Land Flashcards
What type of right is an easement?
Proprietary
Who is the dominant tenement?
The land getting a benefit in an easement
Who is the servient tenement?
The land getting the burden in an easement
Can easements be a legal interest
Yes
How long will a right of drainage be granted if granted in a 5 year lease?
For the term of that lease
How long will a right of way granted when freehold land is sold be granted?
Forever
When can an easement only be equitable?
When it is not granted for the equivalent of a freehold or leasehold estate term
What is a positive easement?
Allows the owner of dominant land to use the servient land in a particular way
What is a negative easement?
Prevents the servient landowner from doing something on their land by giving the dominant land owner the right to receive something
What are the 3 possible/recognised negative easements?
Right to light
Right to air
Right of support (e.g., from a shared wall)
What 5 types of rights are commonly confused with easements?
Quasi easements
Public rights
Licenses
Profits a prendre
Restrictive covenants
What is a quasi-easement?
Potential easements, things that could become easement if the land was ever divided (e.g., land owners using pathways on their own land)
What are public rights and how are they different from easements?
Unlike easements, who are for the dominant land, a public right can be exercised by the public
What does a profit a prendre mean and how is different from an easement?
In a profit a prendre, you can take things from the land to sell like fish. But in an easement you can’t.
What is a grant in terms of easements?
When a landowner who severs their land, gives the new occupier an easement over the land which they have retained
What is a reservation in the context of easements?
When a landowner severs their land, and retains a right over the sold/leased portion
What does it mean to derogate from the grant in the context of easements
If a landowner does a reservation for their easement, it is construed strictly and they cannot then widen it later
Where are most express easements created?
In writing in the transfer deed or lease
Can easements be created as a part of a separate deal then a sale etc
Yes
What is the rationale between why an easement can be impliedly created legally?
It is ‘written in’ to the original document it was ‘omitted’ from
What is the general criteria for an easement to arise from prescription?
Long use
At least 20 years
Continuous
As of right (e.g., no permission or force)
Are easements by prescription legal or equitable?
Legal
What are the 3 types of prescription?
Prescription at common law
Prescription under the doctrine of Lost Modern Grant
Prescription Act
When will prescription succeed under the prescription act 1832?
If user can prove uninterrupted enjoyment for the 20 year period
What = an interruption for the purposes of the prescription act?
No use for 1 year or more
What 5 questions must you answer yes to, in order to determine that a right has been acquired by prescription?
Has the right been used for at least 20 years by a freeholder against a freeholder?
Has the right been exercised regularly?
Without force?
Without secrecy?
Without permission?
Can a prescriptive right be created between a freeholder and a leaseholder?
No
Can rights to light be infringed if there is no defined aperture it is blocking?
No
What 3 things must you check to determine whether something is an easement or a license?
Is it capable of being an easement in principle
Is the right prevented from being an easement by a disqualifying factor?
Has the right been acquired as an easement?
How do you determine whether the right is capable of being an easement?
Tests in Ellenborough Park
What are the 2 factors which could disqualify a right from being an easement?
Additional compulsory expenditure by the servient owner
Use which amounts to exclusive possession or permission
In which 3 ways can a right be acquired as an easement?
By complying with the statutory formalities for an express grant or reservation
By being acquired impliedly by one of the recognised methods
By being acquired by presription
What are the 4 tests that must be met to determine whether a right is capable of being an easement under Ellenborough Park?
- Must be a dominant and servient tenement
- Right must accomodate the dominant tenement
- There must be diversity of ownership
- The right must lie in grant
What are useful questions to ask when determining whether a right accommodates the dominant tenement?
Does the right benefit any owner of the land?
Does the right cease to be of use once the dominant owner has parted with the land
Does the right make the dominant land a better or more convenient property?
Does the right add value or amenity to the dominant land?
What question do you ask, when determining whether a right benefits the land itself or a business run from that land?
Is the business a necessary incident to the use of the land or a completely unconnected business?
Can a right accommodate a dominant tenement if it is far away?
No, must be sufficiently proximal
What would happen to an easement if previously severed land was merged?
The easement would be extinguished
What are the 3 criteria to satisfy whether the right (potential easement) lies in grant?
Was it granted by a capable grantor to a capable grantee?
Is it capable of reasonably exact description?
Is it judicially recognised?
What does it mean to be a capable grantor/grantee?
18+ and own the legal estate
What are examples of rights that have been judicially recognised as easements?
Rights of way
Rights of drainage
Right of support
Right to use sporting and leisure facilities
Right to use land for recreation
Right of storage
Right to park
What do you have to satisfy after determining that the right is capable of being an easement under Ellenborough?
Disqualifying factors
What are the 3 disqualifying factors for something being capable of being an easement for Ellenborough?
Right must not amount to exclusive possession of the servient tenement
Right must not involve additional, unavoidable expenditure by the owner
Right must not depend on permission
What are the 2 tests which amount to exclusive possession?
Ouster principle
Possession and control
What is the easement disqualifying factor ‘ouster’ principle?
No reasonable use of the land is left because of the ‘easement’
What is the possession and control test?
Does the servient owner retain ultimate possession and control of the servient land subject to reasonable exercise of the right?
Is the ouster principle binding law?
Yes
Is the possession and control test binding law?
No – Scotland
Are the courts generally more favourable towards the person claiming the easement or rebutting?
Claiming
If there is a question about rights to store and park, and the servient landowner retains control of the space and is theoretically able to do anything with it… who would the courts favour?
The person claiming the easement should not be disqualified
Is a servient tenenment owner obliged to carry out repairs or maintenance of the easement?
No
Must the servient tenement allow the dominant owner to carry out repairs etc?
Yes
If someone moves or withholds using the easement on request, can they still be using the easement as of right?
No
Can an easement granted potentially forever be legal?
Yes
Can an easement granted or reserved for a set period be legal?
Yes
Can an easement granted for a period that is not forever but is also not for a set period be legal?
No
To be a deed, what formalities must a document comply with?
