LAND Flashcards
What is the focus of the study of Land law?
The Crown’s ownership of land
The physical land
The history of land ownership
Rights in the land
The sale of property
Rights in the land
Correct. Land law is all about rights in the land, rather than the physical land itself. These rights can be very powerful. Land law is also the study of different land-related relationships, such as landlord and tenant.
A person describes themselves as the owner of a piece of land, which includes a house and garden. What do they own?
The physical land
A right to possess the land
The physical building on the land only
A right to possess the land
Correct. We are completely wrong in everyday language when we refer to ourselves as owning a piece of land. The Crown owns all land in England and Wales. What we technically own is a right to possess the land.
Which of the following pieces of statute is the foundation of modern land law?
The Law of Property Act 1066
The Land Registration Act 2002
The Law of Property Act 1925
The Law of Property Act 2002
The Law of Property Act 1925
Land law was radically overhauled by a statute called the Law of Property Act 1925 (LPA). This is the reason that the majority of land law has its roots in statute, rather than case law, and the LPA 1925 is the real foundation of modern land law.
Which of the following options correctly describes the process you must go through to determine if a right being claimed is proprietary or not?
Examine whether the right in question relate to personal or real property
Conduct a physical inspection of the land to ascertain whether there is evidence of the right in question
Determine whether the right in question has been registered
Determine if the right is on the list of recognised proprietary rights, whether it satisfies the substantive characteristics, and has been created/acquired in accordance with the formalities for the right
Determine if the right is on the list of recognised proprietary rights, whether it satisfies the substantive characteristics, and has been created/acquired in accordance with the formalities for the right
Proprietary rights are very powerful. As a result, these requirements will have to be met for a right to have proprietary status in the circumstances.
Which of the following statements best explains what it means if someone holds a proprietary right in the land?
The right is enforceable in personam
The right is in personal property
Compensation is available for breach of a proprietary right
The right is capable of being enforced against third parties
The right will automatically be enforceable against a new owner of the land
The right is capable of being enforced against third parties
A proprietary right is capable of being enforced against third parties. It will not just be enforceable against the grantor of the right. A proprietary right is not, however, automatically enforceable against a third party.
A landowner grants their friend a right to live in the landowner’s house for 5 years. One year later the landowner decides they would like the house back. The landowner goes into the house and changes the locks. Which of the following statements correctly explains what it means if the right to live in the house is determined to be a proprietary right known as a lease?
The friend would be able to recover the right to live in the house for the remainder of the term
The Crown owns the land and would be able to evict the both the landowner and the friend if it would like to
The friend would not be able to do anything as the landowner owns the land
If the landowner sold the house then the friend would not be able to enforce the right to live in the house against the new owner
The friend would have to settle for damages for breach of the right
The friend would be able to recover the right to live in the house for the remainder of the term
A lease is a proprietary right which is enforceable in rem ie the right is in the land rather than against the landowner who granted the right. This means if the right is a lease then the friend would be entitled to recover possession and use of the house for the remainder of the lease term.
Two landowners are neighbours. One of the landowners grants the other a right to store coal in their coal shed. The grantor of the right sells their house. The new owner asks the neighbour to move the coal from the shed. Which of the following statements best describes the legal position?
The neighbour does not need to move the coal if the right is an easement and if it has been registered properly at the Land Registry
The neighbour does not need to move the coal because it is real property
The neighbour will have to move the coal because it is personal property.
The neighbour does not need to move the coal because they have a proprietary right in the land.
The neighbour will have to move the coal because such a right can never be enforced against a third party
The neighbour does not need to move the coal if the right is an easement and if it has been registered properly at the Land Registry
The neighbour does not need to move the coal if the right to store is an easement, provided it has been registered at the Land Registry. A right to store is capable of being an easement. Provided that it satisfies the substantive requirements of easements and has been created in accordance with the correct formalities then it will be an easement. If the easement is registered it would then be binding the new landowner.
What is the technical name for a freehold estate?
Term of years absolute
Fee simple years absolute
Term of years in possession
Fee simple absolute in possession
Fee simple absolute in possession
This is how the freehold is defined in LPA 1925, s 1(1)(a). However, in practice it is always referred to as the freehold.
Does the freeholder need to be physically in possession of a piece of land?
Yes, all of the land
Yes, at least part of the land
No
No
Physical possession is not necessary as ‘in possession’ includes receiving rent.
The particulars of sale for a third floor, two-bedroomed flat in Camden state that the price is £400,000 and there are 125 years left to run on the term. If you bought this flat, what would you be buying?
A personal right in the land
The physical land
A freehold estate
The fee simple
A leasehold estate
A leasehold estate
Though you may think you will be the owner of the flat, what you would actually be the owner of is a 125 year lease of the flat. If you bought this flat, you would have a proprietary right to possess the land for 125 years.
Which of the following correctly describes an estate in land?
A right to use or enjoy the land
A right to possess the land
Physical ownership of the land
A right to possess the land
We cannot own the physical land, we can just own a right to possess the land. This is known as an estate.
Which of the 3 stages of transferring a freehold estate is not necessary to effect a legal transfer of the title?
All stages are necessary
Contract
Registration
Deed
Contract
A contract is not required to legally transfer the land. However, it is usual for the parties to enter into a contract as part of the conveyancing process.
Which of the following options is the correct statutory authority for the rule that a deed must be used to transfer a freehold estate?
LPA 1925, s 52
LP(MP)A 1989, s 1
LRA 2002, s 27
LP(MP)A 1989, s 2
LPA 1925, s 52
A legal estate must be transferred or created by deed. LPA, s 52 relates to the transfer of a freehold estate. It also relates to the creation of a leasehold estate and a legal mortgage and a legal easement as you will learn about.
If a piece of registered land is transferred, at what point is the buyer recognised as being the legal owner of the land?
Registration
When the land is registered for the first time
Exchange of contracts
When the purchase money is paid
Completion of the transfer deed
Registration
Legal title (ie ownership) transfers at the point at which the buyer is registered at the Land Registry.
If the land being transferred is unregistered land, does the transfer need to be registered?
Yes the land transfer will trigger the requirement to register the land for the first time
No there is never a requirement to register a land transfer
No because the legal title transfers at the point at which the deed is completed
Yes the registered title will need to be updated
Yes the land transfer will trigger the requirement to register the land for the first time
The land transfer will trigger a requirement to trigger the land for the first time. This is called compulsory land registration.
A buyer and seller enter into a document that is described as a ‘transfer deed’ for the sale of a piece of land. The seller signs the deed in the presence of their solicitor, who attests their signature. The buyer transfers the purchase money and the seller’s solicitor then dates the document. Which of the following statements correctly explains whether the deed is valid?
The deed is invalid because it has not been delivered
The deed is valid because it complies with LP(MP)A 1989, s 1
The deed is valid because it complies with LPA 1925, s 52
The deed is invalid because it has not been signed by both the buyer and the seller
The deed is invalid because it has not been correctly executed by the seller
The deed is valid because it complies with LP(MP)A 1989, s 1
The deed is valid. It has been clearly intended as a deed by being described as such, it has been correctly executed – signed by the seller in the presence of a witness who also signs and it has been delivered, which was done by dating the document. It therefore complies with a requirements laid down in LP (MP) A 1989, s.1, which is the statutory authority which tells us the requirements of a deed.
A buyer and seller of land agree that the buyer will buy a piece of land from the seller for a price of £100,000. They instruct solicitors. The buyer’s solicitor carries out various investigations into the land before the buyer confirms it is happy to proceed. The terms of the agreement are put into a document, which is signed by the buyer and the seller.
Which of the following statement correctly explains the validity of this document?
The document is valid because it complies with LP(MP)A 1989, s 1
The document is valid because it satisfies the requirements in LRA 2002, s 27
The document is invalid because it has not been delivered
The document is valid because it complies with LP(MP)A 1989, s 2
The document is invalid because it has not been witnessed
The document is valid because it complies with LP(MP)A 1989, s 2
The buyer and seller have not entered into a contract to buy/sell the land. The contract is valid because it is in writing, contains all the agreed terms and has been signed by both the buyer and seller. It complies with LP(MP)A 1989, s 2, which is the correct statutory authority.
A buyer and seller of land agree that the buyer will buy a piece of land from the seller for a price of £100,000. They instruct solicitors. The buyer’s solicitor carries out various investigations into the land before the buyer confirms it is happy to proceed. The terms of the agreement are put into a document, which is signed the seller in the presence of a witness. The document is then dated.
Which of the following statement correctly explains the validity of this document?
The document is invalid because it has not been delivered
The document is valid because it complies with LP(MP)A 1989, s 2
The document is valid because it complies with LP(MP)A 1989, s 1
The document is invalid because the witnessed has not attested his signature
The document is invalid because it has not been signed by both the buyer and the seller
The document is invalid because it has not been signed by both the buyer and the seller
The buyer and seller have entered into a contract to buy/sell the land. The contract is not valid it has not been signed by both the buyer and seller. It does not comply with LP(MP)A 1989, s.2. There is no requirement that either signature be witnessed.
If a piece of unregistered land is transferred, at what point is the buyer recognised as being the legal owner of the land?
Exchange of contracts
When the purchase money is paid
Completion of the transfer deed
When the land is registered for the first time
Registration
Completion of the transfer deed
Which of the following options best explains why approximately 15% of land in England and Wales remains unregistered?
The land is subject to an overriding interest
You only have to register a piece of land if a triggering event occurs eg sale of the freehold estate
The land will be in an area which is not designated as being subject to compulsory registration
The landowner has chosen not to register the land
You only have to register a piece of land if a triggering event occurs eg sale of the freehold estate
From 1926 onwards central government designated various areas as being areas of compulsory registration, so eventually all of England and Wales would be registered. It was not until 1990 that all of England and Wales became designated as an area subject to compulsory registration. The effect of designating an area as being subject to compulsory registration is that if there is then a transaction or event (disposition) with the land which triggers compulsory registration (a triggering event) then the land must be registered for the first time. If there has not be a triggering event with a piece of land it will remain unregistered unless the land owner chooses to make a voluntary first registration application.
Which of the following options best explains the advantages of the system of Land Registration?
There are no overriding interests which could bind the land
Dealing with registered land is very repetitive and so speeds up the process of conveyancing
The process of conveyancing is quicker, simpler and ownership is guaranteed by the state
Approximately 75% of land in England and Wales is now registered so solicitors will be more familiar with the registered land system
The Land Registry offer reduced fees if that land is registered
The process of conveyancing is quicker, simpler and ownership is guaranteed by the state
A buyer of registered land does not need to investigate numerous title deeds to establish ownership and the rights a piece of land has the benefit/burden of. As a result, it is quicker and simpler to investigate a piece of registered land and speeds up the process of conveyancing. Also, ownership of a registered pieces of land is guaranteed by the state, so there is a mistake with the register then the innocent party who has suffered loss can make a claim for compensation against the Land Registry.
Which of the following options is the correct statutory authority for the requirement to register a piece of land for the first time following the grant of a legal mortgage over the unregistered freehold estate?
LRA 2002, s 27
LRA 2002, sch 2
LPA 1925, s 27
LPA 1925, s 4
LRA 2002, s 4
LRA 2002, s 4
LRA 2002, s 4 lists the transactions over unregistered land that trigger a requirement to register the land for the first time. The grant of a legal mortgage over a piece of unregistered land will trigger a requirement to register the land for the first time.
Which of the following options correctly lists the dispositions (ie transactions) that trigger a requirement to register the land for the first time?
The grant of a 3 year lease, the sale of a freehold and the grant of an equitable mortgage
The grant of a 1 year lease, the assent of a freehold and the grant of an equitable mortgage
The grant of a 9 year lease, the gifting of a freehold and the grant of a legal mortgage
The grant of a 6 year lease, the sale of a freehold and the grant of a legal mortgage
The grants of a 7 years lease, the sale of a freehold and the grant of a legal mortgage
The grant of a 9 year lease, the gifting of a freehold and the grant of a legal mortgage
Under LRA 2002, s 4 (first registration) and LRA 2002, s 27 (transactions involving already registered land) the circumstances which trigger compulsory registration now include all of these transactions. It is not necessary for there to be a sale of a freehold estate, the gift or assent of a freehold estate will also trigger a registration requirement. The grant of a lease over 7 years must be completed by registration, as must the grant of a legal mortgage.
