Land 4.1 Nature of Land Flashcards
Can five people purchase a property together and hold the legal estate?
No. Only four people of full age and mental capacity can hold the legal estate to a property and appear on the proprietorship register
What is the maximum number of people entitled to the beneficial interest?
No maximum number
What is the LPA 1925
Law and Property Act 1925
This is one of the only pieces of legislation that you will be expected to recognise in the SQE exam.
Corporeal hereditaments
tangibles which become part of the physical land e.g surface of the land, fixtures etc
Incorporeal hereditaments
Rights over the land
They pass with the land on sale from a seller to a buyer
Is a seller entitled to take trees and plants from the land they are selling?
No - they form part of the land and the buyer is entitled to them on purchase
The definition of ‘land’ explained:
- a landowner cannot object to the passage of aircraft over their land during normal flight
- a landowner can hunt wild animals on their land, even though they do not own them,
and - if an old artefact or gold is found underground, it belongs to the Crown.
Fixtures are
Things that are attached to the land and form a part of the land
What are the two tests to decide if something is a fixture?
- The degree of annexation test: this test provides that the greater the degree of attachment
to the land, the more likely the item is to be a fixture.
The purpose of annexation test – if the fixture was brought to the land to be a permanent improvement, it is a fixture
Fitting
Does not pass with the land and will not pass with the new owner
Gold / treasure found on the land belongs to:
The Crown
What is the legal estate
right to possess or use the property and has control over
the property
The holder of the beneficial interest
Entitled to the economic benefit of a property, they have a ‘behind the scenes interest’
Also have a right to live in the property or take a share of the rental income
What are the two estates in land:
- freehold
- leasehold
What are the five legal interests in land?
- mortgages
- rentcharges: used to enforce a positive covenant ie. payment for the maintenance of property
- easements: ie. a right of way
- Profits à prendre: use the land for profit
- rights of entry
Easements
A right which exists over one piece of land for the benefit of another piece of land.
Rentcharges
An interest in land which requires the landowner to make a periodic payment in respect of land to the rent charge owner. They are generally used to enforce a
positive covenant, for example, for the payment for
communal services (such as a play area, park or shared
facilities) on a freehold housing estate.
How must legal interests be created?
by deed: LPA 1925 s 52
Equitable interests are
All other interests in land that aren’t legal
Name some common examples of equitable interests
Freehold covenants
Estate contracts
Matrimonial home rights
Beneficial interests under a trust
Equitable mortgages
What is a freehold covenant?
Equitable interest
Obligation to do or not do something
Restrictive or positive
Equitable mortgages
An agreement to create a mortgage or a failure to create a mortgage by deed may give rise to an equitable mortgage.
There must be sufficient evidence in writing as to the terms of
the mortgage.
If a legal interest creation fails ie. by a failure of the formalities of a deed - what is created?
An equitable interest
Legal interests bind all
Third parties
Equitable interests only bind when
parties who are not bona fide purchasers for value of a legal estate without notice of the
equitable interest
Right of way is a
Easement
If created by deed, it is one of the five legal interests
Legal charge is a
Mortgage
If created by deed it is possible that it is one of the five legal interests
The creation of the two legal estates and five legal interests must be created by
Deed - check in a MCQ that is has been created by the relevant formalities
If the relevant formalities have not been met, it will not be a legal interest
Is a deed needed to create a transfer of part?
yes - this is a new covenant or right over the land. Created when part of the seller’s land is sold
Transfer of whole - what type of deed is needed
This is when all of the land is transferred in a sale
TR1 form
Transfer of part
used when a part of the land is sold, the form required is a TP1
Conveyance is a
Traditional deed
Used in the unregistered conveyancing system to transfer an interest in unregistered land
Two legal estates and five legal interests must be created by
Deed. If a right or interest does not fall within these categories, by definition, it must be an equitable
interest.
Name some examples of how an equitable interest can be created
- express trust
- an attempt to create a legal interest which has failed
- behind the scenes beneficial interest implied in land - by implication: when someone has contributed towards the acquisition of the land
- Behind-the-scenes beneficial interest in land – by declaration: declaration of trust where two people purchase a property together
tenants in common
own different shares of the property
share of the property does not automatically go to the other owners if you die
you can pass on your share of the property in your will
joint tenants
have equal rights to the whole property
property automatically goes to the other owners if you die
cannot pass on your ownership of the property in your will
own a property as either
joint tenants
or tenants in common
Fixtures can only be transferred by
Conveyance
Profit a prendre in gross
right to take something from the land of another, which can be bought and sold independently, and is not attached to the ownership of a particular piece of land
profit a prendre appurtenant
A profit a prendre appurtenant is a right the benefit of which is attached to a particular piece of land
A profit a prendre may be
appurtenant (attached to the land) or in gross (not attached to the land can be bought or sold)
An equitable easement should be protected by registration of a
D(iii) land charge
where a deed fails to create a legal interest ie. an easement. This can create an equitable easement instead that can be protected by registration of a D(iii) land charge
Concurrent interests - what does this these describe?
This describes interests over the same piece of land which exist at the same time.