Clearly intended to be a deed
Signed by a grantor and witnessed
Delivered/date
Does an express legal easement need to be created by deed?
Yes
What do you need to do to finish creating a legal easement over registered land?
Register the land
Where is an easement noted on the register?
The dominant lands title and burden is noted in the charges register of the servient lands title
What happens if formalities for a legal easement are not met?
It could be recognised as an equitable easement
What is an inherently equitable easement?
One that wasn’t granted or reserved for a freehold or leasehold term or was an uncertain term
What are the minimum formalities for an equitable easement?
In writing
Signed by the grantor
What can failed legal easements be determined as?
Estate contracts
What is the effect of an estate contract for an easement?
A contract agreeing to create a legal easement
To create an estate contract for legal easements, what are the minimum formalities that must have been complied with?
In writing
Signed by both parties
Includes all expressly agreed terms
Do you have to register legal easements for less than 7 years?
Yes
What are the 4 methods of implied acquisition for an easement?
Necessity
Common intention
Wheeldon v Burrows Rule
LPA 1925 s62
What does an implied legal easement technically do?
Imply the easement into a transfer deed or a legal lease
What does an implied equitable easement do?
Implies the easement into a contract or an equitable lease
Where does an implied easement take its status from?
The document it was implied into
How wide is the scope of implied easement by necessity?
Very narrow, existence must be essential in order that any use of the dominant tenement can be made
What is the type of easement that can be implied by necessity?
Right of way to otherwise landlocked land
Can rights to drainage, sewerage and electricity be implied by necessity?
No
When is an implied easement by common intention able to be formed?
Where land has been sold/leased for a particular purpose and that purpose cannot be fulfilled without the easement sought
Is a general intention to how the property should be used enough to create an implied easement by common intention?
No
If there is an easement for a parking space, will that show sufficient common intention to use the road leading to it as well?
Yes
What are the 3 criteria to fulfil a common intention easement?
Dominant land must be sold or leased for a specific purpose
Purpose must be known to both parties
Easement claimed must be essential to achieve the common purpose
Would a plot of land sold as a building plot show a common intention easement for drains, sewer etc?
Yes
Is it easier to demonstrate common intention if you are the granting or reserving power?
If the power was granted
Does Wheeldon v Burrows apply to grants or reservations?
Only grants
What is the effect of Wheeldon v Burrows?
Quasi-easements will be implied into full easements
What are the 5 requirements in Wheeldon v Burrows?
Only applies where right would be a grant
Continuous and apparent
Quasi-easement:
Necessary for reasonable enjoyment of dominant land
In use by the common owner at the date of the transfer or lease of the dominant land
Does Wheeldon v Burrows apply when selling the whole of a piece of land?
No, can only happen on division of land
How does the requirement ‘necessary for the reasonable use of the land’ get met for Wheeldon?
If the right enhances the land in some way
Can you exclude Wheeldon v Burrows in a contract or lease?
Yes
Can easements be implied by the LPA 1925 s62 for grants or reservations only?
Grants
What type of document will LPA 1925 s62 imply an easement into?
A conveyance (ie a deed, transfer of land)
What is the effect of LPA 1925 s62?
When somebody buys freehold land or leases in land, the buyer or tenant will receive the benefit of all existing easements whether they have been expressly or impliedly granted
What is the upgrade effect?
Informal rights get upgraded into a full legal easement when there is a new conveyance
What are the requirements for the upgrade effect to apply?
There would have been a grant to the claimant
There was prior diversity of occupation of the dominant and servient land
An informal permission or license was granted to the occupier of the dominant tenement to use the servient land in some way
There must have been a conveyance
Can you exclude LPA 1925 s 62 in a contract?
Yes
What is the recent development of in terms of applications of LPA 1925 s62
Now, the requirement for prior diversity of occupation of the dominant and servient land is not necessary where the right is continious and apparent
What does the recent development in terms of wider scope for s 62 LPA do?
It can apply in Wheeldon v Burrows circumstances where the land has only recently been divided and the claimant doesn’t have to show ‘necessary to the reasonable use of the land’ criteria
Why has LPA 1925 s62 not made Wheeldon v Burrows obsolete?
Cause it only applies on a conveyance but Wheeldon v Burrows can imply an easement into a contract
Will benefit pass with the land for an equitable easement?
Yes
Where does the benefit of an easement appear on the register?
The property register
What happens to a legal easement when land is registered for the first time?
The express legal interest will be an interest overriding the first registration of the servient land and will become noted on the charges register
Under what maxim are express legal easements binding against new servient owners?
Legal interests bind the world
What 3 criteria need to be met for an implied legal easement to be an overriding interest on registered land?
- Easement is within the actual knowledge of the new owner OR
- It is obvious on reasonably careful inspection of the land OR
- It has been exercised in the year before the transfer of the servient land
In what way/why is an implied legal easement enforceable over unregistered land?
Legal interests bind the world
Is an express equitable easement always enforceable against a grantor?
Yes
Is an express equitable easement always enforceable against a new servient owner?
No, it must be protected
How can you protect an express equitable easement?
registered land
- Notice entered in the charges register of the servient land
Is a volunteer, e.g., somebody who is gifted land bound by unprotected express equitable easements?
Yes
Who is not bound by an express equitable easement that was not protected?
A purchaser for value
Do express equitable easements need to be protected on unregistered land?
Yes
What must be registered and where to protect an express equitable easement on unregistered land?
Class D (iii) Land Charge
Are the protection rules for implied equitable easements the same as those for express?
Yes
What 3 remedies are available for easements?
Mandatory injunction to remove obstruction
Prohibitory injunction to prevent interference with the enjoyment of the easement
Damages in lieu of injunction or in addition
Who is the covenantee?
The person who required somebody else to enter into the covenant
Who is the covenantor?
The person who has to obey the covenant
Whose land is servient (covenants)
The covenantors
Whose land is dominant (covenants)
The covenantee
What is a positive covenant?
A promise to do something
What is a negative covenant?
A promise not to do something
How are covenants enforceable?