Which system for proving ownership of land is governed by the LRA 2002?
Registered Land
Unregistered Land
The Land Registry
Registered Land
The LRA 2002 governs the registered land system. The system was introduced by the Land Registration Act 1925, but this has not been repealed and replaced in its entirety by the LRA 2002.
Overriding interests are a feature of which system for proving ownership of land?
The Land Registry
Unregistered Land
Registered Land
Registered Land
Overriding interests are one of the greatest criticisms of the registered land system as they are interests which do not need to be registered, but will still be binding on a third party purchaser of the burdened land. They arguably defeat the rational for Land Registration however, there are valid justifications for their existence.
Which register in an official copy contains the details of any leases that burden a piece of land?
Charges Register
Property Register
Proprietorship Register
Charges Register
This register contains details of any rights that burden a piece of land eg leases, mortgages, restrictive covenants, easements.
Which register in an official copy contains the description of the piece of land that is registered?
Proprietorship Register
Charges Register
Property Register
Property Register
This register contains a description of the piece of land and the details of any rights that benefit a piece of land.
Which class of title would you to expect to see if the Land Registry is satisfied as to the ownership of the estate and that there is no defect with the title?
Possessory Title
Absolute Title
Good Leasehold
Qualified Title
Absolute Title
This is the best form of ownership and is really what you would want to see on the official copies if you were buying a property. Most properties are registered with this class of title and it means the Land Registry does not consider there are any defects with the ownership. The land is only bound by interests that are registered on the title or overriding interests.
Which of the following options best explains why the mirror principle of Land Registration has never fully been realised?
Around 15% of land in England and Wales remains unregistered
If someone is in possession of a piece of land but has lost the title deeds, they cannot be registered as the legal owner
A buyer of land will have to investigate the equitable ownership of a piece of land in addition to the legal ownership
Certain interests do not need to be registered, but will still be binding on a third party
Certain interests do not need to be registered, but will still be binding on a third party
The mirror principle is the ideal that the register should reflect all matters that the property has the benefit of and all the matters that the property is subject to. It should be a clear and comprehensive account of the ownership and rights that benefit and burden a piece of land. However, this has arguably never fully been realised due to the existence of ‘overriding interests’, which are interests that do not need registering and so do not appear on the register, but will still be binding.
Which of the following statements correctly describes the curtain principle of Land Registration?
The accuracy of the register is guaranteed by the state
The register should reflect all matters that the property has the benefit of and all the matters that the property is subject to
Certain interests do not need to be registered, but will still be binding on a third party
A buyer of land will have to investigate the equitable ownership of a piece of land in addition to the legal ownership
A buyer of land need not be concerned with the equitable ownership of an estate
A buyer of land need not be concerned with the equitable ownership of an estate
The register records the ownership of the legal estate in the property, the legal title. A buyer need not be concerned with the equitable ownership. As these matters are kept off the register we call this ‘behind the curtain’.
Which register in an official copy contains details as to who owns a piece of land?
Charges Register
Property Register
Proprietorship Register
This register contains details of the owner of the legal estate. This person(s) is called the ‘registered proprietor’. Proprietor is another word for owner.
Which of the following confers a personal permission to be on the land?
Licence
Lease
Both a lease and a licence
Neither a lease or a licence
Licence
A licence is a personal permission, a form of contract.
Two parties enter in a document, which they label as a ‘Licence to Occupy’. The term of the licence for ‘as long as the occupier is a student at university’. The right is granted by deed. Which of the following statements correctly explains whether a lease or licence has been granted on the facts?
The document is a licence because there is no certain term
The document is a licence because the correct formalities have not been complied with
The document is a licence because it has been labelled as such
The document is a lease because it has been granted by deed
The document is a lease because the document confers a right to possess the land
The document is a licence because there is no certain term
The document is a licence because the term is uncertain, and we do not know when it will end. There is no certain term. The fact that the document is labelled as a licence is inconclusive and will not be a determining feature. The courts would look at the substance of the document, rather than the label it is given.
Last year two parties entered into a lease for five years of an office space. The lease provides that the rent is ‘a peppercorn’ (ie nothing). The lease confers exclusive possession onto the occupier and complies with the correct formalities. Last month the landlord sold the freehold reversion to a third party. Yesterday, the new owner changed the locks and refused to let the occupier in. Which of the following statements correctly explains whether the occupier will be able to recover possession of the office space?
The occupier will be able to recover possession of the office space because it has a proprietary right in the land under the lease
The occupier will not be able to recover possession of the office space because it only has a personal right in the land
The occupier will be able to recover possession of the office space because the document is labelled as a lease and will therefore bind third parties
The occupier will not be able to recover possession of the office space because it is not paying rent, so the document is a licence
The occupier will not be able to recover possession of the office space because there is no certain term, so the document is a licence
The occupier will be able to recover possession of the office space because it has a proprietary right in the land under the lease
The occupier is a tenant. There is a certain term, the occupier has exclusive possession and the correct formalities have been complied with. It does not matter that the rent is ‘a peppercorn’ as a rent does not need to be payable for there to be a lease. As the occupier has a lease, it has a proprietary right in the land, the defining feature of which is that it is capable of being enforced against third parties i.e. the new freehold owner. For this reason, the tenant will be able to recover possession of the office space, it will not have to settle for damages.
Last year two parties entered into a Licence to Occupy for 2 years of an office space. The licence provides that the rent is £10,000 per annum and that the licensor can share occupation with the licensee, which it does. The licence complies with the correct formalities. Yesterday, the new owner changed the locks and refused to let the occupier in. Which of the following statements correctly explains whether the occupier has a lease or a licence?
The occupier has a licence because the document is labelled as a licence
The occupier has a lease because the correct formalities have been met
The occupier has a licence because there is no certain term
The occupier has a lease because it is paying rent
The occupier has a licence because there is no exclusive possession
The occupier has a licence because there is no exclusive possession
The occupier is a licensee only. There is a certain term, but the occupier does not have exclusive possession as it shares possession with the licensor – it cannot exclude the licensor from the premises. It makes no difference that the correct formalities have been complied with, the requirements of a lease have not been met.
A lease granted for 1000 years can never be a lease and fails for lack of a certain term. Is this statement true or false?
False
True
False
A certain term means you know the duration of the lease and when it will end. This is often evidenced by a fixed term. A fixed term can be as little as a day or as 1000 years, it is still certain and we know when it will end.
In order for there to be lease a rent must be payable. Is this true or false?
False
True
False
This is correct. Although Lord Templeman indicated that payment of rent is essential in Street v Mountford [1985] AC 809, LPA 1925, s 205(1)(xxvii) makes it clear that rent is not essential. This was confirmed in the case of Ashburn Anstalt v Arnold [1989] Ch 1
Two parties enter into a document which is described as a lease of a flat with a rent payable of £12,000 per annum payable by equal monthly payments. What kind of lease does the tenant have?
An implied periodic tenancy of one year
An express periodic tenancy of one month
An express periodic tenancy of one year
A fixed term lease of one year
An implied periodic tenancy of one month
An express periodic tenancy of one year
The lease does not have a fixed term, it has a periodic term, which is determined by reference to have rent is calculated, which is ‘per annum’ on the facts i.e. yearly. It does not matter that it is payable monthly. The lease is written down, it is express on our facts.
Two parties enter into a document which grants a right to possess for 5000 years with a rent of £100 per annum payable each year. Which of the following statements best explains the nature of the document?
The document is a lease because there is an express periodic term
The document is a licence because the term is uncertain
The document is not a lease but there is an implied periodic tenancy on the facts
The document is a lease because there is a fixed term
The document is a lease because there is a fixed term
Although 5000 years is a very long time, the term is certain. We know when the lease will end. This is a fixed term.
Two parties enter into a document which is described as a lease of a house with a rent payable of £1,000 per month payable by monthly payments. The term is described as being for two years. What kind of lease does the tenant have?
An implied periodic tenancy of one month
A fixed term lease of one month
A fixed term lease of two years
An implied periodic tenancy of two years
An express periodic tenancy of one month
A fixed term lease of two years
Two parties enter into a document which is described as a lease of a house with a rent payable of £1,000 per month payable by monthly payments. The term is described as being for two years. What kind of lease does the tenant have?
An implied periodic tenancy of one month
A fixed term lease of one month
A fixed term lease of two years
An implied periodic tenancy of two years
An express periodic tenancy of one month
A fixed term lease of two years
In considering whether a clause in a lease is a sham clause, not reflecting reality and therefore not defeating a tenant from having exclusive possession, which of the following circumstances would likely indicate such a clause is a sham?
A widely-drafted sharing clause that has been exercised by the landlord on several occasions
A landlord retaining a key to access the premises in case of an emergency
A two-bedroomed flat where one room is vacant and the landlord has a right to introduce one other into the premises
A couple sharing a one-bedroomed flat and the landlord has a right to introduce others to share occupation
A couple sharing a one-bedroomed flat and the landlord has a right to introduce others to share occupation
The courts will look at the reality of a situation, looking beyond the label. In doing this, the court would consider a number of factors, as laid down in A G Securities v Vaughan and Antoniades v Villiers both reported at [1990] 1 AC 417t. This includes the relationship between the occupiers and whether it would be appropriate to introduce another to share given the relationship. It would be an unlikely situation to introduce someone into a one bedroomed flat which is being occupied by a couple on the facts and this would indicate the clause could be a sham.
An individual occupies a flat under a Licence agreement. The agreement reserves a right of entry to the licensor in the event of an emergency. The licensor retains a key for this purpose. The clause has never been exercised. Which of the following statements correctly describes whether the individual has exclusive possession?
There is no exclusive possession as the licensor is providing services
There could be exclusive possession if the clause is a sham
There could be exclusive possession as access is restricted
There is no exclusive possession because the individual cannot exclude the landlord from the flat in the event of an emergency
There is no exclusive possession as the access is unrestricted
There could be exclusive possession as access is restricted
Access by the landlord is restricted to only if there is an emergency. This is more of an acknowledgement by the licensor that there is exclusive possession (as it has to reserve this right) rather than a clause that will defeat it. The fact that the licensor retains a key is inconclusive, it is whether access is restricted or unrestricted which will be the determining feature.
Which of the following statements is true about the application of Street v Mountford to business tenancies?
The case applies equally to business arrangements as to residential ones
The case has no application to business arrangements
Business occupiers would only need to establish they have a certain term
An arrangement relating to business premises will always be a lease
The case only applies to certain business arrangements
The case applies equally to business arrangements as to residential ones
A business tenant must also show they have a certain term and exclusive possession in order to show they have a lease, rather than a licence.
Which of the following situations would indicate a business occupier does not have exclusive possession of premises it is occupying?
The landlord grants security of tenure to the tenant
The landlord can relocate the occupier upon given notice
The occupier is not permitted to alter the premises
The landlord retains a key for the premises
The landlord retains a right of access in the event of an emergency
The landlord can relocate the occupier upon given notice
In Dresden Estates v Collinson [1988] 55 P & CR 47 a clause entitled the licensor to relocate the occupier was held to defeat exclusive possession.
Why might the courts be more willing to accept the label given to an agreement by the parties where the parties are in a commercial arrangement?
The courts will always have regard to the label given to an arrangement by the parties
The bargaining power between commercial entities tends to more equal
This is the principle laid down in the case of Street v Mountford [1985] AC 809
Commercial entitles will always be represented by solicitors so will have had legal advice
The bargaining power between commercial entities tends to more equal
The courts are more prepared to accept the reality of the label ‘licence’ than they are in the residential context as there tends to be more equality in bargaining power, with commercial leases often negotiated and parties legally represented.
