not recorded on the register but can bind a buyer even if the buyer doesn’t know about them (goes against general principle that everything should be on the register) => automatically binds
- Legal leases for 7 years or less (inlc parol lease)
- Between 3 and 7 => can be protected by entry for a notice
- more than 7 => must be substantively registered in its own right - Legal easements (or profits a prendre)
- NOT created by deed => only by prescription or implied grant
- overrding and biding if purchaser had actual or constructive knowledge - Interests of persons in actual occupation
- at time of completion
- satisfied if:
a) Proprietary interest in land
b) in actual occupation (given normal meaning ie living on the property/requires physical presence on land)
c) actual or constructive knowledge
d) Person disclosed the right if enquiries were made of it when he could reasonably be expected to do so
NOTE: Family rights of non-owning spouse not capable of being an overriding interest (FLA rights must be registered as a notice on the register)
Adverse possession in registered land
Applicant for adverse possession must show:
1. Actual physical possession of the land
2. Possession is exclusive to the applicant
3. Possession of the land is without permission of the landowner
4. for a period of 10 YEARS
NOTE: Person in adverse possession does not acquire any rights as to the land, only acquires right to apply for registration of the title at the end of the period of adverse possession
Application made => registered proprietor notified
Registered owner objects => generally app is rejected unless it would be unconscionable or there was a mistake in boundaries between the 2 pieces of land
Application successful => squatter will be registered as the proprietor
Creating an express trust over land
must be made in writing
Creating an implied trust over land
No formalities
RT = contribution to purchase price of a property
CT = agreement between legal and non-legal owner to share equitable interests and non-legal owner, relying on that, acts to his detriment/altered their position
- no agreement => the conduct of the parties allows the court to infer a common intention to share the equitable interest
- In quantifying the share, the court will have regard to the entire course of dealing between the parties and not just the size of the contribution as with RTs
How is the legal estate held
Always held as a joint tenancy
Maximum of 4 people may hold the legal estate jointly (first four on the deed)
Co-owner must be 18and of sound mind
Severance of the legal title is prohibited => legal title will continue to be held as a JT
Under the doctrine of survivorship, on the death of a trustee (one of the co-owners of the property), legal title passes to the other co-trustees
Transfer of legal ownership by deed
How is the equitable interest in land held
No limit on no of people holding equitable interest
Starting point = intention of the parties (Declaration of trust sets out agreement between co-owners as to how the beneficial interests is to be held – conclusive as to the agreement between co-owners)
Intention not clear => presumed equity follows law and beneficial interests reflect legal interests
Can be held as JR or TiC (survivorship does not apply and have separate but undivided shares)
Will be a TiC if:
- Clearly intend to hold as TiC and do not wish survivorship to apply
- Contributed in unequal portions to the purchase price; or
- Entered into a commercial transaction where a JT would be inappropriate
Methods of severance of JT in equity
- Notice (to be effective, any severance by notice must:)
- Be in writing
- Show clear intention ie must show intention to sever immediately, and not at some later date
- Be sufficiently served (if):
a) Served on all the other JTs
b) Notice is left as the last known abode/place of business of person to be served
c) Notice is sent by registered post to person to be served - By treating share as separate eg contracting to sell it
- By disposal of equitable interest
- Mutual agreement
- Course of dealings
ie Where parties act in a way that suggests they intend the shares to be held as a TiC eg where bought for business - By forfeiture (ie one JT killed another JT)
- Bankruptcy (bankrupt’s interest transferred to trustee in bankruptcy)
Selling jointly owned property (overreaching)
Through overreaching equitable right under a trust where:
1. Buyer purchasing legal estate
2. Pays monies to all trustees
3. Trustees are at least 2 in number or a trust corporation (if not => buyer should insist on seller appointing another trustee)
=>an equitable interest that has been overreached will cease to be attached to the land but will attach instead to the sale proceeds in the hands of the selling trustees
Duty to consult Bs when acting on sale of trust property
Resolving disagreements between co-owners (s14 and s15 TLATA)
S14:
- In the case of a dispute, either the trustee of the land (legal owner) or the B (with an equitable interest) may apply to the court for a decision
- Does not give courts power to appoint or remove a trustee
s15:
- factors the court will consider in coming to a decision incl:
a) the purpose for which the property on trust is held (consider: does this purpose still exist?); and
b) The welfare of any minor who might be seeking to occupy the property as his home
c) Interests of any secured creditor of the B
=> Division of property when relationships break down:
- Consider whether declaration of trust (express = conclusive)
- Proof of common intention (see CT above)