Privity of contract
Is there a direct legal relationship between the successor covenantee and covenantor?
No
Why is it important to see whether the benefit and burden have passed?
Because if it doesn’t pass, it won’t be enforceable
Can positive covenants be enforced against a successor covenantor in equity?
No
What is a mixed covenent?
A promise which has both positive and negative elements
What 2 types of mixed covenants are there?
Conditional (don’t do x without permission) (cannot be split)
Separate (can it be split)
What is the general rule regarding whether the burden of a covenant passes to a successor at common law?
The burden doesn’t pass
What case determines/sets out the tests as to whether the burden of a covenant passes at equity?
Tulk v Moxhay
What are the 4 requirements in Tuck v Moxhay
- Covenant must be restrictive
- Covenant must accommodate the dominant tenement
- There must be intention for the burden of the covenant to run
- There must be notice of the covenant
*passing burden in equity
Can positive covenants be enforced in equity?
No
Requirement: the covenant must accomodate the dominant tenement
What are the 3 aspects to the second requirement under Tulk v Moxhay?
- Covenantee and successor covenantee must hold an interest in the land at the time of creation and enforcement
- The covenant must touch and concern the land
- The dominant and the servient land must be in proximity
What does it mean that the covenantee and successor covenantee must hold an interest in the land at the time of creation and enforcement?
Basically the person suing has to still own at least some of the land
What does it mean that the covenant must touch and concern the land? (3 TESTS) (for burdens)
- must only benefit the dominant owner whilst they own dominant land
- should affect the nature, quality, use or value of dominant land
- should not be expressly personal
In what 2 ways can you show that there must be intention for the burden of the covenant to run?
- Express clause
- Impliedly: LPA 1925 says that a covenant will be deemed to pass unless there is contrary intention written
How is notice given of a covenant over registered land?
Notice in the charges register of the servient title
How is notice given of a covenant over unregistered land?
The covenant must be protected by a Class D (2) Land Charge
Is a donee of land bound by a covenant without notice?
Yes
Is a purchaser for value without notice bound by a covenant?
No
What 2 things must be shown if a successor covenantee wishes to enforce a breach against a successor covenantor?
- That the burden of the covenant has passed to the successor covenantor in equity
- That the benefit has passed to the successor covenantee in equity
To enforce a breach against a successor covenantor, is it enough to show that the burden has passed in equity and the benefit at common law?
No, for an equitable remedy both benefit and burden must pass in equity
What are the two elements which must be fulfilled for a benefit to pass in equity?
The covenant must touch and concern the land
The benefit must pass by one of the 3 methods in Renals
What is annexation (covenants)
When a covenant is made in such a way that the benefit becomes a permenant part of the dominant land itself
**passing benefit
What are the 3 methods by which the benefit of a covenant can pass in equity?
Annexation
Assignment
Building Scheme
What are the 2 ways in which annexation occurs?
Express
Statutory LPA s78
What is express annexation?
When the wording of the covenant makes it clear that the original parties intend the benefit to become part of the dominant land
Will express intention to benefit ‘their hiers, executors and assignees’ to a covenant be sufficient to show express annexation?
No
Will express intention to benefit ‘owners and successors in title’ be enough to demonstrate express annexation?
Yes
What does statute say about whether the benefit of a covenant passes?
It says that it will be deemed to be intended to benefit successors
If statute says that the benefit of a covenant will bind successors, then why does there need to be express annexation?
There doesn’t really, except that statutory annexation can be excluded
When does assignment of the benefit of a covenant happen?
When the dominant land is sold
Why would the benefit of a covenant need to be assigned?
Because it wasn’t annexed
Why would a covenant not have been annexed?
Express exclusion
Can’t be said to benefit the land itself
Once the benefit of a covenant has been assigned, does it have to be assigned again on subsequent sales?
Yes
What are the formalities for assigning the benefit to a covenant?
In writing, signed by the person transferring the benefit
What type of covenants does the building schemes rules apply to?
Restrictive only
What are covenants treated as if the conditions of a building scheme are met?
By-laws enforceable by and against all owners
Using the building scheme way to demonstrate passing of benefit, do you have to show benefit of that covenant to the particular claimaint?
No, deemed to benefit all in that building scheme
What are the 4 conditions of a building scheme?
- All buyers buy from the same seller
- The seller divided the estate into plots
- The covenants were intended to benefit all plots
- Each buyer buys on the understanding that the covenants are intended to benefit all plots
Will courts interpret the building scheme rules as guidelines or strict requirements?
Guidelines
What will the courts need to be satisfied of to apply the building scheme rules?
That it was the intention of the parties to create a scheme of mutually enforceable obligations
Once the original covenantee sells, can they still sue?
Technically yes
Why is it unlikely that the OG covenantee would sue after selling?
They likely can’t show a loss, and wouldn’t have much motivation cause they no longer live there
What types of remedies apply for a covenant breach?
Equitable remedies
What is the most common remedy for a breach of covenant?
Injunction
When is a prohibitory injunction used?
To prevent a future breach that hasn’t happened yet
When is a mandatory injunction used?
After a breach has happened, to rectify it (e.g., take the building down)
What happens if there is a delay in seeking a remedy for a breach of covenant?
Delay defeats equity
When might a breach of covenant result in damages instead of an injunction?
If it would be an ‘unpardonable waste’ (e.g., to tear down a bunch of much needed affordable housing
When awarding damages for a breach of covenant, what approach is the court likely to take?
Damages calculated that reflects the amount that theoretically would have been paid to the owner for release from the covenant (e.g., percentage of profit)
If a building needs demolishing because it breached a covenant to build, what type of injunction will be granted?
Mandatory
If an activity being carried out in breach of covenant needs stopping, what kind of injunction will be granted? (e.g., playing tennis)
Prohibitory
When do common law rules normally apply regarding covenant breaches?
For positive covenants because negative ones pass in equity
What happens to the burden of a covenant when a covenantor moves/sells?
It remains with the OG covenantor
Can the OG covenantor be sued for the breaches of its successors?
