Land Flashcards
How can proprietary and property rights be enforced?
Proprietary: action in rem (i.e., can recover use/possession of land)
Property: personam (i.e., damages)
Can proprietary and/or property rights be enforced against a 3rd party?
Proprietary: Y
Property: N
How is the status of a right in land determined (i.e., proprietary or not)
- Fixed list
- Nature of right (satisfies substantive characteristics)
- Creation of right (i.e., formalities)
- Protection of right
What are the formalities for a contract for the transfer of the freehold estate?
- In writing
- Contain all expressly agreed terms
- Signed by both parties
For exchange of freehold contract, do terms need to be contained in 1 doc?
No: can be in 2 docs if contracts are to be exchanged, provided they are identical
What doc is required to transfer legal estate?
Deed
What are the requirements of a deed for the transfer of freehold estate?
- Clear on face of doc that it is intended to be a deed (i.e., labelled as such)
- Validly executed by grantor (if individual, need witness to attest)
- Delivered (i.e., sign)
What is the standard form of transfer deed
TR1
When does legal title pass for unregistered land?
On completion of deed
When does legal title pass for registered land?
On registration
By when must registration occur for unregistered land? What if this does not happen?
Within 2 months; otherwise, legal title reverts back to seller
What are 3 examples of sale contracts?
-Agreement for lease (or contract for lease)
-Option agreement
-Right of pre-emption
What is required for a binding land contract to pass as an equitable interest?
- A doc complies with s2 LPMPA (i.e., valid contract for the grant of a lease)
- Specific performance is available (i.e., C must have clean hands)
What happens if a lease is granted to a minor?
Does not create equitable lease, but a trust
Is an estate contract binding and enforceable against 3rd parties?
Proprietary right in land –> capable of this. To work, needs to be protected against 3rd parties.
If 3rd party is donee: bound by estate contract automatically
What remedies are available for breach of a valid land contract?
- Common law: damages (as of right)
- Equitable remedies: SP and PI (at court’s discretion)
What is unregistered land?
Title info (i.e., who owns the property) is contained in various old paper title deeds
What are triggering events for unregistered land?
-Transfer of freehold estate by sale, gift or court order
-Grant of lease >7 years
-1st legal mortgage of freehold or leasehold with >7 years to run
-Assignment of lease of unregistered land with >7 years to run
-Grant of a lease to take effect in possession >3 months after date of grant
What are the 3 principles of registration?
-Mirror (exception: OI)
-Curtain
-Insurance
What is contained on the property register?
-Description of the land by reference to title plan
-Type of estate (freehold/ leasehold)
-Rights benefitting land (e.g., easements)
What is contained in the proprietary register?
-Name & address of registered proprietor
-Restrictions on ability to deal with land (e.g., sale/lease/mortgage)
-Class of title (absolute/ qualified/ good/ possessory)
What are the 4 classes of title?
-Absolute: land is only bound by interests that are registered on title + OI
-Qualified: title has some defect
-Good: leaseholder, not freeholder
-Possessory: applicant is in possession of property or in receipt of rents and profit (e.g., squatters rights)
What is contained in the charges register?
Burdens on land (e.g., covenants, easements, mortgages, leases granted out of the title)
What happens if a transaction which must be registered is not registered?
Transaction is not legally recognised e.g.
-Buyer of freehold estate: not recognised as new legal owner
-T of lease >7 years: not recognised as having a legal lease
-Legal mortgage is not created
What are some key differences between leases and licenses?
-Proprietary vs personal
-Capability of enforcement against 3rd parties
-Potential of security of tenure
-In rem / in personam
-Statutory protection
What are 3 fundamental requirements for a lease (vs licence)? What are 3 further considerations?
- Certainty of term: tenancy granted for a certain duration
- Exclusive possession
- Correct formalities for a lease
Further considerations: - Do any factors exist that would defeat a lease existing?
- Do multiple occupiers have JT?
- Security of tenure: protected tenancy?
What is a fixed term?
Max duration of arrangement is known from outset; neither party can unilaterally bring lease to end earlier unless a break clause enables this
What is an express vs implied periodic term?
Express: written agreement
Implied: certain term arises by looking objectively at all relevant circumstances incl. payment and acceptance of rent on a periodic basis
What is the ‘term’ of a periodic tenancy?
Period by reference to which rent is calculated, not intervals at which it is payable
What is required for exclusive possession?
a. Exclude all others from land (incl. L)
b. Exercise sufficient control over its use (agreement may be of limited use nature)
When is exclusive possession not be present? What is the effect of a sham clause?
- Retention of key: purpose matters
- L provides services
- Sharing clause
- Right to relocate
Sham –> ignore
What are the correct formalities for a lease?