Your client has agreed to purchase the unregistered freehold of a large farm. The seller signs and dates the transfer deed in the presence of a witness who attests the seller’s signature.
Which of the following statements best describes your client’s position in respect of the legal ownership of the farm?
The seller holds the property on trust for the client until the transfer is registered with the Land Registry
The transfer deed is of no effect because it does not include all of the terms expressly agreed by the parties
The client holds the legal title but it will revert back to the seller if not registered within two months
The transfer will not take effect at law until title is registered with the Land Registry
The transfer deed is of no effect because the client has not signed the document
The client holds the legal title but it will revert back to the seller if not registered within two months
This is correct. The transfer of the unregistered freehold has been effected by deed so the legal title passes to the client on completion, who then has two months to register the land for the first time. See ss 4, 6 and 7 Land Registration Act 2002.
A purchaser has agreed to buy the registered freehold of a large office block. The buyer and seller both sign a document headed ‘deed’ and their signatures are attested by a witness. The document is then dated.
Which of the following statements best describes the legal position?
The purchaser holds the legal title to the property
The transfer will not take effect at law until title is registered with the Land Registry
The purchaser holds the legal title but it will revert back to the seller if not registered within two months
The purported deed is defective but a contract may be construed from the failed grant
The purported deed is defective and the purchaser has no interest in the property
The transfer will not take effect at law until title is registered with the Land Registry
This is the best answer. The transfer must be completed by registration to take effect at law. See LRA 2002, s27(2)(a) and s27 (1).
You act for a refuse collection and disposal company. who recently entered into negotiations with Waste Limited, the owner of a landfill site. Waste Limited has offered your client the opportunity to use the site. The first offer is a 12-month licence to use the site for a payment of £200,000. The second (alternative) offer is the grant of a 12-month lease of a specified part of the site for a payment of £225,000. In either case the maximum amount of refuse that your client may deposit is 25 metric tonnes.
Which of the following options is the best advice to your client as to which offer they should accept?
Your client should accept the lease because it would give it a personal right in the land
Your client should accept the lease because it will entitle R to sue for breach of contract should Waste Limited breach the terms
Your client should accept the lease because it would enable it to recover use of the right to use the site if Waste Limited subsequently tried to revoke the right.
Your client should accept the licence because it is capable of being enforced against third parties should Waste Limited sell the site
Your client should accept the licence because it would give it a proprietary right in the land
Your client should accept the lease because it would enable it to recover use of the right to use the site if Waste Limited subsequently tried to revoke the right.
This is correct. A lease is a proprietary right in the land. This means it is enforceable in rem, the right can be recovered. A licence is a personal right, which means the right cannot be recovered if Waste subsequently tried to revoke it, because a personal right is enforceable in personam.
A buyer and seller enter into an agreement to buy/sell a freehold estate. They enter into a document which is described as a contract for the sale of land. The document contains all the agreed terms and is signed by the seller in the presence of a witness who attests their signature.
Which of the following options correctly describes the validity of this document?
The document is invalid because it has not been registered at the Land Registry yet
The document is valid because it complies with the requirements for a land contract
The document is invalid because it does not comply with the requirements for a land contract
The document is valid because it complies with the requirements of a valid contract for sale at law
The document is valid because it complies with the requirements for a deed
The document is invalid because it does not comply with the requirements for a land contract
This is correct. A contract for the sale of land must comply with LP(MP)A 1989, s 2; it must be in writing, contain all the agreed terms and be signed by both parties. The document is not a valid contract as it has not been signed by both the buyer and the seller.
There is no valid deed as the document has not been intended as a ‘deed’ or delivered. Further, the parties are trying to enter into an contract, rather than the actual transfer of the land.
If this had been validly created, it would grant the buyer an equitable interest in the land called an ‘estate contract’.
An occupier entered into a four year agreement by deed with the owner of a registered freehold building to rent a first floor flat. The agreement contains a clause in which the owner of the registered freehold agrees to clean the flat once every two days. The occupier moved into the premises 2 years ago and the freehold owner has not cleaned the premises once.
Which of the following statements best describes whether the occupier has a lease or licence?
The occupier has a licence because the cleaning clause defeats exclusive possession
The occupier has a licence because there is no certain term
The occupier has a licence because the deed has not been substantively registered
The occupier has a lease because the agreement was created by deed
The occupier has a lease because the cleaning clause is a sham clause
The occupier has a lease because the cleaning clause is a sham clause
This is correct. Sham clauses are those which owners of land may insert into a lease to make it look like a licence (defeating the requirement of exclusive possession) and to deny the occupier certain statutory rights which attach to a lease. The cleaning clause, if genuine, would defeat exclusive possession as it means the tenant is not able to exclude the landlord from the premises ‘once every 2 days’. Whether the cleaning clause is a sham or not depends on whether it is being exercised by the owner of the registered freehold, amongst other factors.
On the facts, the cleaning clause hasn’t been exercised once in 2 years. The court would therefore ignore the clause. On the facts there is a certain term and nothing else to suggest the occupier doesn’t have exclusive possession. The agreement has been created by deed, which are the correct formalities for a 4 year lease. The occupier would therefore have a lease.
A freehold owner of an indoor market gives a jewellery maker a written “licence” to sell jewellery in a space in the market on weekdays from 9am to 5pm, for a weekly payment. There is no fixed term. The terms of the “licence” give the freeholder the right to choose the space each week, and also impose detailed restrictions on what the jewellery maker can sell and the layout and use of the space. The freeholder usually gives the jewellery maker the same weekly space, but on two occasions has moved them to another space.
Which of the following options best describes whether the jewellery maker(the occupier)is a tenant or licensee?
The occupier is a tenant because it is a business context, not a residential context
The occupier is a licensee because it does not have exclusive possession
The occupier is a licensee because the agreement is called a “licence”
The occupier is a licensee because there is no fixed term
The occupier is a tenant because the relocation clause would be thrown out by the court as a sham
The occupier is a licensee because it does not have exclusive possession
Correct answer. Caselaw shows that a moving/relocation clause, and control by the landlord, are likely to preclude exclusive possession in a business context, so the best answer is that they are likely to have a licence and be a licensee.
The other options are incorrect. It is not correct to advise that it is a licence just because it’s called a licence, or to advise that they are likely to have a lease just because it’s a business context. The lack of a fixed term does not make it a licence, because it could still be an implied periodic tenancy due to the weekly payment. There are no facts given that show the court will ignore the terms as a sham, the reality is that the relocation clause is exercised.
incorrect
The occupier is a licensee because there is no fixed term
Your answer is incorrect. The lack of a fixed term does not make it a licence, because it could still be an implied periodic tenancy due to the weekly payment.
Please review the case law on certainty of term and exclusive possession.
Which of the following statements is true in respect of an interest in land?
An interest in land is not capable of being enforced against third parties
Only legal interests in land have proprietary status
An interest in land can be enforced in rem, this means the right can be recovered if the holder is deprived of it
If the holder of an equitable interest is deprived of their right, they are automatically entitled to damages
An interest in land gives the holder of the interest a right to possess the land
An interest in land can be enforced in rem, this means the right can be recovered if the holder is deprived of it
This is correct. An interest in land is a proprietary right which means it is enforceable in rem and is capable of being enforced against third parties.
Where are the list of legal interests found?
LPA 1925, s 1(2)
LP(MP)A 1989, s 1
LPA 1925, s 52
LPA 1925, s 1(3)
LPA 1924, s 1 (1)
LPA 1925, s 1(2)
This is correct. S.1(2) of the LPA lists the interests that are capable of being legal interests.
Which of the following interests in land is only capable of being equitable in nature?
Estate contract
Easement
Right of entry
Mortgage
Estate contract
This is correct. An estate contract t is not a recognised legal interest under LPA 1925, s (1)(2), therefore it can only take effect as an equitable interest under LPA 1925, s 1(3).
A and B enter into a document in which A agrees not to use his land for commercial purposes, What interest in the land does B have?
An easement
No interest
An interest under a trust of land
An estate contract
A restrictive covenant
A restrictive covenant
This is correct. A enters into a restrictive covenant which B has the benefit of. A restrictive covenant can be defined as a promise not to do something in respect of the land.
A and B buy a piece of land together each contributing 50% of the purchase price. A is registered at the Land Registry as the legal owner. What interest (if any) does B have in the land?
A freehold estate
No interest
An estate contract
An interest under a trust of land
A restrictive covenant
An interest under a trust of land
This is correct. As B has contributed to the purchase price, but is not a legal owner, B does not have a legal interest in the land (i.e. B does not own a freehold estate) but equity regards B has having a beneficial interest in the land behind a trust. A trust is automatically imposed in these circumstances, with A holding the property on trust for him/herself and B.
Which statutory provision contains the legal definition of what is land?
s. 1 LPA 1925
s. 62 LPA 1925
s. 52 LPA 1925
s. 205(1)(ix) LPA 1925
s.205(1)(ix) LPA 1925
This is correct. The statutory definition includes; the surface of the physical land, building on the land, fixtures and incorporeal hereditaments.
Which of the following is not included within the definition of land?
Fixtures
Fittings
The benefit of an easement
Buildings
Mines and minerals
fittings
This is correct. Fitting are not included within the definition of land under LPA, 205(1)(ix).
Which of the following statements correctly explains the current position at law in respect of the airspace above an owner’s piece of land?
A landowner owner the upper airspace above his/her land
A landowner owns the lower airspace above his/her land
A landowner owns everything up to the heaven’s above.
A landowner only owns the surface of the land upon which the buildings rest. It does not own any of the air above it.
A landowner owns the lower airspace above his/her land
This is correct. A land owner has rights in what is classed as the lower airspace above his/her land.
A satellite dish is overhanging onto an adjoining piece of land, though is not causing any damage to the land. Which of the following options correctly explains whether this is trespass?
Yes the satellite dish would be committing trespass as it is in the lower airspace above the land.
No the satellite dish is not damaging the land, therefore it is not committing trespass.
No the satellite dish would not be committing trespass as it is in the upper airspace above the land.
Yes the satellite dish would be committing trespass as it is in the upper airspace above the land.
Yes the satellite dish would be committing trespass as it is in the lower airspace above the land.
This is correct. The satellite dish would be classed as trespassing into the lower airspace of the land. The lower airspace is the area above the physical land which is reasonably necessary for a landowner’s use and enjoyment of the land, it does not matter that no damage is being caused to the land. The facts of this case are similar to Kelsen v Imperial Tobacco Co.
Which of the following statements correctly explains the current position at law in respect of the ground below an owner’s piece of land?
A landowner owns up to depths of 600 metres under the Infrastructure Act 2015, s43
A landowner owns only the surface of the land
S/He who owns the land owns everything to the depths below.
A landowner owns the ground under the surface to depths above 300 metres
A landowner owns the ground under the surface to depths above 300 metres
This is correct. The Infrastructure Act 2015, s43 effectively states there is no trespass at depths below 300 metres.
Within the definition of land under LPA 1925, s.205 (1)(ix) a fixture would be classed as which of the following?
An incorporeal hereditament
Chattel
A corporeal hereditament
A privilege derived from land
A corporeal hereditament
This is correct. Corporeal hereditaments are things attached/fixed to the land, what we call fixtures in practice.
Which of the following statements correctly describes the legal position in respect of fixtures?
Fixtures will only pass to a buyer of land if they are included in the sale
An item not attached to the land can be a fixture if it part of the architectural design of a building
An item not attached to the land can never be a fixture
If something is attached to the land it will always be a fixture
An item not attached to the land can be a fixture if it part of the architectural design of a building
This is correct. If chattels are incorporated into the architectural design of a building, they may consequently be classified as fixtures even though they are not firmly affixed. This can be seen in D’Eyncourt v Gregory (1866) LR 3 Eq 382 where a stone garden seat and ornamental statues standing on their own weight were held to be fixtures as forming part of the architectural design of the house and its grounds.
Which test prevails in determining if an item is a fixture or chattel?