Yes
If there is no express wording that the OG covenantor will continue to be liable to successors, will liability still apply?
Yes, it will be implied by statute
What is the only remedy available to pursue against an OG covenantor and why?
Damages only because they are no longer in possession and control of the land
How can the OG covenantor protect itself?
Entering an indemnity covenant with the new buyer
What is the technical definition of an indemnity?
A primary obligation and agreement by one party to bear the cost of certain losses/liabilities suffered by another party in certain circumstances
What does the chain of indemnity to refer to?
Indemnities obtained normally because of positive covenants passing under common law which enables the OG covenantor to sue their successor to recover for breaches at the bottom of the chain until the breaching party is finally held liable
Can the covenantee sue the current servient land owner under common law enforcement?
No, they must sue the OG covenantor who then sues down the chain
What is the exception to the general rule that a burden does not pass to a successor at common law?
The doctrine of mutual benefit and burden
What case must you know regarding the doctrine of mutual benefit and burden?
The rule in Halsall v Brizell
What is the rule in Halsall v Brizell
The burden of a covenant can pass to a successor covenantor at common law where the covenantee grants the covenantor a benefit in the nature of an easement and imposes a connected burden
What is the typical example of a scenario under Halsall v Brizell
There is an easement allowing parking, on the condition of a covenant (burden) to contribute towards maintaining the parking spot…
The successor covenantor cannot take the benefit of the parking without accepting the burden of maintaining the spot
What are 3 conditions for the doctrine of mutual benefit and burden?
There must be a clear link between the burden and benefit (e.g., parking use, parking maintenance)
There must be a genuine choice as to whether or not to take the benefit (can be theoretical)
The benefit and burden must have been conferred in the same transaction
How can you sidestep the rule that the burden of a freehold covenant will not pass to a successor covenantor?
Grant a long lease instead, all covenants in leases except personal ones are enforceable by and against successors in title via the doctrine of privity of estate
Does the burden of a covenant pass if contained in a lease?
Yes, always
What does a successor covenantee have to show to be able to enforce the covenant?
That the benefit has passed to it
In what 2 ways can a benefit pass at common law?
Express assignment (in writing, and express notice of assignment given to the covenantor)
Implied assignment, if certain conditions are met
What are the 4 conditions to satisfy to prove implied assignment of the benefit of a covenant?
Must touch and concern the land
Must have been an intention that the benefit should run with the dominant land
Original covenantee must have a legal estate in the dominant land
The successor covenantee must hold a legal estate in the dominant land
What does it mean to touch and concern the land, regarding passing by implied assignment?
Covenant must benefit the dominant land itself e.g., effect the nature, quality, use or value of the land
How can you show intention for the benefit to run with the dominant land?
Express
It will be assumed in statute unless expressly excluded
If the OG covenantee held a freehold, and the successor a leasehold, is the successor deemed to own a legal estate in the dominant land for the purposes of meeting the requirements for implied assignment of a covenant benefit?
Yes
What does it mean to discharge a covenant?
It is no longer valid
When will a covenant be automatically discharged?
If a person becomes owner of both dominant and serviant land
How is express agreement to discharge a covenant formed?
The dominant owner expressly agrees, and the release must be made by deed
How can the dominant owner impliedly agree to discharge a covenant?
By doing nothing when it is openly breached
How can the servient owner avoid being held to random by the dominant owner to discharge an obsolete covenant?
They can apply to the upper tribunal (lands chamber) to discharge or modify the covenant
What type of covenant can the land chamber discharge?
Only restrictive
On what 4 grounds can the lands chamber discharge or modify a covenant?
It has become obsolete due to changes in character
Its continued existence impedes the reasonable use of the land
The dominant owners expressly or impliedly agree
The dominant owners will not suffer injury
What must an applicant show to the land chamber to demonstrate grounds that the continued existence of a covenant impedes the reasonable use of the land?
That the covenant confers no practical value or is contrary to public interest
What must the tribunal be satisfied of, to determine that the covenant impedes reasonable use of the land?
That financial compensation would not be adequate for the dominant owner
Why would an application to the tribunal still need to be made if the dominant owner agrees expressly or implidely to discharge?
It sets the price, and prevents ransom
For restrictive covenant, how does the benefit pass in equity?
Touch and concern +
- annexation
- assignment
- building scheme
For restrictive covenant, how does the burden pass?
Tulk v Moxhay
- must be negative
- must accommodate dominant land
- show intention
- notice
For positive covenant, how does the benefit pass at common law?
Express assignment
Implied assignment
- touch and concern (benefit the land)
- must be intention
- OG covenantees must have held a legal estate in the dominant land and successor must now hold legal estate
For a positive covenant, how does the burden pass?
General rule: it doesn’t
Exception: Halsall v Brizell
Doctrine of mutual benefit and burden
- Close link
- Same transaction
- Genuine choice as to whether to accept benefit
What is the basic rule of priority?
An interest of whatever kind will take priority over later dispositions
What determines whether a proprietary right will be enforceable?
The enforcement rules
What are the 3 categories for all estates and interests?
- Registrable dispositions
- Interests protected by entry
- Overriding interests
What is the exception to the basic rule of priority?
A disposition of a registered estate for valuable consideration will take priority over any pre-existing rights in the land except those which have been protected on the register or those that are overriding interests
Can an interest be resurrected after somebody bought for value and was not bound by the interest?
No
Is a grant of legal mortgage a registrable disposition?
Yes
What is a registrable disposition?
Anything you need to register for it to be valid e.g., lease of 7y
Anything requiring creation by deed
What are 5 registrable dispositions?
Transfer of registered land
Lease 7+ years
Express grant or reservation of easement
Grant of legal mortgage
Grant of a landlords right of entry
What determines whether an equitable interest in the land will be binding and enforceable against a third party purchaser?
Whether it was protected by notice or restriction
Does an entry of notice confirm valid creation of that interest?
No
When is a notice the appropriate way to protect an interest?