General rule: deed
>7 years: registered
<=7 years: does not need to be registered (OI)
Short lease exception: <=3 years - no formal requirements if lease
1. Takes effect in possession
2. Granted at ‘best rate’
3. Not s.t. fine/premium
Equitable lease (from defective legal lease):
1. Doc complies with s2 LPMPA
2. Specific performance is available
What 2 factors would defeat a lease existing?
a. Lack of intention to create legal relations
b. Service occupancy
When can presumption of lack of intention to create legal relations rebutted in context of family arrangement
a. Formal arrangement (e.g., agreements); and/or
b. Rent is paid
What is required of a service occupancy?
i. An employer/ employee relationship; and
ii. Employee is in occupation for ‘the better performance of their job role’
Can tenants in common have a lease?
No: if neither JT nor individual tenancy, occupants can only be individual licensees sharing with each other. However, if they can show that they each have exclusive possession of a part of the property, may have individual leases of their own part
What are the 3 requirements for security of tenure? What are the 2 further checks?
a. Tenancy (i.e., fixed or periodic)
b. Occupied by T
c. For a business (any trade, profession or employment)
Further checks:
1. Excluded tenancy?
2. Contracted out?
Security of tenure: what is an excluded tenancy?
-Agricultural, mining or service
-Fixed term <=6 months (but can become protected if T has been in occupation for >=12 months)
What is required for a fixed term lease to be contracted out?
- Warning notice in prescribed form sent by L on T, before completion
- T provides declaration in prescribed form
<14 days: statutory
>=14 days: signed - Lease contains reference to notice & declaration
Which parties can provide covenants?
-Tenant
-Landlord (e.g., quiet enjoyment, provide services, insure)
-Guarantor
What is an absolute covenant? How can L respond to any request?
-T is completely prohibited from doing something
-L could impose any condition on any consent
-L could agree a one-off waiver
What can landlord do if faced with a request concerning a fully qualified covenant?
-L must be reasonable if withholding consent: reason needs to be to do with e.g., ability to pay rent or bad references
-L does not need to prove the conclusions which led it to refuse consent were justified if reasonable person could reach such conclusions in the circumstances
How does statute intervene with alteration covenants?
-Qualified –> fully qualified if an improvement (from T’s perspective)
-(Fully) qualified: L can require as a condition of giving consent compensation for loss in value to the reversion, reinstatement of premises if reasonable (at end of lease term), payment of L’s expenses in a given consent
What is the legal doctrine of waste?
Prevents alterations which would devalue the premises
How does statute intervene with user covenants?
Qualified user covenants: L cannot demand payment for granting its consent, unless the change in use also involves a change to the structure of the property
Note: if change of use involves change to structure, L can reasonably increase rent or charge T a lump sum in return for consent
L entitled to recover its costs/expenses involved in application for consent
How does statute intervene with alienation covenants?
-Qualified –> fully qualified
-(Fully) qualified: L must give written consent within a reasonable time (unless reasonable to refuse) - approx. 28 days
-New leases: L&T can agree (automatically reasonable)
–1. Circumstances in which L may withhold consent to assignment; and
–2. Conditions s.t. which consent may be granted
What is assignment?
‘Sale’ by T of the remainder of their lease to the assignee
Is a change of proprietor (i.e., T) shown in Proprietorship Register of leasehold title
Yes, if lease is registered
What formalities are required to transfer a lease?
- Deed (given transferring a legal estate): often TR1; no short lease exception
- Registration: if lease is registered at Land Registry, deed of assignment must also be registered to update registered proprietor of the lease as the assignee
What formalities are required to sublet?
- By deed
- Registered if term > 7 years
What privity exists between original L&T?
Privity of contract: all terms can be enforced under contract law by original L&T
What privity exists between current L&T?
Privity of estate: lasts only for period in which lease is vested in T
How long does liability of original L&T last for for old leases?
Full duration of lease term (even after assignment of reversion/lease)
When did new leases begin?
1 Jan 1996
Who do retrospective provisions apply to?
Former Ts who remain liable under (1) old lease or (2) AGA
What do the retrospective provisions (s17-19) achieve?
s17: L must serve notice of potential claim within 6 months of fixed charge becoming due (fixed charge = arrears of rent, service charge or insurance premiums; excludes e.g. alteration covenants)
s18: former Ts/Gs are not liable to pay any additional amounts owing in respect of variations which have been made to the lease after assignment which they could not have anticipated at time lease was entered into (note: rent post-review = anticipated)
s19: overriding leases - if s17 applies, former T is entitled to request overriding lease from L
What are the characteristics of an overriding lease?
-Granted for a term equal to remaining term of lease in question + 3 days
-Contains same covenants as lease in question (other than those expressed to be personal)
-Must be granted within a reasonable time
Is original tenant automatically released upon assignment in new leases?
Yes, unless in breach of alienation covenant
Is original landlord automatically released upon new landlord in new tenancy?
No (although generally granted by T). Can apply to court if T refuses
Is assignee liable for covenants breached before assignment?
No: parties remain liable for breaches which occur during their period of occupation
Are benefits/burdens of L/T covenants automatically passed from original to assignee / current L?
When T assigns a lease: assignee acquires benefit and burden of all covenants in a lease
When L assigns reversionary interest: incoming L acquires benefit and burden of covenants
Exception: covenants which are expressed to be personal (i.e., do not touch and concern the land)
if outgoing T has provided an AGA on assignment, who can L sue?