The degree of annexation test
Both tests are equally decisive
The purpose of annexation test
The purpose of annexation test
This is correct. The ‘purpose test’ prevails over the ‘degree test’ where there is a discrepancy between them (Holland v Hodgson (1872) LR 7 CP 328)
A picture is attached to the wall of a house. Which of the following statements correctly explains the legal position as to whether the picture is likely to be a fixture or not?
The degree of annexation test will lead to a presumption that the picture is a fixture because it can be removed without damage to the wall
It will depend on the circumstances of the case. If the picture can be removed easily and put in place to enjoy as pictures, it is likely to be a chattel.
Pictures will always be fixtures if they are attached to the wall
If the purpose of attaching the picture to the wall was to improve the building, this indicates the picture is a chattel
Pictures will never be fixtures because they are personal to the owner for the time being
It will depend on the circumstances of the case. If the picture can be removed easily and put in place to enjoy as pictures, it is likely to be a chattel.
This is correct. Such a situation is analogous to the facts of Berkley v Poulett [1977] 1 EGLR 86, and as Lord Justice Scarman states: “if ordinary skill was used, as it was, in their removal, they could be taken down, and in the event were taken down, without much trouble and without damage to the structure of the rooms. The decisive question is therefore as to the object and purpose of their affixing. …I find, applying the second test, that the pictures were not fixtures. They were put in place on the wall to be enjoyed as pictures.”
Which of the following statements is correct?
The mortgagor is the borrower.
A mortgage is a personal right.
The mortgagee is the borrower.
The mortgagor is the lender.
The mortgagor is the borrower.
This is correct. The mortgagor is the borrower, who grants the mortgage as security for the loan.
Which of the following statements correctly describes the likely outcome for a low risk borrower?
A bank is unlikely to loan money to a low risk borrower
They will be charged a low interest rate
They will be charged a high interest rate
They will be charged a low interest rate
When the borrower is a low risk party, s/he will usually be charged a low interest rate.
What is the most common type of mortgage arrangement today?
Interest only
Endowment
Sharia – compliant
Capital and interest repayments
Pension
Capital and interest repayments
Correct. Each month the borrower pays an instalment which consists partly of repayment of capital and partly interest on the outstanding balance.
If a mortgage intended to be legal is not created properly, what is the consequence?
The mortgage will be equitable provided that it is in writing which contains all the terms and is signed by both parties.
The mortgage will fail as an interest in land.
The mortgage will be equitable if it is in writing and signed by the borrower.
The mortgage will be equitable provided that it is in writing which contains all the terms and is signed by both parties.
Correct. A failed legal mortgage will be treated as a contract to create a legal mortgage if it complies with LP(MP) A 1989, s 2.
Which one of the following statements is true?
A mortgage is capable of being a legal interest in land only.
A mortgage is capable of being an equitable estate in land.
A mortgage is capable of being a legal estate in land.
A mortgage is capable of being a legal or equitable interest in land.
A mortgage is capable of being an equitable interest in land only.
A mortgage is capable of being a legal or equitable interest in land.
Correct. See LPA 1925 ss 1(2)(c) and 1(3).
What formalities must be complied with in order to create a legal mortgage?
Deed and substantive registration.
Contract and registration.
Deed.
Contract.
In writing signed by the mortgagor.
Deed and substantive registration.
Correct. All legal interests must be created by deed LPA 1925, s 52; LP (MP) A 1989, s1; and the transaction must be registered to be legal LRA 2002, s27(2)(f).
In Fairclough v Swan Brewery the court examined a clause which postponed the legal date for redemption. What was the outcome of the clause?
The clause was upheld because once the loan was repaid, the borrower would get back what he had mortgaged and during the mortgage he had had the benefit of a low interest rate.
The clause was upheld because it was a commercial bargain made between two experienced business parties.
The clause was struck out because once the loan was repaid, the borrower would get back an estate which was worth much less than at the time of the mortgage.
The clause was struck out because once the loan was repaid, the borrower would get back an estate which was worth much less than at the time of the mortgage.
Correct. The borrower would not get back an unencumbered leasehold which was exactly what he had mortgaged. A leasehold estate is a depreciating asset, and a lease with only 6 weeks left to run, is very different to a lease with 17 years left to run.
When might an option for the lender to purchase the mortgaged property be upheld?
When it is granted in a substantially separate transaction.
When it is granted at a later date than the mortgage.
When it is granted in a separate document.
When the parties have equal bargaining power.
When it is granted in a substantially separate transaction.
Correct. Warnborough V Garmite said that the whole transaction must be looked at to see if it is substantially a mortgage or not. If it is a mortgage, the option will not be allowed and vice versa.
Which one of the following statements on solus ties is true?
The solus tie will be permitted in a commercial transaction if the tie ends before or at the end of the mortgage term.
The solus tie will be permitted in a commercial transaction where the tie ends after the mortgage term ends.
The solus tie will not be permitted in a commercial transaction if the tie extends beyond the mortgage term even if it is a genuinely separate transaction.
The solus tie will be permitted in a commercial transaction if the tie ends before or at the end of the mortgage term.
Correct. This is the decision in Biggs v Hoddinot.
A mortgage loan contains a a legal date of redemption which falls 2 months before the end of a 25 year mortgage term. Which one of the following rights which make up the equity of redemption is likely to be relied upon here by the mortgagor to have the clause thrown out by the courts?
No collateral advantages
No postponement or prevention of redemption
The equitable right to redeem
No postponement or prevention of redemption
Correct. The equitable right to redeem does not arise until 6 weeks before the end of the mortgage term. Courts look at clauses which postpone the legal date for redemption very closely and would consider whether, on the facts, the right to redeem is rendered valueless.
The equity of redemption comprises a number of rights afforded to the borrower. Match the scenario to the aspect of the equity of redemption offended in the circumstances:
An individual mortgaged their 25 year leasehold flat. The mortgage deed specified a redemption date 1 year before the end of the 20 year mortgage term.
A lender makes it a condition of the loan agreement that it has the right to purchase the mortgaged property on serving notice. The right to purchase is included in a separate document, which is signed by the parties 1 week after the mortgage is entered into.
A commercial lender mortgaged their 30 year leasehold shop premises for a term of 10 years. A condition of the mortgage agreement was that the borrower would purchase all their shop supplies from the lender for the duration of the lease.
A borrower need a loan to be able to buy a home. The lender includes a term in the loan agreement that provides the borrower must pay a penalty interest rate, 5% higher, for the remainder of the mortgage term in the event of default.
There should be no postponement of the legal right to redeem
An option to purchase is a clog on the equity of redemption
A collateral advantage will be struck out if unconscionable
A borrower has the right to be protected from unconscionable terms
When does the equitable right to redeem arise?
On the date set out in the mortgage deed.
On the day after the legal date for redemption has passed.
Immediately the mortgage deed is signed.
On the day after the legal date for redemption has passed.
Correct. Equity softened the harsh common law rule by allowing the borrower to repay at any time after the legal redemption date has passed.
Which statutory provision states that an easement granted forever is capable of being legal?
Law of Property Act 1925, s 1(1)(a)
Law of Property Act 1925, s 1(3)
Law of Property Act 1925, s 1(2)(c)
Law of Property Act 1925, s 1(1)(b)
Law of Property Act 1925, s 1(2)(a).
Law of Property Act 1925, s 1(2)(a).
This is correct. This section states that an easement granted or reserved for the equivalent of a freehold estate (ie indefinitely / forever) is capable of being a legal interest in land.
Which one of these is a negative easement?
a right of way
a right of parking
a right to enjoy a garden
a right to light
a right of drainage
a right to light
This is correct. A negative easement is an easement which is enjoyed from the dominant owner’s own land and does not involve entering or using the servient land at all.]
What is the correct term for a right whose primary function is to restrict what can done on the servient land?
a licence
an easement
a covenant
a profit a prendre
a quasi-easement
a covenant
This is correct. the primary function of a restrictive covenant is to restrict what is be done on the servient land.
Part of A’s land is sold by A to B. In the transfer deed, B is given a right of way over A’s land. Which phrase best describes this situation?
an implied grant
a licence
an express grant
an express reservation
an implied reservation grant
an express grant
This is correct. The right is express as it is in writing, and it is a grant as it is a right which A creates in favour of B
Part of C’s land is sold by C to D. In the transfer deed there is no right mentioned for D use the drain which runs under C’s land which was used by C for the benefit of the land sold to D before the land was divided. Which phrase best describes this situation?
express grant
a licence
implied reservation
implied grant
express reservation
implied grant
This is correct. The right is not in writing and must therefore be implied. It is a grant not a reservation as it is a right which is in favour of D’s land that has been transferred.
For an easement to be created by prescription, how many years of uninterrupted user would the claimant need to demonstrate?
20
Easements may arise by prescription or ‘long use’. Generally an easement is claimed by prescription where it has been exercised over land for a long time (at least 20 years), yet no express grant or reservation can be traced.
A prescriptive easement must be exercised ‘nec vi, nec clam, nec precario’ - without force, without secrecy and without permission.
If a right of way is exercised for 20 years by a freeholder against a freeholder but in breach of a sign on the servient land saying “private, for use of patrons only” will the right have been acquired by prescription?
Yes, the right has been exercised ‘nec vi, nec clam, nec precario’
No, the right has been used with permission
No, the right has not been exercised for the requisite period
No, the right has not be used without secrecy
No, the right has been exercised with the use of force
No, the right has been exercised with the use of force?
This is correct. A prescriptive easement must be exercised without force. Force includes the removal of obstructions, or ignoring the protests of the servient owner, which would include the ignoring of signage.
Can a tenant acquire an easement by prescription if it exercises a right without force, secrecy and permission for a 20 year uninterrupted period?
no
Although the right has been exercised for over 20 years, a prescriptive right can only be created as between two freehold owners.
The freehold owner of a property is concerned about building works taking place on neighbouring land. The building works will block the sunlight to the garden.
Could the freehold owner have an easement for a right to light in the circumstances?
No, there is no defined aperture in a garden
Yes, there is a general right to light
Yes, if the freehold owner can show 20 years of uninterrupted use of the right
No, there is no defined aperture in a garden
There is no general right to light. A right to light must be via a defined aperture eg a window. Rights to light do not attach to gardens or open land.
Which case sets out the criteria which must be met for a right to be capable of being an easement?
Re Ellenborough Park
Hill v Tupper
P&A Swift Investments Ltd v Combined English Stores Group plc
Tulk v Moxhay
Borman v Griffith
Re Ellenborough Park
This is correct. This case sets out the four criteria which must be met in order for an easement to be capable in principle of being an easement.
Which one of these is not one of the criteria set out in re Ellenborough Park as essential for a right to be capable of an easement?
There must be no common ownership of the dominant and servient tenements.
There must be a dominant and servient tenement.
The right must lie in grant.
The use of the right must not amount to exclusive possession of the servient land.
The right must accommodate the dominant tenement.
The use of the right must not amount to exclusive possession of the servient land.
This is correct. A right which passes the tests in re Ellenborough Park will nevertheless be disqualified on this basis.]
In the case of P&A Swift Investments Ltd v Combined English Stores Group plc, Lord Oliver sets out a detailed test for establishing whether a right accommodates the dominant tenement. Which one of the following statements is the best summary of that test?
The right only benefits the owner whilst that person owns the dominant land.
The right must not simply benefit a business on the dominant land.
The right makes the dominant land more valuable
The right is not expressed to be personal to the dominant owner.
The right must have a direct beneficial impact on the dominant land.
The right must have a direct beneficial impact on the dominant land.
This is correct. Lord Oliver’s test in essence requires the easement to benefit the land itself, not simply the dominant owner personally.
In which of the following cases was a right of way judicially recognised as being capable of being an easement?
Borman v Griffith
Attwood v Bovis Homes
Phipps v Pears
Re Ellenborough Park
Regency Villas v Diamond Resorts
Borman v Griffith
This is correct. Judicial recognition is an essential element which must be satisfied if a right is to be capable of being an easement.
What types of rights may in future be recognised as new types of easements?