When it is intended to last beyond a change of ownership
What are the 2 most commonly encountered interests which cannot be protected by notice?
Beneficial interests in a trust of land
Leases of less than 3y
Are restrictive covenants protected by notice or restriction??
Notice
Are estate contracts protected by notice or restriction??
Notice
Are equitable easements protected by notice or restriction??
Notice
Are equitable leases protected by notice or restriction??
Notice
Are legal leases between 3-7y protectable by notice or restriction??
Notice
Are trust interests protectable by notice?
No
On which portion of the register are entries of restriction for dispositions lodged on?
Proprietorship
What is the general characteristic of interest that is protected by restriction?
Those which aren’t intended to last forever
Can you file a restriction for a beneficial interest in a trust of land?
Yes, e.g., to show that overreaching is needed
Can a restriction impose conditions which must be fulfilled before a disposition could be registered?
Yes, e.g., permission from a trustee of bankruptcy before sale
Does overreaching apply to both registered and unregistered land??
Yes
How does overreaching work?
The buyer or lender pays money to at least 2 trustees so the overriding interest is transferred
Where does a beneficiaries interest can transferred to after overreaching?
Into the money of the sale
If overreaching fails, when will a purchaser be bound by an overriding interest?
When the trustee is in actual occupation
What type of interest is capable of being overreached?
Beneficial interest under a trust
What is an overriding interest?
An interest which will bind a purchaser for value, whether a buyer or lender, even though they have not been protected by registration
What are the 3 overriding interests that exist over registered land?
- legal leases for 7y or less
- equitable interests held by people in actual occupation
- implied legal easements and profits a prendre
Does the person claiming actual occupation have to have also occupied at the time of registration?
Maybe
Will temporary absences from home defeat actual occupation?
No
Would a prolonged absence defeat a claim of actual occupation?
Yes, unless for example a hospital stay
Can actual occupation be preparatory to moving in?
No
In what 2 circumstances will a person have no overriding interest even if they are in actual occupation?
- If they were asked and failed to disclose when they should have
- The occupation of the person would not have been reasonably obvious on careful inspection AND the purchaser didn’t have actual knowledge
If a person fails to disclose they had an overriding interest when they should have because they were ignorant will they still have an overriding interest?
Yes
If somebody else was asked if X had an overriding interest but that person was not X is that an exception to actual occupation?
No
In what 3 circumstances will an implied legal interest be binding?
- New owner knew about it
- It was obvious on reasonable inspection
- It has been exercised within 12mo before the disposition
Before 1926, in what circumstances could a person with legal interest over land enforce?
Against whoever, whenever, regardless of notice
Legal rights bind the whole world
Before 1926, in what circumstances could a person with equitable interest over land enforce?
Against anyone who was not equities darling
(A bona fide purchaser for value of legal estate in the land without notice)
What is the equities darling method of enforcement also known as?
Doctrine of notice
What did the doctrine of notice mean for buyers?
They had to make extensive investigations to flush out equitable interests
Post 1926, in what circumstances could a person with legal interest over land enforce?
Same as before 1926
Post 1926, what is the exception for enforceability of legal rights binding the whole world?
Puisne mortgage (second legal mortgage) must be registered as a Land Charge
Post 1926, in what circumstances could a person with equitable interest over land enforce?
Usually it has to be registered by way of a land charge
Post 1926, what are the exceptions to the rule that equitable interests have to be protected via land charge?
Equitable easements and restrictive covenants created before 1926
Equitable interests in a trust of land which have not been overreached
For the post-1926 land charge registration exceptions, what rules determine the enforcement of these exceptions?
The doctrine of notice (equities darling)
Is a land charge entered against the name of the owner or the address of the property
Name of the owner in the title deeds
What happens if you make an error when registering a land charge (e.g., you don’t spell the name as spelled on the title deed)
The interest is unenforceable and will not be binding
What 5 interests can be protected by entry in the Land Charges Register?
- Puisne mortgage
- Estate contract (to buy, option, contract to have a lease granted)
- A restrictive covenant created after 1926
- Equitable easement created after 1926
- Spouses matrimonial right of occupation
What are the only equitable interests that cannot be protected by way of land charge?
Beneficial interests in a trust
Equitable easements
Restrictive covenants
Is a spouses matrimonial right of occupation an interest in the land?
No
If a purchaser knows about an interest which is not registered as a land charge, will they still be bound?
It is irrelevant that they knew, it only matters if it was registered or not
What is the only type of legal interest that can be protected by land charge?
Puisne mortgage
What is created whenever land is owned jointly?
A trust
What right do equitable owners in land have?
A proprietary right subject to the trust
What formalities are required for a trust over land?
In writing
Signed by the declarants
What 2 types of implied trust of land exist?
Resulting
Constructive
Are any formalities required over an implied trust of land?
No
If someone makes a financial contribution to buying land, how much land will they own and what kind of trust is formed?
Resulting trust
Will own in proportion to the contribution price
Will a resulting trust apply in the context of a family home?
No
What kind of trust will apply in the context of a family home?
A common intention constructive trust
When do constructive trusts of land arise?
In circumstances of unconscionability
Under a common intention constructive trust, how is the percentage of ownership determined?
By the court
Is there a trust when land is legally co-owned?
Yes, the owners will hold on trust for themselves collectively
What are the 5 characteristics of a joint tenancy?
- Treated as single entity
- No shares or division everyone owns everything
- The level of contribution is irrelevant
- Must have the 4 unities
- Survivorship applies
What are the 5 characteristics of tenancy in common?/
- Each person has own share of land
- Individual but undivided shares
- Shares can be in proportion to contribution
- Must have unity of possession
- No survivorship, share passes with will
What are the 4 unities?
Possession
Interest
Title
Time
Does tenancy have to show all 4 unities?
No
What does unity of possession mean
Everyone is entitled to any part of the land as the others
What does unity of title mean?
Title is acquired from the same document (e.g., 1 lease)
What is unity of interest?
Interest must be same nature and duration e.g., lease is the same length of time with same obligations
What is unity of time?