- Current T + potentially obtain an equitable remedy
- Former T who provided AGA to immediate successor: damages
In the context of AGAs, what does an indemnity achieve?
Former T, if sued, may be able to recoup damages paid out on behalf of a defaulting assignee
How can assignor claim an indemnity?
- Express indemnity covenant
- In absence of (1), common law - quasi-contractual course of action
Note: not available for tenant/subtenant relationship
Why will a prudent T and L insist upon UT entering a direct covenant with L?
-T: knowing they are responsible for UT’s breaches, include a provision in sublease in which T covenants to observe and perform covenants in head lease
-L: as a condition of consent to subletting, insist on any UT entering into direct covenants –> contractual relationship –> enforceable through contract law
What options are available for breach of rent covenant (3)?
- Action for debt
- Forfeiture
- CRAR
What are limitations of action for debt?
Can only recover 6 years’ arrears
What is required for CRAR?
L must serve an enforcement notice on T giving 7 clear days’ notice that it will seize goods. Min 7 days’ rent arrears
Purely commercial properties only
What remedies are available for breach of non-rent covenant (4)?
-Injunction
-Specific performance (rare)
-Forfeiture
-Damages
What are the 6 methods for ending a lease?
- Effluxion of time
- Notice to quit
- Break clause
- Surrender
- Merger
- Forfeiture
What type of lease (fixed/periodic) can notice to quit be used for?
Periodic
What type of lease (fixed/periodic) can a break clause be used for?
Fixed term
How can a forfeiture clause be expressed?
-Legal lease: MUST have express forfeiture clause in lease
-Equitable lease: IMPLIED for non-payment of rent
How can L waive right to forfeit?
L:
1. Is aware of the acts/omissions giving rise to the forfeit; and
2. Does some unequivocal act recognising the continued existence of the lease
What is the difference between a continuing vs non-continuing breach? What is the impact of a waiver?
-Continuing breach (e.g., failure to repair): waiver only lasts until next day the breach continues, at which point L can then choose to reject the rent and forfeit the lease
-Non-continuing breach (‘once and for all’) (e.g., non-payment of rent): can only be committed once and cannot be undone (e.g., subletting without consent): waiver is permanent
When must a formal demand be used in context of forfeiture?
Breach of rent covenant: formal demand for exact amount of rent due on day when it becomes payable, upon the premises, between hours of sunrise and sunset, unless
1. Lease expressly waives the requirement
2. At least 6 months’ rent is in arrears and there are insufficient distrainable (i.e., seizable) goods on the premises to satisfy all arrears due
When does a s146 notice need to be used?
Breach of non-rent covenant
What is required in a s146 notice? What is additionally required if LPRA applies
- Specify breach complained of
- If capable of remedy: require it to be remedied within a reasonable time (approx. 3 months)
- Require lessee to make compensation in money, if L requires this
Additionally: inform T of its right to serve a counternotice within 28 days
Which breaches are potentially incapable of remedy?
-Breach of covenant not to assign or sublet
-Immoral use
-Unlawful use
When does LPRA, giving addition protection for T, apply?
Covenant to repair lease (except agricultural holding) where lease is granted for >=7 years and there are at least 3 years left to run
What happens if a s146 notice relates to internal decorative repairs?
T may apply to court and be wholly/partially relieved of liability to the extent that the court thinks the notice unreasonable
What 2 ways are there to exercise the right to forfeiture? When can they be used?
Method 1 (pure business premises): peaceable re-entry
Method 2 (any premises): obtain court order
What relief is available for forfeiture for breach of rent covenant (before court order, at/after court order, after peaceable re-entry)
- Before court order: if T pays into court all arrears and costs before trial - all further proceedings are stayed
- At/after court order: court has (equitable) discretion to grant relief; application must be made within 6 month of re-entry; relief usually given unless circumstances are exceptional
- After peaceable re-entry or <6 months’ rent in arrears: court has inherent equitable jurisdiction to grant relief if rent and L’s costs are paid + J&E to do so
What relief is available for forfeiture for breach of non-rent covenant under s146? What test will court apply?
Court may grant/refuse relief as it thinks fit, having regard to all circumstances e.g.
-How wilful and blatant breach was
-Gravity of breach
-L’s motives for wanting forfeiture
-Damage to premises
-Whether breach can be put right
Relief usually given on condition that breach is remedied and T undertakes not to breach covenant again
When is relief available under s146?
-Before court order
-Reasonable time after peaceable re-entry
Can subtenant apply for relief from forfeiture?
Yes
Which interests are capable of being legal interests?
-Mortgage
-Easements granted for a term equivalent to a freehold/leasehold estate
-Rights of entry
Which interests are inherently equitable?
-Freehold covenant
-Estate contract
-Interest in a trust of land
-Easement granted for uncertain term
What is the lower airspace?
Portion of airspace which is necessary for landowner’s ordinary use and enjoyment
When does landowner not own everything beneath the surface of its land?