Negative easements only
Positive or negative easements
Positive easements only
No new easements can be recognised: the list is closed.
Positive easements only
This is correct. New negative easements would unduly restrict the use of the servient land: Phipps v Pears.
A right cannot be an easement if the user amounts to exclusive possession by the servient owner. The traditional test for exclusive possession is the ‘ouster principle’. Which case establishes this?
Kettel v Blomfold
Batchelor v Marlow
Moncrieff v Jamieson
Hair v Gillman
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
Batchelor v Marlow
This is correct. Batchelor v Marlow sets out the ouster principle test.
Which of the following is the most accurate summary of the ‘ouster principle’?
The easement must not rob the servient owner of ultimate possession and control of the servient land.
The easement must not obstruct the servient owner’s normal use of the servient tenement.
The easement must not leave the servient owner with no reasonable use of the servient tenement.
The easement must not leave the servient owner with no reasonable use of the servient tenement.
This is correct. The ouster principle is sometimes called the reasonable user test.
Lord Scott proposed a new test for exclusive possession based on the servient owner’s ultimate possession and control. In which case was this set out?
Hair v Gillman
Kettel v Blomfold
Moncrieff v Jamieson
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
Moncrieff v Jamieson
This is correct. This Scottish case, which is persuasive authority only, introduced an alternative test.
A grants B a right of way over A’s lane. The lane is in a very poor state of repair, making it almost impossible to drive across. Which one of the following statements is correct?
A must repair the lane but can claim a proportion of the money back from B: Rance v Elvin.
A must repair the lane but as this will mean that A has to spend money, the right cannot be an easement: Regis Property v Redman.
A need not repair the lane but must allow B access to do the repairs: Jones v Pritchard.
A need not repair the lane but must allow B access to do the repairs: Jones v Pritchard.
This is correct. There is no obligation on the servient owner to carry out repairs.
Which case states that if a right is enjoyed by permission, it cannot be an easement?
Green v Ashco
Rance v Elvin
Regis Property v Redman
Copeland v Greenhalf
Grigsby v Melville
Green v Ashco
This is correct. The essence of an easement is that it is enjoyed as of right.
Which statutory provision sets out the definition of a legal easement?
Law of Property Act 1925, s 1(1)(b)
Law of Property Act 1925, s 1(2)(a)
Law of Property Act 1925, s 1(1)(a)
Law of Property Act 1925, s 1(2)(b)
Law of Property Act 1925, s 1(2)(e)
Law of Property Act 1925, s 1(2)(a)
This is correct. The section makes it clear that to be legal, an easement must be granted it reserved for the equivalent of a freehold or leasehold term.
Which statutory provision sets out the type of document which must be used to create an express legal easement?
Law of Property Act 1925, s 53(1)(a)
Law of Property Act 1925, s 52
Law of Property (Miscellaneous Provisions) Act 1989, s 1
Law of Property (Miscellaneous Provisions) Act 1989, s 2
Law of Property Act 1925, s 52
This is correct. An express legal easement must be created by deed.
What formalities must be met in order to create a legal easement of 3 years?
No formalities as the easements is created for 3 years or less
Contract
Deed only (registration is not required as the easement will be an overriding interest)
Deed + registration
Deed + registration
This is correct. LPA 1925, s 52 and LRA 2002, s 27(2)(d) respectively provide a deed must be used, which must then be substantively registered.
If a right fails as an express legal easement for lack of formalities, what is the position?
The right will be a personal licence only.
The right may be recognised as an equitable easement if it complies with Law of Property (Miscellaneous Provisions) Act 1989, s 2.
The right will automatically be recognised as an equitable easement.
The right may be recognised as an equitable easement if it complies with Law of Property Act 1925, s 53(1)(a).
The right may be recognised as an equitable easement if it complies with Law of Property (Miscellaneous Provisions) Act 1989, s 2.
This is correct. A failed legal easement may be treated as an enforceable contract to create a legal easement if the failed legal easement complies with the formalities for an estate contract.
What are the correct formalities to create an easement for an uncertain term?
It must be created by deed.
It must be created in writing, signed by the grantor only.
It must be created in writing, signed by the grantor and witnessed.
It must be created in writing, signed by both parties.
It must be created in writing, signed by the grantor only.
This is correct. These are the formalities for a basic equitable interest set out in Law of Property Act 1925, s 53(1)(a).
In which case did the claim for easements of drainage and sewerage, implied by necessity, fail?
Adaelon International Property v Merton B C
Pryce v McGuinness
Manjang v Drammeh
Sweet v Sommer
Pryce v McGuinness
This is correct. It was held that drains and sewers are not absolutely necessary for the enjoyment of land, so the claim failed.
Which is the most accurate definition of ‘necessity’ in the context of easements implied by necessity?
‘Absolute necessity’: the land cannot be used at all without the easement
‘Highly convenient’: the right is amongst the rights a landowner would normally expect to enjoy with land of this nature.
‘Necessary for the comfortable enjoyment of the land’: the land can be put to better use with the easement.
‘Absolute necessity’: the land cannot be used at all without the easement
This is correct. This is the test which was applied in Manjang v Drammeh and Pryce v McGuinness.
Sweet v Sommer softened the harsh requirements of ‘necessity’ for easements implied by necessity. Which of these statements accurately states how the case expanded the definition?
It recognised a right of drainage as being implied by necessity.
It recognised a right of way on foot as being implied by necessity, even though there was already a right of way by vehicle and the land was not inaccessible.
It recognised rights which were agreed informally but mistakenly omitted from the transfer deed as being implied by necessity.
It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible.
It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible.
This is correct. The case appears to expand the scope to allow rights of way for land which is not actually landlocked.
What was the easement claimed in Wong v Beaumont Property Trust?
A right of support
A right of parking
A right of access
A right of ventilation
A right of ventilation
This is correct. The claimant required a right to ventilation by common intention of the parties as this was essential to the operation of the premises as a restaurant.
Which one of the following statements is NOT a requirement for an easement to be implied by the common intention of the parties?
The contemplated use of the land must be very specific and not simply generic domestic or commercial use.
The premises cannot be used for the contemplated purpose without the easement.
There must be a common purpose or use for the dominant land, which is known to both parties.
The original parties must have been landlord and tenant.
The original parties must have been landlord and tenant.
This is correct. This method of implying easements does not require the original parties to be landlord and tenant. This method would also work if one party had bought part of the other’s land, instead of leasing it.
On what basis did the court find a common intention in the case of Stafford v Lee?
Mr Lee knew that Mr Stafford bought the land in order to build a house on it.
The surrounding land was shown as building plots on the transfer plan.
The area surrounding the relevant piece of land was residential use.
The land had been advertised for sale as a building plot.
The surrounding land was shown as building plots on the transfer plan.
This is correct. Although other circumstances were taken into account, the court placed particular emphasis on the transfer plan as being evidence of the common intention of the parties.
What types of easements can be implied by the common intention of the parties?
Reservations only
Grants and reservations
Grants only
Grants and reservations
This is correct. Whilst some methods of implied acquisition operate only on grants, this method is not so restricted.
What type of rights can be implied as easements under the rule in Wheeldon v Burrows?
Grants only
Reservations only
Grants and reservations
Grants only
This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land.
What is the essential pre-requisite for the operation of the rule in Wheeldon v Burrows?
There must be a quasi-easement exercised for the benefit of the land now owned by the claimant.
There must be a pre-existing landlord and tenant situation where the landlord occupies one part of the land and the tenant the other.
There must be a quasi-easement exercised for any part of the land.
There must be a pre-existing landlord and tenant situation where both parts of the land are occupied by different tenants.
There must be a quasi-easement exercised for the benefit of the land now owned by the claimant.
This is correct. There must have been a single owner who enjoyed the right now claimed as an easement, for the benefit of that part of the land which is now the dominant tenement. The benefit becomes an easement once the ownership of the land is in different hands.
One of the criteria for the rule in Wheeldon v Burrows to operate is that the right must be necessary for the reasonable enjoyment of the land. Which of these statements is the best definition of ‘necessary’ in this context?
The right is essential for the contemplated use of the land.
The right is absolutely necessary for the land to be used.
The right is necessary for the convenient and comfortable enjoyment of the land.
The right increases the value of the land.
The right enhances the use of the land.
The right is necessary for the convenient and comfortable enjoyment of the land.
This is correct. The definition of the word ‘necessity’ in this context is much more relaxed than in cases on easements implied by necessity or by common intention of the parties.
Into what type of documents may easements be implied by the rule in Wheeldon v Burrows?
Licences
Deeds or contracts
Contracts only
Deeds only
Deeds or contracts
This is correct. Wheeldon v Burrows has a wider scope than Law of Property Act 1925, s 62 in that it operates on contracts as well as deeds.
Which of the following is NOT one of the criteria which is needed for Wheeldon v Burrows to imply an easement into a document?
The right must touch and concern the dominant land.
There must be some evidence on the servient land of the enjoyment of the right.
The right must be necessary for the reasonable enjoyment of the land.
There must be a quasi-easement.
The enjoyment of the right must be regular.
The right must touch and concern the dominant land.
This is correct. This concept is part of the rules on capability which must be fulfilled before we even consider whether the right has actually been acquired.
What type of rights can be implied as easements under Law of Property Act 1925, s 62?
Grants and reservations
Grants only
Reservations only
Grants only
This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land.
Into what type of documents may easements be implied by Law of Property Act 1925, s 62?
Licences
Deeds only
Contracts only
Deeds and contracts
Deeds only
This is correct. Law of Property Act 1925, s 62 has a narrower scope than the rule in Wheeldon v Burrows in that it only operates on deeds.
Which one of the following statements is correct in stating the situations when Law of Property Act 1925, s 62 may apply to imply an easement?
The section operates in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold.
The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold.
The section operates on quasi-easements to imply an easement into a transfer deed or lease where the land is let for the first time.
The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold.
This is correct. Although case law had suggested that the section only operated where there had previously been a landlord and tenant situation, it is now settled law that the section also operates on quasi-easements to imply an easement into a transfer deed or lease where the land is let for the first time.
Which is the case which is the best authority for the proposition that Law of Property Act 1925, s 62 can operate on quasi-easements as well as situations where there is prior diversity of ownership in order to imply an easement into a document?
Sovmots v Secretary of State for the Environment
Wright v Macadam
Wood v Waddington
Platt v Crouch
Wood v Waddington
This is correct. Although Platt v Crouch reached the same decision, Wood v Waddington is a Court of Appeal authority and thus carries greater weight.
Which statutory provision passes the benefit of an existing easement to a new dominant owner, thereby enabling that person to enforce the easement?
Law of Property Act 1925, s 52
Law of Property Act 1925, s 205(ix)
Law of Property Act 1925, s 62
Law of Property Act 1925, s 78
Law of Property Act 1925, s 62
This is correct. The ordinary operation of s 62 operates as a word-saving provision, stating amongst other things that all rights privileges and easements which benefit the dominant land automatically pass on a transfer of that land.
An implied legal easement is an overriding interest: Land Registration Act 2002, Schedule 3, paragraph 3 provided that one of the conditions set out in paragraph 3 are met. Which one of the following is not a condition in paragraph 3?
The easement must be held by someone who is in actual occupation of the servient land.
The easement must be within the actual knowledge of the new owner.
The easement must have been exercised within twelve months of the transfer of the servient land.
The easement must be obvious on a reasonable inspection of the servient land.
The easement must be held by someone who is in actual occupation of the servient land.
This is correct. This provision is not listed as a condition in Schedule 3, paragraph 3. It relates to equitable interests which are held by people in actual occupation of the land in question. Although Chaudhary v Yavuz suggests obiter that an equitable easement could be an overriding interest based on actual occupation, there is no direct authority on this.
Which is the key factor about the covenantee?
The covenantee can be sued if the covenant is breached
The covenantee must observe the terms of the covenant
The covenantee can sue if the covenant is breached
The covenantee can sue if the covenant is breached
The covenantee owns the land which has the benefit of the covenant and is able to enforce the covenant if it is breached
What is a negative covenant?
