Land 3

Question 1

Who owns all land in England and Wales?

Answer 1

The Crown

Question 2

If the Crown owns all the land, what is registered by a landowner claiming ownership?

Answer 2

The estate and interests in land are registered, not the land itself.

Question 3

What are the two estates under the Law of Property Act 1925?

Answer 3

1. Freehold estate (fee simple absolute in possession)2. Leasehold estate (term of years absolute)

Question 4

In terms of duration, what is the difference between a freehold and leasehold estate?

Answer 4

Freehold is for an uncertain duration. Leasehold is for a fixed duration.

Question 5

What is a commonhold estate?

Answer 5

A form of land ownership introduced under the Commonhold and Leasehold Reform Act 2002. * Used with regard to flats and commercial leases on business parks (rarely). * The rights and duties of the unit holders are in a ‘Commonhold Community Statement’, and these rights and duties will benefit and bind successive unit holders. * A management company covenants to comply with maintenance obligations and provide services. * The land will be registered as commonhold land and the owner of each individual unit (unit holder) will be a member of the ‘Commonhold Association’ and will be registered as the freehold owner of that unit.* The Association will be a company limited by guarantee. The members of the company will be the unit holders, and the company will be registered as the freehold owner of the common parts.

Question 6

What are the 3 conditions required to create a commonhold estate?

Answer 6

• The freehold estate must be registered as a ‘freehold estate in commonhold land’* The land must be specified in the Memorandum of a Commonhold Association as land in relation to which the Association is to exercise functions and * There must be a Commonhold Community Statement which makes provision for the rights and duties of the Association and of the unit holders.

Question 7

To have a better understanding of freehold estates for the purposes of tricky questions, what does the fee mean in fee simple absolute in possession?

Answer 7

That it can be inherited

Question 8

What does the simple mean in fee simple absolute in possession?

Answer 8

That it can be inherited by anyone

Question 9

What does the absolute mean in fee simple absolute in possession?

Answer 9

It will not end on a certain event

Question 10

What does the in possession mean in fee simple absolute in possession?

Answer 10

Immediate and present enjoyment

Question 11

Separate from the two legal estates do (1) legal interests or (2) equitable interests confer ownership of land?

Answer 11

No, they concern rights over land the legal estate of which is held by another* Generally these involve third party rights which limit the rights of the freeholder

Question 12

What are the five categories of legal interest, and only how may they be created?

Answer 12

1. Mortgage2. Easement3. Rentcharge4. Right of entry5. Profits a prendreMust be created by deed.| s1(2) LPA 1925 and s52 LPA 1925 (deed requirement)

Question 13

What is a mortgage?

Answer 13

• A loan secured on a property which entitles the lender to certain rights, including the right to sell the property if there is a default on the loan obligation secured by the mortgage. * The mortgagor executes a deed in favour of the mortgagee, which expressly states that the property has been charged with the debt by way of legal mortgage.| (s87 LPA 1925).

Question 14

What is an easement?

Answer 14

A right which exists over a piece of land which benefits a different piece of land (usually to pass over or to have rights through, over or under someone’s land)* The land over which the right is enjoyed is the ‘servient tenement’ * The land benefitting is the ‘dominant tenement’. Example: right of way over someone’s land or a right to use pipes crossing the land of another.

Question 15

What is a rentcharge?

Answer 15

An interest in land requiring the landowner to make a periodic payment in respect of land to the rentcharge owner (typically a former owner of the land), but is different to and cannot arise under a lease or tenancyCan be used to enforce a positive covenant (right of entry) and relatively uncommon.

Question 16

What does the the rentcharge owner’s right of entry allow him to do?

Answer 16

Enter and take possession of the premises in the event of a default

Question 17

What is an estate rentcharge?

Answer 17

An estate rentcharge is one of the exceptions allowing new rentcharges and is the most likely to be met in practice e.g. in property development.* Example: A developer sells plots on a freehold estate but retains ownership and responsibility for common amenity areas on the development. To fund the maintenance on the common areas, the developer may reserve a rentcharge from each plot purchaser.

Question 18

What is a profit a prendre and what are the two types?

Answer 18

An interest in land enabling someone to take something from the land of another1. Profit a prendre in gross2. Profit a prendre appurtenant

Question 19

What is the difference between a profit a prendre in gross and a profit a prendre appurtenant?

Answer 19

Profit a prendre in gross:- Exists independently of the land- Can be exercised for personal benefit of the profit owner- Can be bought and sold separately from the land- Not attached to any piece of land (owner doesn’t need to own any land at all)- Example: a right of a neighbour to go onto another’s land to collect peat that they can give to another personProfit a prendre appurtenant:- Attached to a particular piece of land- Is bought and sold with the land- Example: a right to take timber/fish belonging to the plot of land next door

Question 20

Can either of the following be registered with HMLR?* Profit a Prendre in Gross* Profit a Prendre Appurtenant

Answer 20

In Gross: YesAppurtenant: No

Question 21

What is a right of entry?

Answer 21

Rights of entry include rights of entry contained in leases and annexed rentchargesExample: right of a landlord to come onto leased premises to perform maintenance

Question 22

What is a common situation in which an equitable interest may arise by accident?