- Minerals
- Treasure that landowner finds
- Coal
- Below 300m
What is the significance of fixture vs chattel?
Fixture: part of land –> can only transfer ownership by transfer of land
Chattel: can by transferred by physical delivery
What are the 2 steps for determining whether something is a fixture or chattel? Which takes priority?
- Degree of annexation test: extent to which object is fixed to land/building (i.e., could it be taken down without much trouble and damage to structure of room?)
- Purpose of annexation test: mere convenient use/enjoyment or enhance land/building? Prioritised
How are the following household objects likely to be viewed (fixture vs chattel)?
-Ornamental items
-Carpets and curtains
-Light fittings attached by screws
-Kitchen appliances, if not integrated
-Kitchen units
-Bathroom fittings (i.e., toilet, bath)
Chattels:
-Ornamental items
-Carpets and curtains
-Light fittings attached by screws
-Kitchen appliances, if not integrated
Fixtures:
-Kitchen units
-Bathroom fittings (i.e., toilet, bath)
Is an item likely to be a chattel or fixture if incorporated into building’s architectural design?
Fixture
What is required for a valid legal mortgage?
- Deed (clear on face of doc that it is intended to be a deed; validly executed; delivered)
- Registered
Equitable mortgages: what are the 2 potential origins?
- Mortgage of equitable interest
(a) Borrower holds equitable interest in the land (e.g., beneficiary in trust of land)
(b) Requirements: in writing + signed by grantor (i.e., borrower) - Defective legal mortgage
(a) Mortgage is defective: is over registered land, but not granted by valid deed or not registered
(b) Requirements: s2 (in writing + contains all agreed terms + signed by both mortgagor and mortgagee)
When is a mortgage fully discharged?
Repaid in full + all reference to it has been removed from the Charges Register at the Land Registry (DS1/DS3 for mortgage of whole/part)
What are the 4 principles of equity of redemption?
- Equitable right to redeem supplements legal right to redeem
- No postponement/ prevention of redemption
- No collateral advantage
- No unconscionable terms
The equitable right to redeem supplements the legal right to redeem. What does this mean?
Equity allows borrower to repay loan at any time after legal date for redemption has passed (equitable right to redeem arises the following day)
Will an option to purchase be void as preventing the exercise of the equitable right to redeem?
If option is granted at same time as mortgage: usually invalid (exception: mortgage and option are completely separate)
if option is granted in subsequent transaction: may be upheld if independent of the mortgage
If the lender tries to extract additional value from borrower, when may the offending term in a mortgage deed be struck out as being contrary to equity of redemption?
- Unconscionable
- In the nature of a penalty
- Repugnant to the equitable right to redeem
What is a solus tie? Will it be upheld?
An example of collateral advantage in commercial transaction
Generally upheld if ends within mortgage term
What is the test for unconscionable terms?
Has the term been imposed in a morally reprehensible manner? Consider:
1. Circumstances in which term was imposed
2. Factors (e.g., vulnerability of T)
3. Statutory regime cases (higher IR may be justified if borrower has poor credit history or lender is in financial difficulties)
What happens if a term is deemed unconscionable?
Term declared void, but remainder of agreement remains in force
What is the order of priority for legal and equitable mortgages?
Between legal mortgages: order entered on register
Between equitable mortgages: order of creation; however, if protected by entry of notice, takes priority over subsequent legal (+ equitable) mortgage
Note: lenders can modify between themselves (needs to be registered)
What 5 courses of action does a lender have? Are these available for legal or equitable mortgages?
- Debt action (L/E)
- Possession (L)
- Sale (L)
- Appoint receiver (L/E)
- Foreclosure (L/E)
Debt action: what is the limitation period
-Recovery of capital: 12 years
-Recovery of interest: 6 years
When does mortgagee acquire right to possess mortgaged property?
Immediately when mortgage deed is signed
What is the Pre-Action Protocol with respect to possession?
For residential property, possession is last resort - lender expected to explore alternative arrangements with borrower
What is s36 AJA? What does it enable the court to do?
Statutory jurisdiction to postpone: in (partly) residential context, where lender has applied for an order, court can postpone possession of property for a reasonable period, which may be s.t. payment conditions, if it appears to court that borrower is likely to be able to pay any sums due within a reasonable period
Enables court to adjourn possession proceedings or stay/postpone execution of possession order
The receiver is agent to whom?
Borrower –> owes duty to borrower to act with DD, s.t. main duty of paying off mortgage debt
Why is self-help risky?
Criminal offence to use/threaten violence for purpose of gaining entry to property –> risky unless lender is certain that property is unoccupied at the time
When does the right to sell exist?
- Express power of sale (in most mortgage docs)
- Implied/statutory power of sale: exists in absence of express power, unless excluded/ modified in mortgage deed
When does the statutory right to sell arise?
-Capital & interest repayment mortgage: as soon as 1 payment is unpaid
2. Interest-only mortgage: legal redemption date (usually approx. 6 months from start of mortgage)
What steps need to be considered for lender to exercise right to sell?