Privity of contract v privity of estate
Privity of contract = parties to the contract (who can enforce its terms for the duration of the contract)
Privity of estate = rel of LL and tenant
Fixed term lease - creation and termination
Must be expressly created
Parties must know from the outset the maximum duration of agreement:
- Periodic tenancies will not have certainty of duration unless both parties have the ability to end the tenancy by way of notice
Termination:
- Automatic – end of lease period
- Forfeiture – where the lease includes provisions allowing the landlord to prematurely end if the tenant fails to meet obligations
- Break clause
Rent review clause required to increase rent in long lease
Reversionary lease
Lease that provides that tenant is not to take occupation until some point in future
Valid unless the period between lease being entered into and the tenant taking possession exceeds 21 years
Periodic tenancies
Defined by a period of time eg yearly lease
Automatically renew for another period until one of the parties gives notice that they are bringing lease to an end
Can be express (in which case will usually contain period of notice required to bring the arrangement to an end, otherwise by period of lease)
Or implied
- Provided tenant has gone into possession and started to pay rent
- Relevant period will depend upon the period by which the rent is quantified
- Also if parties have attempted to enter into legal lease but lease is void for some reason eg uncertainty
Tenancy at will
Personal agreement which can be terminated at will by either party
Owner of land allows a buyer to take possession of the land before entering into any written agreement to sell
Leases void for uncertainty
If: Not clear at date of agreement when the term of tenancy will start and end
If uncertain eg dependent on external circs, lease will be void for uncertainty
Creation of a lease
Legal lease => deed (bar parole lease exception)
Equitable => Lease is in writing, incorporates all terms expressly agreed, signed by parties (ie estate contract)
Protecting leases in registered land
A legal lease of more than 7 years = registrable disposition
- Must be registered on the property register by date of registration of new owner, if not =>
- Can be elevated to interests of persons in actual occupation and will bind buyer if it is in existence by date of completion of sale
A legal lease of 7 years or less = an overriding interest
- Must be in existence by date of registration => binding on the buyer of the freehold
An equitable lease = IARE
- Must be registered on charges register at Land Registry by date of registration of new owner
- Actual occupation will protect equitable lease under if not protected by notice
Protecting leases in unregistered land
Legal lease => binds the world
Equitable lease => in order to be binding:
a) Must be registered as a C(iv) land charge
b) Against the owner’s name
c) By date of completion of sale
Lease vs licence
Licence (ie personal right) => none of protections of lease
Key characteristics of a lease:
1. Certainty of duration (fixed or periodic)
2. Exclusive possession
3. Rent (Indicates intention to create legal relations - but not essential)
Court will look at the effect of the agreement, not the label
Prescribed clauses
In addition to covenants, if lease is registrable at HMLR and granted on/after 19 June 2006, lease must contain ‘prescribed clauses’
Ie set of standard clauses at beginning of lease and is summary of key provisions
Excluded from requirement if:
- Granted before 19 June 2006
- Lease made by court order
- Made under statute
- Where appropriate consent or licence for grant of lease was before 19 June 2006
Tenant’s express covenants
- Rent (and taxes eg council tax)
- Implied cov to pay the rent agreed in arrears
- Most leases contain an express cov to pay the rent in advance - Use
- Usually a restriction on the use to which the property can be put (eg limiting to residential purposes) - Alteration of the premises
- Lease may specify that non-structural alterations may be made, though usually with LL’s prior written consent (qualified alterations covenant)
- Lease may prohibit structural alterations entirely (absolute bar on alterations) - Insurance (incl if LL paying a covenant for tenant to pay service charge towards insurance)
- Repair (reasonable jobs of repair + put right things of their own doing)
Landlord’s covenants
- Quiet enjoyment of the property
- Tenant protected from interference with his possession and enjoyment of property by the landlord or someone claiming title through the landlord - Repair
- landlord must keep in good repair and working order:
a) Structure/exterior of dwelling house (incl drains and external pipes)
b) Water, gas, electricity, sanitation installations; and
c) Heating and water heating
Continuing liability for covenants
Imp to determine whether the lease is an old or new lease (vital date = 1st Jan 1996) (date the lease was originally granted not the date of any subsequent assignments)
Old leases:
- Privity of contract => original LL and T remain liable to each other under the lease for the entire lease period even if lease assigned (unless one of them expressly releases other)
- Privity of estate => can pursue current LL/T
New leases (ie after 1995)
- Ts automatically released from their covenants upon assignment
- Authorised Guarantee Agreement (AGA)
a) LL can require outgoing T to sign
b) Outgoing T acts as guarantor for immediate successor in title
- No automatic release for LLs
Subletting
Subtenant liable to perform covenants in the head lease?
