Land Flashcards
What are ‘incorporeal hereditaments’?
‘incorporeal hereditaments’ are intangibles such as rights, easements, or rents
A man recently purchased a house. He did not realise at the time of the purchase that the house is near a major airport and he objects to the number of commercial aeroplanes flying overhead. The man believes that he can bring a claim for trespass of his airspace against the company that owns the airport.
Can the man successfully bring such a claim?
The man cannot successfully bring a claim in trespass because no action shall lie in respect of trespass by reason of the flight of an aircraft over the property. In theory, land extends ‘to the heavens’ and to the centre of the earth, which means that infringing on another’s airspace is a trespass to land. However, in practice, such rights are limited. A landowner is allowed rights in airspace only to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it. Thus, a landowner cannot object to the passage of aircraft over his land during normal flight, as is the case here.
A farmer offers to sell the right that he has to remove timber from a neighbouring woodland to his friend. The farmer’s friend is concerned because the farmer does not own the land from which he removes the timber.
Which term best describes the likely interest that the farmer is trying to sell?
The farmer is likely to have and is trying to sell a profit à prendre in gross. A profit à prendre is an interest in land enabling someone to take something from the land of another (for example, timber or fish). A profit à prendre in gross is a profit that can be bought and sold independently and it is not attached to the ownership of any piece of land. Here, the farmer’s right to remove the timber is not attached to any piece of land, so it is likely to be a profit à prendre in gross.
What is the difference between a profit à prendre and a profit à prendre appurtenant?
A profit à prendre is a personal right to take resources from another’s land, independent of owning nearby land. A profit à prendre appurtenant is tied to a specific piece of land (the dominant tenement) and transfers with ownership of that land.
A couple in a civil partnership are splitting up. One party sees a solicitor for some legal advice because they are worried that their partner wants them to leave the property which the couple have lived in as their home. The solicitor discovers that the title to the property is unregistered and that their client is not a legal owner of the property.
What advice will the solicitor give to their client in this circumstance?
The solicitor should register a Class F land charge in favour of their client against the name of the legal owner of the property. In the unregistered land system, a non-owning spouse or civil partner may protect their interest in the matrimonial home by registering a land charge (specifically, a Class F charge) against the full name of owner of the property.
When is possessory title granted by HMLR?
If unregistered land owner has lost their title deeds. Possessory title is the class of title which may be awarded by HMLR if the application for title is based on factual possession of the land rather than documentary evidence.
A landlord decides to let a property to a tenant. The landlord and tenant enter into a lease which states that it shall begin immediately and expire ‘when the Eurozone debt crisis shall be deemed to be at an end’. The tenant asks her solicitor to check the lease before the tenant moves into the property.
What is the likely legal effect of this lease?
The lease is void for uncertainty and creates no tenancy. A lease must make it clear at the date of the agreement when the term of the tenancy will begin and end. If the parties agree on a term which is uncertain (for example, where termination of the lease depends on external circumstances over which the parties have no control, such as the end of the Eurozone debt crisis), the lease will be void for uncertainty.
What is a rent charge?
Arise in relation freehold estates.
Rent charge is a charge in land requiring the land owner to make a periodic payments to the charge holder.
What is a profit a prendre?
Interest in land allowing a person to take something from that land.
Profit a prendre in gross = can exist independently of land/not attached to ownership land itself * can be SUBSTANTIVELY registered on HMLR with own title no.
Profit a prendre appurtenant = attached to land ownership itself * cannot be substantively registered
When dealing with a question on easements and whether one can be created by deed in relation to a sale on part, what must you watch out for?
WHEN the deed is created - if the scenario is referring to a time before the date of the conveyance then the easement cannot be created because there would not be separate ownership of the dominant / servant tenement.
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