- Does it exist?
- Has right arisen?
- Is right exercisable?
When is right to sell exercisable?
- Express right: wording
- Statutory right:
(a) Notice requiring payment of whole loan has been served by lender (3 months) + borrower has defaulted (no arrears are necessary);
(b) Interest is unpaid and arrears for at least 2 months (i.e., some interest outstanding for 2 months); or
(c) Some breach of another mortgage provision
What are the lender’s duties to borrower when exercising right to sell?
Lender owes borrower a duty to take reasonable care to obtain the ‘true market value’ or ‘proper price’ for the property; take expert advice as to method; does not need to wait for upturn in market
What are the 3 main elements when thinking about easements?
a. Capability: is the right capable of being an easement
b. Acquisition: how does the easement arise?
c. Enforcement: is the easement enforceable against a new owner of the burdened land?
What are the 3 elements to a right being capable of being an easement?
- Complies with the test for duration
- Satisfies capability requirements (Ellenborough Park)
- Right is not disqualified
What are the capability requirements (Re Ellenborough Park criteria) for easements?
a. A dominant and servient tenement
b. The right accommodates the dominant tenement
c. Diversity of ownership
d. The right ‘lies in grant’
Easements: what does it mean for the right to ‘lie in grant’
i. Granted by a capable grantor to a capable grantee
ii. Capable of reasonably exact description
iii. Judicially recognised
Easements: when would a right be disqualified?
a. No exclusive possession (ouster principle and possession & control test)
b. No payment (i.e., compulsory expenditure)
c. No permission
What are the 3 ways in which easements can arise?
- Express acquisition
- Implied acquisition
- Prescription
How can a legal easement be acquired?
- Fulfils requirements for legal easement: granted/reserved for equivalent of freehold or leasehold
- Deed (clearly intended to be a deed; signed by grantor and witnessed; delivered/dated)
- Registered (benefit on Property Register of dominant land’s title; burden in Charges Register of servient land’s title)
How can an equitable easement be acquired?
Method 1. Failed legal easement: s2 (in writing; includes all expressly agreed terms; signed by both parties)
Method 2. Inherently equitable easement: in writing and signed by grantor
What are the 4 ways in which an easement can be acquired impliedly? Are these applicable for reservations and/or grants?
- Necessity (R/G)
- Common intention (R/G)
- Wheeldon v Burrows (G)
- s62 (G)
How can legal/equitable easements be properly protected?
Legal express: substantively registered as part as creation
Legal implied: overriding if Sch.3 conditions are met (easement is within actual knowledge of new owner; obvious on a reasonably careful inspection of servient land; or has been exercised within 1 year before transfer of servient land)
Equitable: protected by s32 Notice to bind a purchaser for valuable consideration
When will prescription succeed
Right used for >=20 years by a freeholder + uninterrupted enjoyment for 20 year period if right has been exercised reasonably regularly
a. Without force
b. Without secrecy
3. Without permission
Prescription: what would constitute force?
Ignoring protests of servient land owner or removing signs/notices
Prescription: what is required for right to be used without secrecy?
A reasonable person in the position of servient landowner must have reasonable opportunity to discover the right
Prescription: when would the user have permission?
Dominant landowner makes a payment to the servient landowner
What are the Ellenborough Park criteria?
(a) Dominant and servient tenement
(b) Right must accommodate the dominant tenement
(c) There must be no common ownership of the 2 tenements
(d) The right must lie in grant: it must be capable of forming the subject matter of the deed
What does ‘the right must accommodate the dominant tenement’ mean?
Does the right offer some direct benefit on dominant tenement? Right should affect nature, quality, use or value of dominant land, and not be expressly personal
Also, dominant and servient land must be sufficiently proximate to each other
What question should be asked where a right appears to benefit a business as well as the land?
Is the business a necessary incident to the use of land, or completely unconnected?
Easements: when is a right judicially recognised?
(i) Previously recognised as an easement (e.g., right of way, drainage, of support, to use sporting and leisure facilities, to use land for recreational purposes)
(ii) Beyond (i), but NOT negative
Easements: what are the 3 disqualifying factors?
- No exclusive possession of the servient tenement
- Additional (unavoidable) expenditure by servient owner
- Dependent on permission by servient owner
What are the 2 tests to determine whether there is exclusive possession of the servient tenement?
Test 1: reasonable use test (or ‘ouster principle’) - is servient land owner left with reasonable use of the land? (Binding law)
Test 2: possession and control test - does the servient owner retain ultimate possession and control of servient land s.t. the reasonable exercise of the right
Which of the two exclusive possession tests favours person claiming the easement?
Test 2 (possession and control)
Easements: is servient tenement owner obliged to carry out repairs or maintenance?
No. Must allow dominant owner onto servient land to carry out any repairs at dominant owner’s expense
Easements: Which of the implied acquisition methods are available for grants and/or reservations?
Necessity and common intention: G&R
Wheeldon and s62: G only
Easements: Which of the implied acquisition methods are available for legal and/or equitable easements?