Interest of each co-owner must take effect at the same time
What is the maximum number of legal owners of land?
4
What does it mean that trustees of legal title of land must be sui juris?
Full age and sound mind
Can legal title holders hold as tenancy in common?
No, must hold as joint tenants
Can joint legal tenancy be severed to make tenancy in common?
No
Is there a limit to the number of people who can hold an equitable interest in a trust of land?
No
Do equitable co-owners need to be sui juris?
No
What happens if equitable co-owners don’t have the 4 unities?
They can only own as tenants in common
If the 4 unities are present alongside an express declaration of tenants in common, will it be joint tenancy or in common?
In common
When there is no specific wording as to whether equitable co-ownership is joint or in common, what will happen?
There will be a rebuttable presumption for in common when:
1. Land is a business asset
2. The purchase price of non-domestic property has been paid in unequal shares
Can you sever a legal joint tenancy?
No
Can severance occur after death?
No
In what 2 ways can severance occur?
Notice in writing
Other acts or things
If one person severs, do the other joint tenants who haven’t severed also become tenants in common?
No
After severance, in what proportion are shares owned?
Split evenly between owners, not proportionate to contribution
Will a will be treated as severing a joint tenancy?
No, survivorship will already have passed
Who must notice in writing be given to in order for severance to be effective?
All of the other equitable joint tenants
What re the formalities to sever joint tenancy by writing?
There aren’t any
What must severance in writing demonstrate?
Unequivocal and irrevocable intention to sever the equitable joint tenancy immediately
When will notice in writing be deemed to be served for severance by post?
When it has been left at the last known place of abode or business
When will notice in writing be deemed to be served for severance by post if made by registered post and returned undelivered?
Deemed served at the time a registered item would in the ordinary course of events be delivered
Do the existing equitable tenants in common need to be served with severance notices too?
No
What 3 other acts or things will count as severance?
Unilateral act
Mutual agreement
Any course of dealing which indicates that interests were mutually treated as a tenancy in common
What are the 3 subdivisions for unilateral acts as related to severance?
Total alienation
Partial alienation
Involuntary alienation
When does total alienation occur?
When the owner disposes of the interest permanently by way of sale or gift
When does partial alienation occur?
Severing owner temporarily disposes of the interest by way of mortgage or lease
When does involuntary alienation occur?
Bankruptcy
Will prolonged negotiations amount to severance by mutual conduct?
No
Who can apply to the court regarding disputes around co-owned land?
Anyone with an interest
Can a court order a beneficiary to buy out another in a trust of land?
No
What types of orders can courts make in relation to applications from people with interests in land?
Sale
Who can occupy
As to the nature and extent of a beneficiaries interest
What matters must the court have regard to in determining an application for an order under s 15? (people with an interest in a trust of land)
- Intentions of person who created the trust
-Purposes for which the property subject to trust is held - Welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home
- The interests of the secured creditor of any beneficiary
- The circumstances and wishes of any beneficiaries of full age of the majority
Under s15, if a house was bought as a familial home, and there is divorce.. will the purpose for which the property subject to the trust still be continuing?
Yes, if the kids +1 parent can still live there
Under s15, how will the welfare of a minor be considered?
Dependent on their age, need etc… individual basis
Under s15, does caselaw place more weight on the secured creditor or beneficiary?
Creditor
Who can a license be enforced against?
Only the grantor
Can a licensee sue a third party for nuisance or trespass?
No
Can a tenant sue a third party for nuisance or trespass?
Yes
Can a license have security of tenure?
No
Is there statutory protection for licenses?
No
Will the courts look at the substance or the label when determining a lease or a license?
Substance
What characteristics of a lease will the court look at to try and ascertain whether something is a license?
Certainty of term
Exclusive possession
Is payment of rent essential when distinguishing a lease from a license?
No
Would a lease for the duration of the war fail for certainty of term?
Yes
In what 2 ways can certainty of term be shown for a lease?
Fixed term
Periodic term
Can a periodic term be created impliedly?
Yes
How does an implied periodic tenancy arise?
Nothing is in writing, but the certain term arises by looking objectively at all relevant circumstances
How is the term of an implied periodic tenancy calculated?
Reference to which the rent is calculated (e.g., monthly, yearly, yearly paid in monthly installments)
What happens if there is no certainty of term?
Leases
Then it can only be a license
What does it mean to have exclusive possession
Leases
Right to exclude all others including the landlord
What approach will the courts take when trying to determine exclusive possession?
Leases
Case by case
Substance
Reality of situation
What are 3 common indicators that an occupier does not have exclusive possession?
Leases
- Landlord retains a key and right of access
- Landlord provides services
- There is a sharing clause
What is the difference between exclusive possession and occupation?
Leases
Multiple occupiers can have possession
Exclusive occupation = only one person lives there
Would a clause allowing a landlord to keep a key for access to carry out repairs defeat a lease?
Leases
No, it would be seen as an acknowledgement of exclusive possession by the landlord
What types of landlord services defeat a lease?
Leases
Cleaning, changing linens, cooking etc
Would a sharing clause defeat a lease?
Yes, unless it was a sham
If a sharing clause is in an agreement for a 1 bedroom apartment with a couple living there including an acknowledgement signed by all parties that sharing the small space would be fine… would there be exclusive possession?
Leases
Yes, it could not reasonably be contemplated that the space would be shared
What 4 things would be considered when determining if a sharing clause was genuine or a sham?
Leases
- Size and nature of accommodation
- Relationship between the occupiers – is it appropriate to introduce somebody new?
- Wording of the clause (wider drafted, more likely a sham)
- Whether the clause has ever been exercised
Are the same rules for leases/license applicable for residential and business tenancies?
Leases
Yes
What do business tenants have that business licencees do not?
Leases
Security of tenure
Are courts more likely to uphold a residential or business arrangement as a license?
Leases
A business arrangement, because of bargaining power
For a business tenancy, where the occupier can rennovate and make significant alterations… will this be influential in determining a lease over a license?