No rel between LL and subtenant (no privity of contract or estate)
=> covenants not usually enforceable
Poss able to enforce covenants re use, but this is by virtue of it being a RC
T usually liable for actions of anyone occupying the premises => will incorporate same covenants in the sublease as they are bound to perform in the head lease
Assignment
=> T ceases to be a tenant and incoming T takes on responsibility to comply with the covenants in the lease
Covenants against assignment
- Unless prohibited by lease, T has right to assign lease or grant subleases
=> common for leases to contain restrictions to ensure LL remains control
- Absolute covenant (rare in practice)
- Qualified covenant
a) Prohibited unless LL has given consent and/or certain conditions are met
b) LL’s consent cannot be unreasonably withheld
c) If withheld unreasonably – can seek declaration from court that conduct of LL is unreasonable
Assignment MUST be by deed
- Can be assigned even if consent not granted (though assignor will be in breach of covenant)
Incoming tenant takes responsibility of covenants (privity of estate)
Head lease assigned => sublease remains valid
Remedies for breach of covenant (non-payment of rent)
- Action for debt
- Commercial rent arrears recovery (CRAR)
- if commercial property
- Only available against current T
- LL must provide 7 days notice of enforcement after this time a certified bailiff or enforcement officer can enter the tenant’s property to seize the tenant’s goods - Forfeiture
- LL can re-enter premises and bring lease to an early end due to default by the tenant
- Not implied into lease – lease must contain express provision
Remedies for breach of covenant (for those other than non-payment of rent)
- Damages for breach of contract (to compensate the injured party and put C in same position as if the contract had been fulfilled)
- Specific performance
- discretionary equitable remedy that will only be granted when damages are considered insufficient to compensate loss
- Compels a party to perform contractual obligations - Injunction – discretionary remedy that is only used in cases of restrictive covenants (ordering not to contravene the covenant)
- Forfeiture – as above, but the landlord must serve notice to the tenant
- Notice must: Specify breach, Require breach to be remedied within a reasonable time, and Require T to pay compensation to LL for the breach, if required by LL - Self-help
- Innocent party has option to carry out repairs and claim cost from defaulting party
- For this to apply, tenant must have first notified the landlord of the need to perform these obligations before resorting to set-off
- Debt => straightforward debt action rather than damages action - Pursue guarantors and/or rent deposit
Termination of leases
- Expiry of the lease (Fixed period => automatically come to end at end of that period)
- Termination of notice (Periodic tenancy usually come to end by either party serving written notice of the requisite length on the other)
- Surrender or merger
- Surrender = agree T will give up possession to the LL
- Merger = agree LL will transfer reversion to T
- Both cases – leasehold and freehold interests fuse
4 Forfeiture
- Fustration
- Sublease
- Headlease brought to an end
- => general rule is sublease will also end
- surrender or merger => sub lease will not come to an end
What is an easement
= Right that is attached to one piece of land (dominant tenement) and imposes a corresponding burden on another piece of land (servient tenement)
Personal right is NOT an easement
What is a profit
= right to take something from land belonging to another
Treated v similarly to easements, with exception that they can exist appurtenant (attached to land) or in gross (not attached to land and transferable in own right)
Is the right capable of being an easement? [test]
Test (Re Ellenborough Park) =
- Is there a dominant and servient tenement?
- Does the easement benefit the dominant tenement?