Necessity, common intention, Wheeldon: legal or equitable
s62: legal only
What is required for an implied acquisition via necessity?
Existence of easement is essential for any use of dominant tenement to be made (insufficient that the right merely adds to enjoyment of dominant tenement)
Necessity: give an example of an easement which would be implied via necessity, and one that would not
Would: right of way to otherwise landlocked land (incl. land which is not accessible by vehicle)
Would not: easement for drainage, sewage or electricity
How does an implied acquisition by common intention arise? (2 methods + examples)
Method 1: land has been sold/leased to another for a particular purpose (which is known by both parties), and that purpose cannot be fulfilled without the easement sought (no other possible interpretation of facts) (e.g., covenant in lease to only use building as a restaurant, which would require H&S compliance, and ventilation is needed to comply with regulations)
Method 2: necessary for enjoyment of an expressly granted easement (e.g., a right to park in a parking space usually also requires a right of way to enable the holder of the right to reach the space)
How does an implied acquisition using Wheeldon v Burrows arise (5 conditions)
- Land enjoyed as a quasi-easement by seller/L before land was divided
- Quasi-easement was continuous and apparent (e.g., track or drain cover)
- Quasi-easement is necessary for the reasonable enjoyment of dominant land (fairly easy to satisfy)
- Quasi-easement is in use by common owner at date of transfer/lease of dominant land
- If dealing with sale/lease of part: immediately prior to transfer/lease, there was a common owner and occupier of the whole
What are the two routes for an implied acquisition using s62?
Route A:
1a. Prior diversity of occupation of dominant and servient lands
2a. An informal permission/licence was granted to the occupier of the dominant tenement to use the servient land in some way
Route B:
1b. No prior diversity of occupation of dominant and servient lands
2b. Right (i.e., quasi-easement) was continuous and apparent
- There was a conveyance of the dominant tenement
Are express legal easements enforceable against new servient owner? (Both registered and unregistered land)
-Registered land: always enforceable (as must be substantively registered)
-Unregistered land: always enforceable (‘legal interests bind the world’)
Are implied legal easements enforceable against new servient owner? (Both registered and unregistered land)
-Registered land: OI if easement is within actual knowledge of owner, is obvious on a reasonably careful inspection of servient land, or has been exercised within 1 year before transfer of servient land
-Unregistered land: always enforceable (‘legal interests bind the world’)
Are express/implied equitable easements enforceable against new servient owner? (Both registered and unregistered land)
-Registered land: if notice is entered in charges register of servient land, binding on a new owner for valuable consideration (+ volunteer is always bound)
-Unregistered land: if Land Charge is entered, binding on a new owner for valuable consideration (+ volunteer is always bound)
What is a Land Charge entered against?
Name of landowner/grantor (as in title deeds), not land itself, at time right is granted/created (where possible, search should be made against all previous estate owners from 1926)
Does benefit of an easement pass with transfer of land if dominant owner changes hands?
Yes (regardless of whether it is legal/equitable and land is registered/unregistered)
What are the 4 requirements for the burden of a freehold covenant to run using the rules of equity?
- Restrictive covenant
- Covenant accommodates the dominant tenement
- Intention for burden of covenant to run
- Notice of the covenant
What are the 2 requirements for the benefit of a freehold covenant to run using the rules of equity?
- Covenant touches and concerns the dominant land
- Benefit passes by annexation, assignment or building scheme
What are the 3 requirements for a covenant to accommodate the dominant tenement?
i. Covenantee and successor covenantee hold an interest in land at the time of creation and enforcement
ii. Covenant touches and concerns the land
iii. Sufficient proximity between the dominant and servient land
What does it mean for a covenant to touch and concern the land (3 aspects)?
It must have some direct beneficial impact on dominant land:
a. Only benefit dominant owner whilst they own dominant land
b. Affect the nature, quality, use or value of dominant land
c. Not expressly personal
How can intention for burden of covenant to run occur?
i. Express: covenant wording makes it clear that successors are to be bound
ii. Implied: exists unless contrary intention is expressed
What is required for notice of the covenant (for both registered and unregistered land)? What happens if not done?
Registered: notice in charges register of servient title
Unregistered: Class D(ii) Land Charge
If not done, purchaser for value of burdened land is not bound
What are the 3 ways in which the benefit of a covenant can pass (using equitable rules) by a method in Renals?
(i) Annexation (express/ statutory, if not expressly excluded): benefit becomes permanent part of dominant land
(ii) Assignment: in writing + signed by person transferring the benefit
(iii) Building scheme
What are the 4 conditions for benefit of covenant to pass using equitable rules via building scheme?
- All buyers buy from the same seller
- Seller divided the estate into plots
- The covenants were introduced to benefit all plots
- Each buyer buys on the understanding that the covenants are intended to benefit all plots
What is the general rule re passing the benefit of covenant at common law?
Burden does not pass to successor –> continuing liability for original covenantor (damages; consider indemnity covenant)
How would an indemnity covenant work as a method for original covenantor to recover outlay if its successor breaches the covenant?
