Land Flashcards
Legal interests
Mortgages, easements for a term equivalent to a free hold or leasehold estate, rights of entry.
Equitable interests
Freehold covenants, estate contracts, interests in a trust of land, easements for an uncertain term.
Formalities for a land contract v a deed
Land contract - in writing, expressly agreed terms all contained, signed by both parties.
Deed - clearly intended to be a deed, signed by seller in presence of a witness (or if a company, two directors signing, a director and a witness signing, or a director and secretary signing, or affixing company seal), delivered (dating).
When does legal title transfer registered v unregistered land
Registered - when registration takes place.
Unregistered - completion of the deed (but then need to register in two months or title back to seller).
When is an estate contract binding on third parties?
Only if protected.
When would there be an equitable mortgage?
- If the borrower holds an equitable interest in the land - e.g. they are the beneficairy of a trust in the land - any mortgage of that interest is equitable just needs to be in writing and signed by grantor.
- Defective legal mortgage - not valid deed or not completed by registration. Contract to grant a legal mortgage if in writing, all terms, and signed by both mortgagor and mortgagee.
When would an option to purchase for the mortgage provider be upheld?
If it is granted in subsequent transaction in dependent of the mortaage, may be more likely.
What happens to solus ties
Generally upheld in commercial transactions If they end within the mortgage term.
Priority of mortgages
Legal based on registration, equitable based on creation date.
Equitable protected by notice take priority over subsequent legal, but not protected will not take priority over subsequent legal mortgage or transfer of legal estate for a value.
Rights of lender
- Receiver - deemed to be borrowers agent, manages property.
- Sale - Procedural steps before like Exist? Probably yes as express power of sale or implied. Arise? Mortgage money has become due - one payment due or legal redemption date if interest-only. Exercisable? Either notice has been served and borrower has defaulted, interest is unpaid and arrears for at least TWO MONTHS, or breach of another mortgage provision like a covenant.
- Possession - last resort for residential. Court app not necessary, but preferable. Try alternative methods before. Pre-Action Protocol. If mortgagor appears likely to the able to pay sums due within a reasonable period, court can postpone possession if RESIDENTIAL AND BORROWERS HOME. s36 AJA.
- Debt action used in addition to e.g. possession.
- Foreclosure - rarely used.
Easement Creation and Capability and Disqualifying Factors
Creation - express or implied by prescription
Capability -Ellenborough - there must be dominant and serviant land and diversity of ownership. Easement must accommodate dominant land. Must lie in grant (judicially recognised, granted by capable grantor to capable grantee, capable of reasonably exact description).
Disqualifying factors - Must not amount to exclusive possession, must not require additional and unavoidable expediture by servant owner and must not depend on permission given by servant owner.
Express legal easements formalities
Deed and registered against servant land. Then benefit noted on Property Register of dominant land and burden in Charges register of servant land.
Methods of implied acquisition of easements
Easements implied into transfer deeds to legal leases are implies legal easements, and implied into contracts or equitable leases are implied equitable easements.
necessity - grants (and reservations)
common intention - grants (and reservations). definite and particular manner.
Wheeldon v burrows - grant. Quasi easement used continuous and apparently, necessary for reasonable enjoyment of land, in use by common owner at date of transfer or lease of dominant land.
lap s62 - grants only. When someone buyers freehold or leases land, they will relieve benefit of all existing easements, whether expressly or impliedly granted. Also, wright v macadam, can imply a brand new easement into a document.
Easement enforceability
EXPRESS LEGAL - ENFORCEABLE or OVERRIDING
Express legal, registered land - always enforceable against servant owner.
Express legal, unregistered land - legal binds the world and then will be an overriding interest on first registration of servant land and noted on charges register.
IMPLIED LEGAL -Reg need notice etc, Unreg - overriding
Implied legal, registered land - enforceable against servant owner if within actual knowledge, obvious on reasonably careful inspection, or exercised within a year before the transfer of the servant land.
Implied legal, unregistered land - legal binds the world, overriding interest on first registration.
EQUITABLE EASEMENTS - protect with notice on charges register
Express/implied equitable, registered land - need to be protected by notice on charges register to be enforceable against new servant owner. But a volunteer will always be bound, whether or not interest is protected.
Express/implied equitable, unregistered land - protect with a class D(iii) land charge to enforce against new servant owner. Volunteer will always be bound.
Equitable rules of passing burden and benefit of a covenant
Passing the burden:
1. Restrictive in nature
2. Accommodate dominant tenement?
3. Touch and concern dominant land.
4.. Intention to run.
5. Notice? (charges register or Dii land charge.)
Passing the benefit:
Option 1: Express annexation.- says in the covenant that it’s intended to become part of Dom land.
Option 2: statutory annexation - not excluded Lpa s78(1).
Option 3: Assignment where it has not been annexed. Comply with LPA s53(1)(c), pass down manually assign each time land is transferred.
Option 4: Building scheme - covenants bylaws against all owners, as long as they are intended to benefit all plots.