- ie must benefit land – must not be personal right - Dominant and servient tenement must be in separate ownership
- Right must be of a type recognised as capable of being an easement and must be described sufficiently to identify it
Creation of a legal easement/profit (formalities)
Must be by deed
Must be granted to fixed period or be forever
No deed => ineffective in law, but can be equitable if:
- In writing
- Incorporates all terms
- Signed by both parties
Creation of easements and profits (general)
- Express grant or reservation
- Implied grant or reservation (strict necessity, common intention, s62, wheeldon v burrows)
- Presumed grant (ie prescription - common law, lost modern grant, Prescription Act 1832)
Creation of easements and profits (express grant/reservation)
Express creation (ie stated in a separate deed of grant or in writing)
- Express grant – servient owner grants rights over his own land (usually in favour of the buyer)
- Express reservation – in conveying land to another, owner saves or reserves and easement in it
Creation of easements and profits (implied grant/reservation)
On sale of part
- Easements of necessity
- arises where, without it, no use can be made of the land - Common intention
- Is implied to give effect to what both parties intended - Wheeldon v Burrows (ie implied by existing use)
- sale of part where easements are:
a) continuous and apparent
b) necessary to the reasonable enjoyment of the land acquired
c) Had been, and were at the date of the conveyance, used by the seller for the benefit of the land now being sold (ie quasi-easement) - Grant by statute (S62 LPA)
– easements and profits should pass even if not specifically mentioned in the transfer doc
- applies where:
a) Conveyance of part
b) prior to sale of part, the ‘dominant’ land must have enjoyed the benefit of a licence or permission capable of being an easement
c) diversity of occupation at the time of the sale of part
Law does not generally recognise implied reservation UNLESS easements of necessity and intended easements
Creation of easements and profits (presumed grant/prescription)
Ie long use => treated as a legal interest
Requirements:
a) Used benefit unchallenged for over 20 years, and
b) Used benefit as of right (ie did not ask permission or make any payment
- Common law prescription
- Where 20 years’ use, there is a presumption of use since time immemorial (1189)
- This is easily rebuttable - Doctrine of lost modern grant
- Where 20 years’ use, creates the legal fictions that there had been a deed granting the right, but lost - Prescription Act 1832
- Creation of easement by the court – application to court being a pre-requisite for existence of the easement
- Need to show right has been enjoyed for 20 yrs without interruption, next before action and without written consent
- Based on either 20 years or 40 years – act distinguishes
Protection of easements in registered system
- Must be registered to take effect and bind buyer
- Benefit appear as notice on property register of dominant tenement
- Burden as notice on charges register of servient tenement
Created by express grant or reservation
- Must be:
a) FSAIP or TOYA
b) Created by deed
c) Registered (in own right) or else will not take effect as legal interest (and will not override)
-Fails formalities => equitable easement which must be protected by a notice against the servient title in order to bind buyer (as it is an interest affecting a registered estate)
Created by implied grant or reservation, incl s62 or prescription
- Deemed to be legal (does not have to be registered and will be overriding as long as) :
a) Actual or constructive notice (ie would have been obvious on a reasonably careful inspection of the land)
b) Easement has been used by the person entitled to it in the year preceding the disposition of the land
Protection of easements in unregistered system
Legal easements bind the world
Equitable easements must be registered as D(iii) land charge to bind a buyer and constitute notice
What is a covenant
= promise by one party (covenantor- usually the buyer) for the benefit of another (covenantee – usually the seller)
Usually made in a deed - usually arise on sale of part of land;
Only ever equitable => minimum formality requirement is that it be created by signed writing
What types of covenant exist
Positive/restrictive :
- Positive – require the covenantor to do something (ie spend money/take positive action to comply)
- Restrictive – require the covenantor not to do something
NOTE: Distinction is in substance not in form
Must touch and concern land to be a covenant (ie real)/personal
- Covenant touches and concerns land when it enhances the enjoyment of one parcel of real property by burdening the enjoyment of another
Burden/benefit in covenants
Must match ie both in common law or both in equity
Benefited land – land which benefits from the covenant (owned by the covenantee)
Burdened land – bears the burden of carrying out the covenant (owned by the covenantor)
Enforceability of covenants re original parties
Have privity of contract in both common law and equity (=> benefit and burden run)
=> can always enforce covenants
Enforceability of covenants at common law (benefit runs?)
Yes if:
- Express assignment; OR
- Impliedly if:
a) Touches and concerns land
b) Original parties had legal estate (TOYA or FSAIP)
c) Original parties intended benefit to run
Applies whether RC or PC
Enforceability of covenants at common law (burden runs?)
Generally no
BUT indirect enforcement mechanisms
- Chain of indemnity covenants
- Mutual benefit and burden rule (Halsall v Brizell)
Enforceability of covenants in equity (benefit runs?)
Yes if:
- Touches and concerns land; AND EITHER
- Express assignment; or
- Implied (ie intended benefit to run)
[=> only diff with common law is no need for parties to hold legal estate)
Enforceability of covenants in equity (burden runs?)