A covenant which increases the value of the burdened land
A covenant which restricts what can be done on the land
A covenant which decreases the value of the benefitted land
A covenant which obliges the owner of the land to do something
A covenant which restricts what can be done on the land
A negative, or restrictive, covenant is a promise which limits what can be done on the burdened land
Which is the correct definition of ‘covenantor’?
The person who receives the benefit of the covenant and owns the dominant land
The person who enters into the covenant and owns the dominant land
The person who enters into the covenant and owns the servient land
The person who receives the benefit of the covenant and owns the servient land
The person who enters into the covenant and owns the servient land
This is correct. The covenantor is the person who enters into the covenant and is subject to the burden of the promise. That person’s land is the burdened or servient land.
What is a positive covenant?
A covenant which decreases the value of the benefitted land
A covenant which obliges the owner of the land to do something
A covenant which increases the value of the burdened land
A covenant which restricts what can be done on the land
A covenant which obliges the owner of the land to do something
This is correct. A positive covenant obliges the covenantor to “put their hand in their pocket” and do something to comply with the covenant, either spend money or energy. The covenant cannot be complied with by inaction.
What is the overall approach to be taken when interpreting covenants as positive, negative or mixed?
Look at whether the covenant is expressed to be personal between the parties.
Look carefully at the words used. If negative words are used then the covenant is restrictive.
Look at underlying substance of the covenant rather than the precise words used.
Look at underlying substance of the covenant rather than the precise words used.
The correct approach is to look beyond the words used to see the effect of the covenant in practice. It is the substance of the covenant, rather that the words used to express it, which is important.
Which case sets out the test for the ‘hand in pocket’ test?
Shepherd Homes v Sandham
Haywood v Brunswick
Powell v Hemsley
Tulk v Moxhay
Haywood v Brunswick
This case sets out the ‘hand in pocket’ test, which states that if performance of a covenant requires expenditure of money, it is a positive covenant.
Which one of the following is a positive covenant?
A covenant not to sell alcohol on the land
A covenant to maintain land in an undeveloped state
A covenant not to allow a fence to fall into disrepair
A covenant not to use the land for industrial purposes
A covenant not to allow a fence to fall into disrepair
This is a positive covenant as the substance of the covenant is to maintain the fence in a good state of repair.
Which one of the following is a restrictive covenant?
A covenant to repair and maintain a fence
A covenant to use the land for residential purposes only
A covenant to maintain a boundary wall
A covenant to build four private houses on the land
A covenant to use the land for residential purposes only
This is a restrictive covenant as it restricts the use which can be made of the land.
Which approach is correct in interpreting a covenant not to build any extension to a house without the consent of the dominant owner?
This is a restrictive covenant as the obligation not to build is wholly negative
This is a mixed covenant which is predominantly negative with a positive condition attached
This is a mixed covenant which can be split into separate positive and negative obligations
This is a positive covenant as the obligation to obtain consent is wholly positive
This is a mixed covenant which is predominantly negative with a positive condition attached
This is a predominantly negative covenant as the primary obligation is not to build on the land. The positive condition cannot stand alone but is only relevant when read alongside the main obligation.
What is the legal issue in relation to freehold covenants?
Whether the covenant is enforceable between the original parties
Whether the covenant is enforceable by and against successors in title to the original parties
Whether the covenant is positive or negative
Whether the covenant is personal or not
Whether the covenant is enforceable by and against successors in title to the original parties
The legal problem here is that there is no contractual relationship between successors in title to the original parties. We look at whether the relevant rules have been observed to enable a successor in title to the covenantee to enforce a covenant direct against a successor in title to the covenantor.
What must the successor in title to the dominant land show in order to enforce the covenant?
That they hold a freehold estate
That the burden of the covenant has passed to them
That the covenant is not personal to the original parties
That the benefit of the covenant has passed to them
That the benefit of the covenant has passed to them
A successor in title can only enforce a covenant if they can show that the benefit of the covenant has passed to them, as it is holding the benefit of the covenant which enables a party to sue.
In order for a successor covenantee to enforce a covenant against a successor covenantor, what must the successor covenantee show?
That the benefit of the covenant has passed to the successor covenantee and that the burden of the covenant has passed to the successor covenantor
That there is a contractual relationship between the successor covenantee and the successor covenantor
That the covenant was binding on the original parties
That the benefit of the covenant has passed to the successor covenantor and the burden passed to the successor covenantor
That the benefit of the covenant has passed to the successor covenantee and that the burden of the covenant has passed to the successor covenantor
In order for the covenant to be enforced by a successor covenantee, they must show that they have the benefit of the covenant to enable them to sue. In order to enforce the covenant against a successor covenantor they must show that the successor covenantor has the burden of the covenant to enable them to be sued.
What is the general rule on the burden of covenants at common law?
The burden of all covenants of whatever type passes at common law
The burden of a covenant does not pass at common law
The burden of personal covenants only passes at common law
The burden of all covenants except personal covenants passes at common law
The burden of a covenant does not pass at common law
A covenant is essentially enforceable on common law contractual principles. The general rule is therefore that the covenant is personal between the parties and the burden of the covenant cannot therefore pass to a new servient owner.
Which statutory provision states that a restrictive covenant is capable of being a proprietary right in land?
LPA 1925, S 1(3)
LPA 1925 S 1(1)(b)
LPA 1925, S 1(2)(a)
LPA 1925, S 1(1)(a)
LPA 1925, S 1(2)(c)
LPA 1925, S 1(3)
A restrictive covenant is an equitable interest in land: it is not listed in LPA 1925, s 1(1) which sets out the legal estates; nor in s 1(2) which sets out the legal interests. It is included in the residual category of s 1(3) which says that all other previously recognised interests in land (other than the ones in ss 1(1) and 1(2) are now equitable.
Which statutory provision sets out the formalities for creating a restrictive covenant?
LP(MP)A 1989, s 2
LPA 1925, s 52
LP(MP)A 1989, s 1
LPA 1925, s 53(1)(a)
LPA 1925, s 53(1)(b)
LPA 1925, s 53(1)(a)
As a restrictive covenant is an equitable interest in land, the formalities for equitable interests apply: the covenant must be created in writing and be signed by the grantor. Generally however, the covenant is created much more formally by being contained in a transfer deed.
The second element of the rule in Tulk v Moxhay is that the covenant must ‘accommodate the dominant tenement’. This has three elements. Which of the following is not an element of this test?
There must be an intention for the benefit to pass
The dominant and servient land must be proximate
The covenant must touch and concern the dominant land
The dominant owner must have retained an interest in the dominant land at the time of creation of the covenant
There must be an intention for the benefit to pass
The intention for the benefit to pass relates to the passing of the benefit and has not place in the test for passing the burden.
In the absence of express intention for the burden of a covenant to pass to the successor covenantor, which statutory provision implies such intention?
LRA 2002, s 32
LPA 1925, s 52
LPA 1925, s 198
LPA 1925, s 79
LPA 1925, s 78
LPA 1925, s 79
The successor covenantor must have notice of the covenant. In registered land, what is the effect on a purchaser for value if the notice is not registered in accordance with LRA 2002, s 32?
The covenant is binding LRA 2002, s 28
The covenant is not binding LRA 2002, s 29(1)
The covenant is binding LPA 1925, s 198
The covenant is not binding LCA 1925, s 4(6)
The covenant is not binding LRA 2002, s 29(2)
The covenant is not binding LRA 2002, s 29(1)
A covenant must be protected by a notice in the charges register LRA 2002, s 32. If this is not done, s 29(1) says that the covenant will not bind the purchaser for value.
Which case sets out the methods by which the benefit of a covenant can pass to a new owner of the dominant land in equity?
Renals v Cowlishaw
Federated Homes v Mill Lodge Properties
Ellison v Reacher
Roake v Chadha
Rogers v Hosegood
Renals v Cowlishaw
Renals v Cowlishaw identifies the three ways by which the benefit of a covenant can pass.
Which statutory provision automatically annexes the benefit of a covenant to the dominant land?
LRA 2002, s 78
LCA 1971, s 79
LPA 1925, s 78
LPA 1925, s 79
LPA 1925, s 78
S 78 operates to annex the benefit of a covenant to the dominant land as soon as the covenant is made, unless this is expressly excluded.
Where the benefit of a covenant is expressly assigned, which formalities must be complied with?
The assignment must be in writing, contain all of the terms and be signed by the seller and the buyer, LP(MP)A 1989, s 2.
The assignment must be in writing and signed by the person disposing of the benefit, LPA 1925, s53(1)(c).
The assignment must be created in writing and signed by the person creating it, LPA 1925, s53(1)(a).
The assignment must be in the form of a deed complying with LP(MP)A 1989, s 1.
The assignment must be in writing and signed by the person disposing of the benefit, LPA 1925, s53(1)(c).
This is correct. The benefit is treated as the disposition of an equitable interest in land and the formalities in LPA 1925, s 53(1)(c) must be complied with.
Which statement best describes the test for the passing of the benefit of a covenant under a building scheme?
The benefit of a restrictive covenant will pass if the parties intended to create a scheme of mutually enforceable obligations
The benefit of a restrictive covenant will pass if the elements set out in Ellison v Reacher are strictly complied with.
The benefit of any covenant will pass if the parties intended to create a scheme of mutually enforceable obligations
The benefit of any covenant will pass if the elements set out in Ellison v Reacher are strictly complied with.
The benefit of a restrictive covenant will pass if the parties intended to create a scheme of mutually enforceable obligations
The test concerns the intention of the parties, relaxing the strict requirements set out in Ellison v Reacher.
Which one of the following statements is the best definition of annexation?
The benefit of the covenant is attached permanently to the land as soon as the covenant is made.
The benefit of the covenant is passed from one owner of the benefitted land to a new owner every time the land is transferred.
Annexation occurs when the rules in Ellison v Reacher are met.
The benefit of the covenant forms part and parcel of the dominant land from the time of creation and automatically passes to a new owner of the dominant land when the land is transferred
This is the most usual method for passing the benefit of a covenant in equity
The benefit of the covenant forms part and parcel of the dominant land from the time of creation and automatically passes to a new owner of the dominant land when the land is transferred
This is the most comprehensive definition of annexation, which operates to make the benefit an integral part of the dominant land itself.
What is a prohibitory injunction?
A court order which requires the performance of a positive act. It is available as of right where a covenant has been breached.
A court order which requires the performance of a positive act. It is available as of right where a covenant has been breached.
A court order which requires a breach of covenant to cease. It is a discretionary remedy.
A court order which requires a breach of covenant to cease. It is available as of right where a covenant has been breached.
A court order which requires a breach of covenant to cease. It is a discretionary remedy.
A prohibitory injunction cannot be requested as of right. It is a court order granted at the discretion of the court which orders the person breaching the covenant to stop doing so.
Which remedy was awarded in the case of Wrotham Park Estate Co Ltd v Parkside Homes?
Equitable damages in lieu of an injunction, to reflect the reduction in value of the dominant land suffered as a result of the covenant being breached
A mandatory injunction
A prohibitory injunction
Equitable damages in lieu of an injunction, calculated to reflect the theoretical payment which the dominant owner might have expected to receive in order to release the land from the covenant.
Equitable damages in lieu of an injunction, calculated to reflect the theoretical payment which the dominant owner might have expected to receive in order to release the land from the covenant.
The court exercised its discretion and refused to grant an injunction to knock down houses built in breach of covenant. The court felt that the dominant tenement did not suffer a reduction in value as a result if the breach, and that ordering an injunction would have involved a waste of money, time and utility. If the servient owner had asked the dominant owner to release the land from the covenant, a fee would have been paid. The court awarded damages which reflected the fee which would have been paid had the servient owner formally asked for the land to be released from the covenant.
Which remedy is likely to be awarded where a servient owner is breaching a covenant to use land for residential purposes only by using it as a retail unit?