Leases
Yes
If there is a clause which contains a right for the landlord to relocate the tenant, will this defeat exclusive possession?
Leases
Yes, unless a sham
Is there still exclusive possession if there is multiple occupiers?
Yes, if they can all exclude other people… they are one collective entity
Must multiple occupiers demonstrate the 4 unities to form a joint tenancy?
Leases
Yes
What are the 2 main situations where despite other criteria being met, 2 factors lead to the lease being defeated?
Leases
No intention to create legal relations
There is a service occupancy
What is the #1 circumstance where there will be no intention to create legal relations regarding a lease?
Family arrangement, act of friendship or generosity
*UNLESS there is a degree of formality and/or market rent is paid
What is a service tenancy?
Where the occupier is required to live in the premises for the better performance of his duties as an employee
Will a lease be defeated if accomodation in connection with employment is not explicitely for the better performance of the role?
No, it will be a lease not a license
What are the formalities to create a legal lease?
Valid deed
What type of lease, fulfilling certain conditions, has no formal requirements?
Certain short leases
Does a lease of 3y or less need to be created by deed?
No
What 3 conditions need to be met for a short lease not to require any formalities?
- Lease takes effect immediately on possession
- Lease is granted at best rent
- Lease is not subject to a fine or premium
What are short leases otherwise known as?
Parol leases
What 3 types of lease does the short lease exception apply to?
Short fixed term
Express periodic
Implied periodic
Does a lease of under 3 years need to be created by deed?
No
Does a lease of 5y need to be created by deed?
Yes
Does a lease of 10y need to be created by deed?
Yes
What is the basic rule about what tenants can do to a property?
Anything they want unless prohibited
What must a tenant do under a general repairing covenant?
Keep the premises in the conditition in which they would be kept by a reasonably minded owner
Does a general repairing covenant also require the tenant to put the property into repair?
Yes
What is a schedule of condition
Leases
Photographs etc of the original condition of the property
What repair clause limitation can a schedule of condition provide for the tenant?
That they don’t have to put the property into better repair than it was when they moved in
Will a renewal fall within a repair clause?
No
If a repair costs only slightly less than the value of the premises, will it be a renewal?
Leases
Yes
Leases normally allow the tenant to make some alterations to the presmises subject to what doctrine?
Doctrine of waste – cannot lower the value
What is a user covenant?
Leases
Controls what the tenant can use the property for (e.g., residential)
Does an assignee become the immediate tenant of the landlord?
Leases
Yes
Does the OG lease have to be amended to show the new lease assignee?
No
Where a lease is assigned, is it updated in the register?
Yes
Where a lease is assigned, how is it updated in the register?
The change of proprietor (tenant) is shown in the proprietorship register of the leasehold title
If a lease is silent as to assignment, can a tenant assign?
Yes
Will a covenant against assignment prohibit subletting of a whole or part?
No
Will a covenant preventing subletting of a whole prohibit subletting of a part?
No
What are the formalities to assign a lease?
Deed + registration
Does the short lease exception apply to assigning a lease?
No, all the formalities will still be required
What is an AGA?
Outgoing tenant promises to perform the incoming assignees obligations under the lease in the event the assignee defaults
What are the formalities for granting a sublease?
Deed and registration if over 7 years
What is a qualified covenant?
Without the landlords consent
What is a fully qualified covenant?
Consent cannot be unreasonably withheld or delayed
What is an absolute covenant?
You shall not
Considering reasonableness under fully qualified covenants, what grounds are reasonable to refuse a specific assignee?
Can’t pay etc, not just don’t like football team
What is privity of estate?
Something that exists between a landlord and tenant because they are each owners of a legal estate in the same property
How long does privity of estate between a landlord and a tenant last?
For the duration of the lease
When a lease is assigned, is there still privity of estate?
No
When the landlord sells, or the tenant assigns is there privity of estate or contract between the remaining parties?
Estate
When does the old system of leasehold covenant enforcement apply?
For leases granted before jan 1 1996
When does the new system of enforcing leasehold covenants apply?
On or after Jan 1 1996
How long would liability continue for the OG landlord and tenant under the old leases rules?
For the full duration of the lease term, despite assignment
Does the date of creation or date of assignment determine whether leasehold covenants are enforceable under old or new rules?
Creation
Under the new system, does assignment give a tenant automatic release from liability for a breach of covenant?
Yes
Is an outgoing landlord automatically released from covenant liability?
No, release has to be granted by the tenant
What happens if a tenant refuses to release a landlord from their liability under the lease?
They can apply to the court
Is there an automatically release of covenant liability if they tenant reassigned the lease and they weren’t allowed to?
No
Does a tenant remain responsible for covenant breaches which occured before they assigned the lease?
Yes
Does benefit and burden automatically pass on assignment of a lease?
Yes
Which covenants don’t automatically pass on assignment of a lease?
Those that are expressed to be personal
When will an outgoing tenant be liable for an incoming tenants breach if automatically released on assignment?
If they sign an AGA
How long does an AGA last?
While the assignee is the tenant of the premises
To how many subsequent assignees does an AGA extend to?
Only the first, most immediate one, after that a new AGA needs to be signed
What remedy limitation does a landlord pursuing a former tenant under an AGA have?
Can only pursue damages
Can an outgoing tenant signing an AGA get an indemnity from the incoming tenant?
Yes
If somebody who has signed an AGA, did not get an express indemnity covenant, can they still be indemnified?
Possibly – there is indemnity at common law under the rule in Moule v Garrett
What does the rule in moule v garrett say?
AGA/COMMON LAW INDEMNITY
If one person is compelled to pay damages because of the legal default of another, the former is entitled to recover those damages from the defaulting party
Is there a direct relationship between a landlord and subtenant?
No
Can a landlord enforce restrictive covenants against a new subletter?
Yes
Can a landlord enforce positive covenants against a new subletter?
No
Which LTCA 1995 provisions apply to leases under both the old and new rules?