Yes (Tulk v Moxhay) if:
- RC
- Touches and concerns land
- Intended to run
- Correctly registered as notice (whether registered or unregistered systems)
a) Ie registered land => covenant appears on register of title
b) Unregistered land => covenant registered as D(ii) alnd charge
What is a mortgage
= proprietary interest in land given by the mortgagor (land owner) as security for a loan
Creation of a legal mortgage
Must be by deed. Can be done in various ways:
- By demise
- Ie long lease of the mortgagor’s land to the mortgagee with the provision that the lease will come to an end when the mortgage is redeemed and all capital and interest is repaid - By way of legal charge
- Mortgagor creates charge by either:
a) Executing a deed which declares the mortgagor is charging the land by way of legal mortgage with the repayment of sums specified; or
b) Charging a registered estate by deed with payment of money
Creation of an equiatable mortgage
Not created by deed => may be a valid estate contract to create a mortgage ie in writing, signed by both parties and containing all the agreed terms
Should be registered
Puisne mortgages
Land can be mortgaged several times
Second mortgage = puisne mortgage (must be registered as a C(i) Land Charge at the Land Charges Department or it will not be binding on a potential buyer
Protecting mortgages on registered land
Legal => registrable disposition which must be completed by registration
Equitable => protected by placing notice or restriction on property’s register of title
Protecting mortgages on unregistered land
First mortgage
- Protected as will have custody of the title deeds
- Legal mortgage not protected by deposit of title deeds must be protected by registration of a puisne mortgage (Class C(i) land charge)
Equitable mortgage
- Equitable mortgage of legal estate (whether first or subsequent mortgage) => protected by class C(iii) land charge
- Equitable mortgage of equitable estate => mortgagee should give notice to the trustees
Protecting mortgages by a company
Must be registered at companies registry within 21 days of creation of the charge
Not registered => will not bind liquidator or creditors if company subsequently goes into liquidation
Mortgage subject to following 3rd party interests
- Legal tenancy of unregistered land granted before the mortgage was created
- Legal tenancyof registered labd that does NOT exceed 7 years
- Equitable tenancy of unregiststed land which has been protected as an estate contract by registration of a C(iv) land charge (NOTE Tenant goes into possession and pays rent => court would normally infer a period tenancy (legal tenancy) and this will bind the mortgagee)
- Equitable tenancy of registered land that does NOTexceed 7 years and the tenant is in occupation
- Interest of an occupier who does not own the property but who contributed to its purchase price
Remedies for lender in evnet of default by borrower (legal mortgage)
- Debt action
- Possession (but if includes a dwelling can only be sought through the courts)
- Appointing a receiver
- to manage/sell the property
- usually commercial - Foreclosure
- Mortgagee becomes owner of the property
- Right to foreclose does not arise until after contractual date for repayment of the mortgage has passed
- Takes place by court order that transfers legal estate from borrower to the lender - Power of sale
- Can sell property without need to apply to court provided mortgage made by deed and contractual date set to redeem the mortgage has passed (Usually 6 months after creation of the mortgage)
- Exercisable only if one or more of following is satisfied:
a) Interest payments are more than 2 months in arrears
b) There has been a written request for repayment of capital and 3 months have passed without payment
c) There is a breach of some other term of mortgage (eg failing to keep property insured)
- Power is subject to any prior mortgages but will be free of any estates of interests over which the mortgagee itself has priority
- Proceeds of sale held on trust and money must be used in strict order
Remedies for lender in evnet of default by borrower (equitable mortgage)
Debt/possession/foreclose - as for legal
Sell – power exists but does not have statutory power to convey or transfer legal estate
Receiver – only arises if mortgage was created by deed. Otherwise an app can be made to the court for the appt of a receiver
Priority rules for mortagages
Generally = first in time takes priority
Legal mortgage of registered legal estate
- Have priority over any interest whose priority is not protected when mortgage is registered (incl all later mortgages)
- Overriding interest will have priority if existed before mortgage is registered
Equitable mortgage of registered legal estate
- Priority depends on whether it has been protected in the appropriate way
- Protected (eg by notice on register of title) => will have priority over any later dealing with legal estate
Mortgage of unregistered legal estate
- Physical possession of title deeds provides security to lender => if protected by deposit of title deeds will have priority over all other mortgages
- Priority of all other mortgages depends on date on which registered as a land charge:
a) Any legal mortgage that is not protected by the deposit of title deeds should be registered as C(I) land charge (puisne mortgage)
b) Equitable mortgage registered as C(iii) land charge
c) Mortgages of legal estate registered at the land charges dept rank according to their date of registration
Priority where equitable interest is being mortgaged
- Same whether land is registered or unregistered
- Ie first in time takes priority