Specific performance
A prohibitory injunction
A mandatory injunction
Equitable damages
A prohibitory injunction
Where land is being used continually in breach of covenant, it is likely that the court will make an order requesting the breach to cease.
Which is the correct authority for the proposition that at common law, the burden of a freehold covenant cannot pass to a new owner?
Tulk v Moxhay
Austerberry v Oldham Corporation
Tophams v Earl of Sefton
Halsall v Brizell
Rhone v Stephens
Austerberry v Oldham Corporation
Austerberry v Oldham Corporation states that at common law, the burden of an obligation cannot pass to the successor in title of the original covenantor.
To what type of covenants does the general common law rule on passing the burden apply?
All covenants of whatever type
Restrictive covenants only
Positive covenants only
Personal covenants only
All covenants of whatever type
The general common law rule applies to all covenants of whatever nature. Generally, the burden of an obligation will not pass to a successor in title.
What remedy can be sought against the original covenantor?
Injunction and damages
Damages only
Mandatory injunction
Specific performance
Prohibitory injunction
Damages only
As the original covenantor is no longer in possession of the land, they cannot carry out the terms of an injunction or order for specific performance. The only remedy which can be awarded is damages.
Which is the most accurate statements on the effect of LPA 1925, s79?
The section implies wording into freehold covenants to pass the burden of a freehold covenant to a successor in title.
The section implies wording into freehold covenants to make the original covenantor liable for all breaches of covenant by any successor in title.
The section implies wording into freehold covenants to pass the benefit of a freehold covenant to a successor in title.
The section implies wording into freehold covenants to make the original covenantor liable for all breaches of covenant by the immediate successor in title.
The section implies wording into freehold covenants to make the original covenantor liable for all breaches of covenant by any successor in title.
The section makes the original covenantor liable for all breaches of covenant by any person who holds the land after the original covenantor has parted with it. It does not pass the burden of the covenant.
Which statement most accurately describes the effect of an indemnity covenant?
It enables the burden of a positive covenant to pass to a successor in title to the burdened land.
It enables the original covenantor to recover any damages paid out in respect of a successor’s breach. The damages can be recovered direct from the person in breach.
It enables the original covenantor to recover any damages paid out in respect of a successor’s breach. The damages can only be recovered from the original covenantor’s immediate successor in title.
It enables the original covenantor to recover any damages paid out in respect of a successor’s breach. The damages can only be recovered from the original covenantor’s immediate successor in title.
An indemnity covenant is made between the original covenantor and his successor in title and is personal to them. If the original covenantor pays out damages for a successor’s breach, the indemnity covenant enables the original covenantor to recover the outlay from the immediate successor in title, who may not be the person in breach.
Which of these statements is the most accurate in describing how Rhone v Stephens refined the rule in Halsall v Brizell?
There must be a close link between the benefit in the nature of an easement and the burden of the covenant.
The benefit in the nature of an easement and the burden of the covenant need not be explicitly inter-related as long as there is some link between the two.
A person who takes the benefit in the nature of an easement conferred in a deed must submit to any burden imposed in that deed.
The benefit in the nature of an easement and the burden of the covenant must be conferred in the same transaction.
There must be a close link between the benefit in the nature of an easement and the burden of the covenant.
Rhone v Stephens restricted the scope of Halsall v Brizell as it had been thought that the benefit and the burden simply had to be conferred in the same transaction. It made it clear that the benefit and burden had to be directly linked.
How does a covenantee ensure that a successor covenantor makes a direct covenant with the covenantee to observe covenants in the original transfer deed?
Enter a restriction on the proprietorship register of the benefitted land (LRA 2002, s 40).
Enter a restriction on the proprietorship register of the burdened land (LRA 2002, s 40).
Enter a restriction on the charges register of the benefitted land (LRA 2002, s 40).
Enter a restriction on the charges register of the burdened land (LRA 2002, s 40).
Enter a restriction on the proprietorship register of the burdened land (LRA 2002, s 40).
The restriction is placed in the proprietorship register of the burdened land and requires the consent of the covenantee to the registration of the purchase of the burdened land. This consent is given subject to the successor covenantor entering direct covenants with the covenantee.
What is the authority for the exception to the general rule that the burden of a freehold covenant does not pass at common law?
Rhone v Stephens
Halsall v Brizell
Davies v Jones
Thamesmead v Allotey
Austerberry v Oldham Corporation
Halsall v Brizell
Halsall v Brizell gives the mutual benefit and burden exception to the general rule. Its scope was refined in subsequent cases.
Which are the correct formalities for expressly assigning the benefit of a covenant at common law?
In a document headed a deed, signed by the grantor, witnessed and dated: LP(MP)A 1989, s 1.
In writing, with notice given to the covenantor: LPA 1925, s 136.
In writing containing all the terms and signed by both parties: LP(MP)A 1989 s 2.
In writing and signed by the assignor: LPA 1925, s 53(1)(c)
In writing, with notice given to the covenantor: LPA 1925, s 136.
The assignment can be made simply in writing, but notice must be given to the covenantor. This is to inform the covenantor that a new person is entitled to enforce the covenant.
Which authority sets out the requirements for implied assignment of the benefit of a covenant at common law?
P&A Swift Investments v Combined English Stores plc
Tulk v Moxhay
Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board
LPA 1925, s 78
P&A Swift Investments v Combined English Stores plc
Correct. This case sets out the 4 requirements for implied assignment of the benefit of a covenant at common law.
Which of the following covenants demonstrates express intention that the benefit should pass?
The buyer covenants with the intention of burdening land know of 31 Yew Tree Close to only use the land for residential purposes
The buyer covenants to only use the land for residential purposes
The buyer covenants on behalf of itself and its successors in title to only use the land for residential purposes
The buyer covenants with the intention of benefiting land know of 31 Yew Tree Close to only use the land for residential purposes
The buyer covenants with the intention of benefiting land know of 31 Yew Tree Close to only use the land for residential purposes
Intention of the parties is expressed here with the reference to the covenant ‘benefiting land know as…’
If there is no express intention, LPA 1925, s 78 implies an intention for the benefit to pass unless it is expressly excluded.
A sells part of its land to B. B enters into the following covenant with A in the transfer deed:
B covenants with A to wash A’s car every week
Which of the following reasons best explains why the covenant will not pass to a successor in title to A?
The covenant does not touch and concern the dominant land
There is no express assignment of the covenant
The covenantee does not hold a legal estate in the land at the time the covenant is granted
There is no express intention that the covenant should run
The covenant does not touch and concern the dominant land
A covenant to wash the covenantee’s car every week will not touch and concern the land as it has no impact on the quality, enjoyment or utility of the land. It is simply a personal privilege.
Which judicial body determines applications to discharge or modify covenants?
The High Court
The Upper Tribunal (Lands Chamber)
The Upper Chamber (Lands Tribunal)
The County Court
The Upper Tribunal (Lands Chamber)
The Upper Tribunal (Lands Chamber) has jurisdiction to hear applications of this nature.
Which statutory provision gives the tribunal the jurisdiction to discharge or modify covenants?
LPA 1925, s 84(1)
LP(MP)A 1989 s 84(1)
LRA 1925, s 84(1)
LRA 2002 s 84(1)
LPA 1925, s 84(1)
S 84(1) gives the Upper Tribunal (Lands Chamber) the power to discharge the whole or part of a covenant.
What type of covenants can be discharged or modified by the tribunal under LPA 1925, s84?
Any type of covenant
Positive covenants only
Restrictive covenants only
Personal covenants only
Restrictive covenants only
S 84(1) specifically states that the tribunal can only discharge or modify restrictive covenants.
Which these is not a statutory ground for discharging or modifying a covenant?
The covenant has become obsolete due to changes in the property or the neighbourhood.
The dominant owner will not suffer loss
The original dominant owner has sold the dominant land and cannot be located in order to execute a formal discharge
The dominant owner has expressly or impliedly agreed to discharge
The original dominant owner has sold the dominant land and cannot be located in order to execute a formal discharge
There is no provision in s84(1) LPA 1925 for an application to be made simply because the dominant owner has sold the land. In fact, the appropriate person to execute a discharge is the current dominant owner, but even so, there is no provision in the statute for this type of application.
Which statute governs the operation of trusts in relation to co-owned land?
Trustee Act 2000
Law of Property Act 1925
Trustee Act 1925
Trusts of Land and Appointment of Trustees Act 1996
Trusts of Land and Appointment of Trustees Act 1996
This is correct. This statute deals with the powers and duties of trustees and beneficiaries and the resolution of disputes relating to trusts of land.
What formalities must be complied with in order to create an express trust of land?
The declaration of trust must be in writing signed by the person creating the trust.
No formalities are necessary for the creation of a trust of land.
The declaration of trust must be evidenced in writing signed by the person creating the trust.
The declaration of trust must be created by way of a valid deed.
The declaration of trust must be evidenced in writing signed by the person creating the trust.
This is correct: Law of Property Act 1925, s 53(1)(b)
A commercial property is purchased by A and B who each contribute half of the purchase price. The legal title is registered in A’s name only. What is the position regarding A and B?
A holds the property on resulting trust for A and B
There is no trust as A is named as legal owner
A holds the property on constructive trust for A and B
A holds the property on constructive trust for B
A holds the property on resulting trust for B
A holds the property on resulting trust for A and B
This is correct. Where, in a non-domestic context, someone makes a direct contribution to the purchase price, a resulting trust is implied to reflect their contribution
Which of the following best describes the position of the legal owners were there is a trust of land?
They are entitled to an equal share of the sale proceeds
They are able to sign transfer deeds and mortgage documents
They are the registered owners in the proprietorship register
They are the absolute owners of the land
They are trustees acting in an administrative capacity
They are trustees acting in an administrative capacity
This is correct. The legal owners are named as the proprietors in the register, but have duties of trusteeship. They have the power to sign transfer deeds, contracts and mortgage documents but they hold the property on trust for the beneficiaries.
Which one of the following is essential in order for co-ownership to exist?
Unity of possession
Unity of intention
Unity of interest
Unity of time
Unity of title
Unity of possession
This is correct. Without unity of possession, there is no co-ownership.
Which of these statements is an accurate explanation of unity of time?
The co-owners’ interests must all take effect at the same time.
The co-owners’ interests must all last for the same length of time.
The co-owners must sign the transfer deed at the same time.
The co-owners must move into the property at the same time.
The co-owners’ interests must all take effect at the same time.
The co-owners’ interests must all take effect at the same time.
Which of the following is the best explanation of the concept of survivorship?
When a joint tenant dies, that person’s notional interest immediately accrues to the surviving joint tenants.
When a joint tenant dies, that person’s interest passes to the person named in their will.
When a joint tenant dies, that person’s share immediately accrues to the surviving joint tenants.
When a joint tenant dies, that person’s interest does not pass to the person named in their will
When a joint tenant dies, that person’s share passes to the person named in their will.
When a joint tenant dies, that person’s notional interest immediately accrues to the surviving joint tenants.
This is correct. Joint tenants are viewed as a single entity and therefore do not have a distinct ‘share’ of the property. Instead they have a notional interest which disappears on their death meaning the property accrues to the surviving joint tenants.
What is a tenancy in common?
A distinct but undivided share in land
An interest held by one of a number of people seen as a collective entity
A distinct and divided share in land
A distinct but undivided share in land
This is correct. A tenancy in common is a distinctly quantified share in the whole property, but the holder cannot say that any particular part is theirs: hence, ‘undivided’ share.
In which of the following circumstances will an equitable tenancy in common be presumed?
Where there have been unequal contributions to the purchase price
Where there have been equal contributions to the purchase price
Where there is wording such as ‘in equal shares’
Where the land is bought as a home
Where there is no express declaration of joint tenancy
Where there have been unequal contributions to the purchase price
This is correct. This will be presumed in non-domestic cases only. The presumption can be rebutted by an express declaration of an equitable joint tenancy.
Which statement best describes the effect of severance of an equitable joint tenancy?