Assigning leases/liability
Tenant default notice
Liability for variations
Overriding leases
What must a landlord do before pursuing a claim for a fixed charge against a former tenant?/
Give at least 6mo notice of the charge becoming do
What is a fixed charge in the content of a landlord pursuing a former tenant in a claim?
A monetary amount of liability that is known, already set… not like damages which will be ascertained later
Are former tenants and guarantors liable to pay additional amounts owing in respect of variations to the lease that occured after their occupancy?
No
What is an overriding lease?
Not in the context of overriding interests
When a former tenant requests to become the immediate landlord of a defaulting party whom they are liable to after a notice was given to them by the landlord
What will the term of an overriding lease be?
The remaining term +3 days
What covenants will an overriding lease contain?
The same as the current tenants lease minus those that are expressed to be personal
What is the landlord obliged to do if the former tenant requests an overriding lease?
Must grant overriding lease within a reasonable time
When does the right to request an overriding lease arise?
When a landlord serves 6mo notice of a claim against the former tenant for a breach of the assignee
Does the right to an overriding lease apply in the old system or the new system?
Old system only
What is the basic rule about what tenants can do under their lease?
Anything that is not explicitely prohibited
What 3 remedies are available for a landlord when their is a breach of a rent covenant?
Forfeiture
Action for debt
Distress and Commercial Rent Arrears Recovery
Do you need a court order for CRAR?
No, it is a self-help remedy
When can you use the CRAR remedy?
Premises are purely commercial
Minimum 7days principal rent is owed
Lease has not been forfeitted
Can you use CRAR to recover service charges?
No, only rent
What 4 remedies are available for a landlord for tenant breaches of non-rent covenants?
Injunction
Forfeiture
Specific performance
Damages
What remedy is a landlord most likely able to obtain?
Probably just damages
Will a court award special performance for a repair obligation?
Probably not
Would specific performance be awarded in favour of a landlord with regards to a failure to pay rent?
Probably not
What are the 6 ways a lease can end?
Notice to quit
Merger
Forfeiture
Break clause
Surrender
Effluxion of time
How does a lease end under effluxion of time?
Fixed term comes to an end
When will effluxion of time not operate to end a lease?
If there is security of tenure
What is forfeiture of a lease?
Right of a landlord to terminate the lease prematurely for breach of a covenant by the tenant
What is a lease merger?
Tenant acquires the landlords interest and becomes its own landlord
What is a lease surrender?
Tenant handing lease back to the landlord with their consent
Does there need to be an express forfeiture clause for one to be applicable in a legal lease?
Yes
Will a forfeiture clause be able to be implied into a legal lease?
No
Are forfeiture clauses implied into equitable leases?
Yes
What is a forfeiture clause also known as?
Re-entry clause
What 2 methods of forfeiture are there?
Peaceable re-entry
Court order
When can a landlord use peaceable re-entry for residential property?
Only for pure business premises
What are the 3 steps in the lease forfeiture procedure?
- Has there been a breach?
- Is there a forfeiture clause?
- Has there been a waiver?
How might a landlord waive their right to forfeit?
- He is aware of the acts or omission giving rise to the right to forfeit and
- He does come unequivocal act recognising the continued existence of the lease
How long does waiver last in a continuing breach?
Until the next day that the breach continues
How long does a waiver last for a non-continuing breach?
Forever
If a landlord waives the right to forfeit, are other remedies still available?
Yes
What type of breach is non-payment of rent?
It is a non-continuing breach, a new breach each time
Is subletting a continuing or non-continuing breach?
Non-continuing
What additional 3 steps are there in the forfeiture procedure for non-payment of rent?
Formal demand
Exercise the right
Relief
When must the landlord serve a formal demand in the steps for forfeiture?
On the day rent becomes due, between the hours of sunrise and sunset
When does the landlord not need to serve a formal forfeiture rend demand?
If the lease expressly waives the requirement
At least 6mo rent arrears has accrued and there are insufficient seizable goods on the premises to satisfy the arrears due
Is the court likely to grant relief from forfeiture?
Yes
When will the court not grant relief from forfeiture?
In exceptional circumstances
- property is already lawfully relet
- non-payment of rent is exceptionally bad
What is the deadline for a tenant to apply for relief from forfeiture?
Within 6mo of re-entry
If a landlord forfeits commercial lease without a court order, what 2 criteria need to be met for the court to have jurisdiction to grant relief?
- Rent and landlords costs are paid
- It is just and equitable to grant releif
What are the additional 3 steps for forfeiting due to breach of a non-rent covenant?
- s.146 notice
- Exercise the right
- Relief
What must a s146 notice include?
The breach complained of
If capable of remedy, require it to be remedied within a reasonable time
Require the lsee to make compensation in money for the breach if the landlord requires such compensation
Is there a prescribed form for a s146 notice?
No
What is a reasonable time (to provide for a remedy under a s146 notice)
Depends on nature of the breach
Generally 3mo
What happens if after a s146 notice the tenant does not remedy the breach?
Landlord can continue with forfeiture
What is the point of a s146 notice if the breach is not capable of remedy?
Landlord just gives it so the tenant has enough time to consider its position before the forfeiture happens
Are unauthorised alterations capable of remedy?
Yes
Is breach of assignment or sublet covenant capable of remedy?
No
Is immoral use capable of remedy?
No
Is illegal use capable of a remedy?
No
What is the additional protection for tenants where there is a forfeiture for breach of repair covenants?
When lease is 7 years long and there are at least 3 years left…
LL must inform tenant in the s146 notice that it can serve a counternotice within 28 days
If counternotice is served, landlord cannot proceed with a claim without leave of the court
What will the court consider when deciding whether to grant relief from forfeiture for a non-rent breach?
How willful/blatant it was
Gravity
Landlord motives for forfeiture
Damage to the premises
Whether it can be put right
When does a tenant need to apply for relief from forfeiture when landlord is obtaining a court order?
Before a court order is granted
When can relief be given when a landlord has exercised forfeiture by peaceable re-entry?
After peaceable re-entry works