As part of sales process, original covenantor (seller) requires its successor (buyer) to enter an indemnity covenant promising to comply with the covenant and to indemnify (reimburse) it for any loss incurred as a result of a breach. Should then have a chain of indemnities. Method of indirect enforcement
What is the (limited) exception to the general rule that the burden does not pass to the successor under common law?
Doctrine of mutual benefit and burden:
1. Clear link between burden and benefit
2. Genuine choice as to whether to take the benefit
3. Benefit & burden conferred in same transaction
What are the 2 ways in which the benefit of a covenant under common law rules can be passed?
Method 1: express assignment - in writing + express notice of assignment given to covenantor
Method 2: implied assignment
What is required for implied assignment of benefit of covenant under common law rules (3 elements)?
- Covenant touches and concerns (dominant) land
- There was an intention (express or implied, unless expressly excluded) that the benefit should run with the dominant land
- Original and successor covenantees had/have legal estate in dominant land
Who is the covenantee? Who is the covenantor?
Covenantee: owner of dominant land (i.e., benefits)
Covenantor: owner of servient land (i.e., burdened)
When can successor covenantee enforce covenant directly against successor covenantor who is in breach?
Benefit of covenant has passed to it + burden has passed to successor covenantor
What remedies are available to enforce breach of covenant against current owner?
Equitable remedies (as a restrictive covenant is an equitable interest in the land): most commonly, prohibitory or mandatory injunction
How long do restrictive covenants last for, once validly granted?
Forever (unless discharged or modified)
What are the 4 ways in which covenants can be discharged / modified / released?
- Merger
- Express release/modification
- Implied release/ modification
- Statutory discharge/ modification (restrictive covenant)
How does a merger impact a covenant?
Automatically discharged if same person becomes owner of both dominant and servient land
What is required to expressly release/ modify a covenant?
Formal release of covenant, made by deed
How can a dominant owner impliedly agree to discharge a covenant?
Do nothing when covenant is being breached openly?
What body has power to discharge/ modify a restrictive covenant? What may it require?
Land Chamber
May require compensation to be paid to owners of dominant land
Under what grounds may Land Chamber discharge/modify a restrictive covenant?
-it has become obsolete due to changes of character of property/ neighbourhood
-its continued existence impedes the reasonable use of the land for public/ private purposes (i.e., confers no practical value or is contrary to public interest + financial compensation is adequate for dominant owner)
-Dominant owners expressly/impliedly agree to discharge
-Dominant owners will not suffer injury (from discharge)
What are the 5 legal interests? What happens if they are not registered?
-Transfer of registered freehold/leasehold
-Grant of lease for >7 years
-Express grant/ reservation of an easement (on property/ charges register of dominant/ burdened land)
-Grant of a legal charge (on charges register of mortgaged land)
-Grant of L’s right of entry
Not registered –> does not bind for valuable consideration (unless OI)
Which equitable interests can be protected by s32 notice? (5)
-Restrictive covenants affecting freehold land
-Estate contracts
-Equitable easements
-Rights arising under estoppel claims
-Legal leases of 3-7 years (although still binding as OI)
Which equitable interest is protected by a s40 restriction?
Trust interests
What are the 3 categories of overriding interests?
- Legal leases for <=7 years
- Equitable interests held by people in actual occupation (s.t. exceptions)
- Implied legal easements and profits a prendre
What is required / considered for OI via actual occupation
Contributed financially + living in it. For latter, consider:
-Objective matters: degree of permanence and continuity of presence, length of absence, nature of property
-Subjective intentions
-Wishes of persons who hold interest
-Personal circumstances
What are 2 exceptions to actual occupation (for OI)?
- Inquiry of person with interest made pre-disposition + failed to reasonably disclose the right
- Unobvious occupation + person to whom disposition is made lacks actual knowledge of interest at time
What is required for an implied legal easement to be binding as an OI?
a. New owner knew about it;
b. New owner did not know about it, but it was obvious on a reasonable inspection of the land; or
c. It has been exercised within 12 months immediately pre-disposition (likely to be satisfied)
What is the basic rule of priority and what is the exception to this? What is the effect?
Basic rule: an interest takes priority over later dispositions
Exception: a disposition of a registered estate for valuable consideration
Effect: a registrable disposition of a registered estate, made for valuable consideration, will take priority over any pre-existing rights in the land except those which have been protected on the register or OI
Does overreaching apply to registered and/or unregistered land?
Both
What is required for overreaching?
Buyer/lender pays capital money (i.e., purchase/loan money) to >=2 legal owners/trustees
What is the effect of overreaching?
Detaches B’s equitable interest from the land –> land is no longer encumbered by B’s interest
What does ‘legal rights bind the whole world’ mean?
Legal interests (except a puisne mortgage) - can enforce against anyone who came to own/occupy the land (no separate registration requirement)
What are the categories of Land Charges?