Answer 22

When parties attempt to create a legal interest by deed, but the formalities for a deed are not met

Question 23

Whilst legal interests bind all parties, only whom are a bound by equitable interests?

Answer 23

Only third parties who are not bona fide purchasers for value without notice

Question 24

A farmer enters into a valid contract with a buyer to sell a parcel of the farmer’s land to the buyer. The parcel has no access to a road and so the parties agree that the buyer shall have a right of way over the farmer’s retained land. However, the transfer document contains no reference to such right and, therefore, no legal easement was created. Will the buyer have any right of way?

Answer 24

The buyer may be able to establish an equitable easement in his favour. The legal easement failed as it was not in writing.

Question 25

What are the four types of equitable interest?

Answer 25

1. Equitable mortgage2. Restrictive covenant3. Positive covenant4. Estate contract

Question 26

When will an equitable mortgage arise?

Answer 26

Where a mortgage is not secured by a deed (i.e. failure to make a legal mortgage), equity may recognise an equitable mortgage if:* there are sufficient evidence in writing as to its terms and* it is fair to do so

Question 27

Is the deposit of title deeds as security for a loan enough to create an equitable mortgage, and why?

Answer 27

No, because:1. Equity requires sufficient evidence in writing before an equitable mortgage can be created2. A contract for property must be in writing, and in this situation there is no written agreement capable of enforcement

Question 28

A agrees to lend B £10,000 and they both sign what they think is a mortgage deed whereby B agrees to A having a first legal charge over his house as security for the loan. Although the parties signed the document, their signatures were not witnessed. To be valid at law, the signatures must be witnessed. B took the money but refused to comply with the terms of the mortgage deed. He argued that it was defective because it was not witnessed. Can A enforce the agreement?

Answer 28

Yes. Equity would recognise the agreement as an equitable mortgage and would allow A to enforce the mortgage against B.

Question 29

What are restrictive covenants?

Answer 29

A promise not to do something that is attached to the land. Despite the doctrine of privity of contract, equity allows successive owners to sue and be sued based on restrictive covenants in certain circumstances

Question 30

A is selling part of his garden to B, who wants to build a house on the land that he is buying. A is willing to allow B to build one house on the land but does not want two or three houses on the land that he is selling, because A considers that this will be detrimental to the land that he is retaining. Is there anything A can do to enforce this?

Answer 30

One solution is for A to impose a restrictive covenant on the land being sold to B which states that only one dwelling shall be built on the land. A and B are the original contract- ing parties - there is ‘privity of contract’ between them - so A will always be able to enforce the covenant against B. But it is important for A to ensure that subsequent owners of the land that B is buying are similarly bound by the covenant.

Question 31

What are positive covenants?

Answer 31

A promise to do something that is attached to the land e.g. an obligation on a landowner to fence a boundary and to maintain it thereafter, or an obligation to contribute to the costs of repair of a shared road.Such covenants might not be enforceable against successors in title.

Question 32

What are estate contracts?

Answer 32

• Where a person enters into an agreement (i.e. a contract) to buy land, the person is deemed to have an equitable interest in that land from the date of the contract. * A person having an option to purchase land is also deemed to have such an equitable interest. This equitable interest can be protected according to whether the land is registered or unregistered.

Question 33

What does the term concurrent interests describe?

Answer 33

The fact that a number of legal and equitable interests can exist in land at the same time

Question 34

In addition to the usual requirements of a contract (offer, acceptance, consideration, intention to be bound and capacity), what two things are required for a contract for the sale of land to be valid?

Answer 34

1. In writing and include all the terms to which the parties have agreed2. Be signed by all the parties or someone on their behalf with written authority

Question 35

What is a deed?

Answer 35

A written document used to:* create and interest or right in land, or* transfer ownership of land, or * by which an obligation relating to land is confirmed

Question 36

What three things are intended for a deed to be valid?

Answer 36

1. In writing2. Clearly intended to be a deed (i.e. described as a deed expressly or otherwise3. Duly executed as a deed (signed, witnessed and delivered)

Question 37

What are the three requirements for a deed to the duly executed?

Answer 37

1. Signed 2. In the presence of a witness who attests their signature (usually by signing an attestation clause)3. Delivered (by them or a person authorised on their behalf e.g. a solicitor)Note: a company may execute a deed by affixing a company seal

Question 38

When is a deed delivered?

Answer 38

When the party expresses an intention to be bound by the deed

Question 39

In what four situations is a deed not need to transfer property?

Answer 39

1. Assents by personal representatives2. Disclaimers under the Insolvency Act 1986 3. Surrenders by operation of law (including implied surrender e.g. landlord and tenant demonstrate by conduct there is no longer a lease between them) 4. Leases, tenancies or other assurances not required by law to be in writing

Question 40

Does a contract for the sale of land need to be by deed?

Answer 40

No - it must be in writing. The document transferring the interest only needs to be by deed

Question 41

When is the Human Rights Act 1998 relevant to ownership and rights relating to real property?

Answer 41

If the land is owned by a public authority (e.g. local authority).Example: A local authority landlord may have to enforce its right to possession of a property consistently with the HRA.