It prevents survivorship from operating
It enables a co-owner to dispose of his equitable share to whoever he pleases
It changes the basis on which the equitable title will be held in future
It brings co-ownership to an end
It changes the basis on which the equitable title will be held in future
This is correct. Severance does not destroy co-ownership but simply changes the basis on which the parties hold the equitable interest in the future
What effect does making a will have on an equitable joint tenancy?
It will have no effect
It will sever the legal and equitable joint tenancies
It will sever the equitable joint tenancy
It will sever the legal joint tenancy
It will have no effect
This is correct. A will does not have any effect until after death by which time survivorship has operated.
A, B, C and D bought a house together. A and D contributed 15% of the purchase price each; B contributed 20% and C contributed 50%. They declared themselves to be equitable joint tenants. C severed the joint tenancy. What share will C now have?
C continues as legal joint tenant but has 50% of the equitable title as tenant in common
C continues as legal joint tenant but has 25% of the equitable title as tenant in common
C has 50% of both the legal and equitable titles
C has 25% of both the legal and equitable titles
C continues as legal joint tenant but has 25% of the equitable title as tenant in common
This is correct. The legal joint tenancy cannot be severed. If the equitable joint tenancy is severed the holder takes an equal share as tenant in common, irrespective of the size of their initial contribution
A and B bought a property together and paid 75% and 25% of the purchase price respectively. They declared themselves to be equitable joint tenants. A severed the joint tenancy. What is the position now in equity?
A is now a tenant in common as to 50% and B is a joint tenant as to 50%
A is now a tenant in common as to 75% and B is a joint tenant as to 25%
A and B are now tenants in common as to 50% each
A and B are now tenants in common as to 75% for A and 25% for B
A and B are now tenants in common as to 50% each
This is correct. When the joint tenancy was severed, A received an equal share irrespective of the size of A’s initial contribution: Goodman v Gallant
On whom must notice in writing be served to effect severance?
On all equitable joint tenants
On all legal and equitable owners.
On all equitable owners
On all legal and equitable joint tenants
On all equitable joint tenants
This is correct. The equitable joint tenants are the only people who will be affected by the severance and LPA 1925, s 36(2) specifically states that they must all be served.
What statutory formalities apply to a notice in writing?
The notice in must be in writing, incorporate all the relevant terms and must be signed
The notice must be made in signed writing.
The notice need not comply with any formalities
The notice must be contained in a valid deed
The notice need not comply with any formalities
This is correct. No statutory formalities are prescribed
In re Draper’s Conveyance what was the ‘writing’ which constituted notice in writing which severed the joint tenancy?
A divorce petition
A solicitor’s letter
An application to the Court of Protection
A contract for sale
A divorce petition
This is correct. The wife asked in her divorce papers for an immediate order for sale of the property and equal split of the sale proceeds. Although the main point of the ‘writing’ here was to instigate divorce proceedings, the contents were sufficient to show the requisite intention to sever the joint tenancy
According to LPA 1925, s 196(3) when is a notice in writing effectively served?
When it has been handed over personally
When it is read by the addressee
When it is delivered to the last known place of abode or business of the addressee
When it is sent by registered post and not returned marked ‘undelivered’.
When it is delivered to the last known place of abode or business of the addressee
This is correct. Severance takes effect on service, and not when/if the notice is actually read: Kinch v Bullard
In Kinch v Bullard Neuberger J made remarks about whether it is possible for the sender of the notice in writing to change their mind and ‘cancel’ the notice. What did he say?
The sender can change his mind by destroying the notice when it is delivered.
The sender cannot change his mind after the notice has been posted
The sender can inform the address at any time before or after the notice is served that he wishes to revoke it
The sender can revoke the notice if he informs the addressee before the notice is served that he wishes to revoke it.
The sender can revoke the notice if he informs the addressee before the notice is served that he wishes to revoke it.
The sender can revoke the notice if he informs the addressee before the notice is served that he wishes to revoke it.
Which one of the following is a unilateral act of partial alienation which could sever an equitable joint tenancy?
A declaration of bankruptcy
A properly served notice in writing
A sale of an equitable interest
A gift of an equitable interest
A mortgage of an equitable interest
A mortgage of an equitable interest
This is correct. A mortgage is an act of partial alienation because when the loan is repaid the owner will retain the equitable interest unencumbered.
What was the outcome of the case of Hunter v Babbage?
The joint tenancy was not severed as there was neither mutual agreement nor mutual conduct in the circumstances.
The joint tenancy was severed by mutual agreement with each party receiving a share as set out in the draft consent order as tenant in common.
The joint tenancy was severed by mutual conduct with each party receiving a 50% share as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a share as set out in the draft consent order as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a 50% share as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a 50% share as tenant in common.
This is correct. The mutual agreement was evidenced by the draft consent order in divorce proceedings. The shares were equal, based on the number of joint tenants: the rule in Goodman v Gallant prevailed over the terms of the draft consent order.
It is true to say that shares would be calculated in accordance with Goodman v Gallant based on the number of joint tenants; but you should review the case of Hunter v Babbage and compare it to the case of Gore and Snell v Carpenter.
Why did the judge in Davis v Smith conclude that the joint tenancy had been severed by mutual conduct?
The parties had already split the proceeds of surrender of a life policy
The parties had agreed to put the house on the market
The parties had negotiated on the basis that their assets including the house would be realised and divided.
The parties had engaged in prolonged negotiations
The parties had negotiated on the basis that their assets including the house would be realised and divided.
This is correct. The parties had always envisaged a split of the sale proceeds of the house and other assets and had conducted negotiations on that basis.
Why was there no severance by mutual conduct in Gore and Snell v Carpenter?
Because the ongoing negotiations had not produced a final agreement
Because the ongoing negotiations had not continued for a long enough period
Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view
Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view
This is correct. The negotiations did not have any particular aim (unlike in Davis v Smith) and there was no evidence that there was no ‘mutual’ acceptance that Mrs Carpenter would hold tenancies in common. In that situation, the parties were not ‘mutually’ conducting themselves towards the same end.
In Burgess v Rawnsley what did the court say must be present in order for the joint tenancy to be severed by mutual agreement?
An express or inferred agreement to change the basis on which co-ownership will continue
An express agreement to sell the property
An inferred agreement to end the co-ownership
A specifically enforceable contract for one party to ‘buy the other out’
An express or inferred agreement to change the basis on which co-ownership will continue
This is correct. Co-ownership does not end on severance of the joint tenancy: it continues on a different basis. An agreement to do this can be expressly stated, or (as in this case) inferred from what the parties said and did.
Severance does not result in the end of co-ownership, so there is no requirement to agree to do this in order to sever. Review Burgess v Rawnsley
Trustees have the powers of an absolute owner in relation to co-owned property: Trusts of Land and Appointment of Trustees Act 1996, s 6. What brake is put on that power within that section?
The trustees must consult the beneficiaries of full age
The trustees must act in accordance with their duty of care
The trustees must have regard to the rights of the beneficiaries
The trustees must have regard to the rights of the beneficiaries
This is correct: TLATA 1996, s 6(5)
Why is the beneficiaries’ right to be consulted, contained in TLATA 1996, s 11, not as extensive as it first seems?
Because the trustees only need to consult beneficiaries of full age and capacity
Because the trustees do not have to act on the beneficiaries’ wishes unless in the general interests of the trust
Because the trustees have an overall duty of care to the beneficiaries and must act in their best interests anyway
Because the trustees do not have to act on the beneficiaries’ wishes unless in the general interests of the trust
This is correct. The trustees need only consult so far as is practicable and only need give effect to the beneficiaries’ wishes so far as is in the general interest of the trust.
Under TLATA 1996, s 12, a beneficiary has the right to occupy property where two criteria are met. Which one of the following is not one of those criteria?
The land must be suitable for occupation by beneficiaries generally
The land must be suitable for occupation by the beneficiary
The land must be available for occupation by the beneficiary
The land must be intended for occupation by any or all of the beneficiaries
The land must be suitable for occupation by beneficiaries generally
This is correct. There is no requirement that the land must be suitable for any beneficiary (whether under this trust or another). The requirement is that the land must be suitable for the particular beneficiary who wishes to occupy
If a flat is bought by co-owners who intend to let it our as an investment, why do the equitable owners not have a right of occupation under TLATA 1996, s 12?
The trustees cannot exclude anyone who is already in occupation
The land is not suitable for occupation by them
The land is not intended to be occupied by them
The land is not intended to be occupied by them
This is correct. The purpose of the trust is to generate income by letting the flat. In those circumstances the beneficiaries do not have the right to occupy: TLATA 1996, s 12(1)
Who is entitled to make a court application in relation to co-owned land under Trusts of Land and Appointment of Trustees Act 1996, s 14?
The legal owners and any legal mortgagees only
Anyone who has an interest in the land
The legal owners only
Anyone who has or expects to have an interest in the land
The beneficial owners only
Anyone who has an interest in the land
This is correct. This means that legal trustees, beneficiaries, and secured creditors can all make applications.
Which of the factors in Trusts of Land and Appointment of Trustees Act 1996, s 15 is given the greatest weight in making a decision, according to the provisions set out in the statute?
The statute states that the interests if secured creditors carry greater weight.
None – the statute gives no indication of any factor having greater weight than the others.
The statute states that the circumstances and wishes of the beneficiaries carry greater weight.
The statute states that the interests of minors living in the property carry greater weight.
The statute states that the purpose for which the property was purchased carries greater weight.
None – the statute gives no indication of any factor having greater weight than the others.
This is correct. There is nothing in TLATA 1996, s 15 which states that any factor is to be given greater weight than others.
In which case did the judge state that the law had changed with Trusts of Land and Appointment of Trustees Act 1996 and that the interests of creditors are one of four factors to be considered, not the decisive factor?
Bank of Ireland Home Mortgages v Bell
Putnam v Taylor
Fred Perry v Genis
Mortgage Corporation v Shaire
Mortgage Corporation v Shaire
This is correct. The judge said that the law had changed with TLATA 1996 and all factors had to be weighed evenly.
In which recent case has the court explicitly said that commercial interests of lenders should take precedence over the residential security of the family?
Putnam v Taylor
Bank of Ireland Home Mortgages v Bell
Mortgage Corporation v Shaire
Fred Perry v Genis
Fred Perry v Genis
This is correct. Despite the decision in Mortgage Corporation v Shaire and the fact that TLATA 1996, s 15 does not give greater weight to any particular factor, the court prioritised the interests of creditors.
What was the purpose for which the co-owned property was held in Jones v Challenger?
Matrimonial home
Family home
Business premises for business run by both parties
Joint investment
Matrimonial home
This is correct. The property was held as a home for the couple. When they separated, the joint purpose had come to an end and an order for sale was made. Although one party wanted the purpose to continue, it is not possible unilaterally to carry out a joint purpose.
Which of the following would be evidence that parties to an occupation arrangement intend to create legal relations?
Family and friend relationship between the occupier and owner
Employer/employee relationship
Payment of market rent
Payment of market rent
If there is a degree of formality to the occupation agreement and/or a rent is paid then this would evidence an intention to create legal relations between the parties.
In which of the following scenarios would something which would otherwise be a lease be merely a licence?
The occupation is a perk of a job
The rent payable is below the market average
The occupation is an act of generosity from a family member
The parties do not enter into a written agreement
The occupation is an act of generosity from a family member
In Facchini v Bryson [1952] 1 TLR 1386, Denning LJ set out the circumstances from which a lack of intention to create legal relations can be deduced, making an arrangement simply a licence. He said that where there is a family arrangement, an act of friendship or generosity, it can be presumed that there is a lack of such intention.
Which of the following would be classed as a service occupancy?
An uncle letting their niece occupy a room in a house for zero rent
A teacher living in a house at the school in order to assist with boarding house duties
A lawyer living in a flat above the office for her own convenience
A hairdresser living in the flat above the shop as a perk of the job
A teacher living in a house at the school in order to assist with boarding house duties
This teacher is living at the school for the ‘better performance of his/her duties.’ This is similar to Norris v Checksfield [1991] 1 WLR 1241 and would be classed as a service occupancy.