-C(I): puisne mortgage
-C(IV): estate contract
-D(II): restrictive covenant post-1926
-D(II): equitable easement post-1926
-F: spouse’s matrimonial right of occupation
Which equitable interests cannot be protected via Land Charge? What are these subject to?
-Interests in a trust of land
-Equitable easements and restrictive covenants pre-1926
Subject to doctrine of notice
Types of notice
-Actual: purchaser actually knows of equitable interest
-Imputed: notice (should have been) received by buyer’s agent
-Constructive: purchaser fails to pursue a line of enquiry which ought reasonably to have been made
What is the max number of legal owners/trustees? What happens if land is transferred to more people?
-4
-1st 4 names who are sui juris will be legal title holders
What formalities must be used to set up an express trust of land?
- Evidenced in writing; and
- Signed by declarant(s)
When may an implied trust arise (in the context of land)?
- Resulting trust: in non-domestic context, where someone makes a direct contribution to the purchase price
- Constructive trust: unconscionable for legal owner of land to deny interest of another person
What is required for a joint tenancy?
4 unities
What happens on death of right of survivorship applies?
Notional interest of deceased JT accrues to surviving JTs
Which unity is required for TiC?
Unity of possession
What are key characteristics of TiC?
-Not a single entity
-Each T has a ‘distinct but undivided share’ in the land
-Share can be proportionate to contribution
-Share passes with will/intestacy rules
How can words indicate TiC?
-Express declaration that owners hold as TiC (prevails, even if 4 unities are present)
-Words indicating that parties intend to have ‘shares’ (e.g., ‘in equal shares’ or ‘equally’)
If there are no specific words, when is a TiC rebuttably presumed?
a. Land is a business asset; and/or
b. The purchase price of a non-domestic property has been paid in unequal shares
What is unity of possession?
Each co-owner is as much entitled to possession of any part of the land as the others (no co-owner can be excluded from any part of the land)
What is unity of interest?
Interest in land held by each co-owner is of same nature and duration; if one occupier left, remaining occupier(s) would be liable for whole rent payment
What is unity of title?
All co-owners acquire their title from the same doc (or separate, identical, interdependent docs)
What is unity of time?
Interest of each co-owner vest (i.e., take effect) at the same time (i.e., on same day)
What is the effect of severence
-Equitable interest of JT is converted into TiC
-Severing JT will hold an ‘equal share’, determined by number of JTs (regardless of their initial contribution) as TiC
What are the two main ways in which JT can be severed?
- Notice in writing
- ‘Other acts or things’
What is required for severance by notice in writing (3 things)
- In writing (but need not be signed nor dated)
- Demonstrates an immediate irrevocable intention to sever
- Addressed to all JTs and left at last known address or place of business by hand delivery or post (but need not be read)
Severance by notice in writing: when is notice deemed served?
When it has been delivered (or, if made by registered post and not returned undelivered, at time a registered item would, in the ordinary course of events, be delivered)
Severance by notice in writing: who needs to be served?
JTs (and not any TiCs)
What are the 3 ways in which JT can be severed by ‘other acts or things’?
- Unilateral act by one JT (total, partial or involuntary alienation)
- Mutual agreement
- Mutual conduct
Severance: what is meant by a unilateral act?
No requirement for other JT(s) to know/consent to act for severance to take place
What is total alienation?
Permanent disposal of an interest (sale or gift) by severing owner (e.g., one JT buys out another)
What is partial alienation?
Temporary disposal of interest (mortgage or lease) by severing owner (not mortgage/charge over whole property as security for a loan)
What is involuntary alienation?
JT declared bankrupt
How does severance by mutual agreement operate?
All JTs agree (expressly/impliedly) to change basis on which to hold equitable title
-Agreement does not have to be enforceable; parties can change their mind
-Severance occurs when parties agree
How does severance by mutual conduct operate?
-No mutual agreement
-Parties have embarked on a course of dealing and behaved in such a way over a period of time that demonstrates that they are treating their shares in the property as separate
When could negotiations constitute severance by mutual conduct?
-All JTs involved
-Clear that both parties recognise they have separate shares (e.g., ‘split’)
Who can apply to court under s14 TLATA to dissolve co-ownership?
Anyone with an interest in the land e.g.
-Trustees
-Beneficiaries
-Mortgagees of legal/equitable title
-Trustees in bankruptcy
-People holding charging orders
What factors will court consider regarding dissolving co-ownership?
a. Purpose for which property s.t. trust is held (i.e., purpose for which property was bought, and is that purpose still continuing)
b. Welfare of minor who (might reasonably be expected to) occupy (consider age)
c. Interests of secured creditor of beneficiary (only give more focus if owed outstanding amounts)
d. Circumstances and wishes of (majority of) full-age beneficiaries
What court order may be made under s14/15 TLATA?
-Sale (may be postponed)
-As to who occupies
-As to nature/extent of B’s interest
When is an order likely to be postponed under TLATA?
-If not in critical state - for 6 months/year
What is the effect of a court order under TLATA?
Overreaching of other co-owner’s legal interest (registered/ unregistered land)
