Land and property Flashcards
What is a fixture and does it pass with sale of land?
affixed/annexed to the land or building so that it is part of the land or building.
Passes automatically with the sale of land
What is a fitting and does it pass with the sale of land?
object on land that doesn’t become part of it but stays a separate chattel
only passes if it is listed in the Fittings and Contents Form
2 tests for determining if something is a fixture
Degree of annexation test: how attached it is to the land - would removing it cause damage?
Purpose of annexation test: whether it was intended to be a permanent part of the land (statue as focal point of garden design)
purpose test prevails
2 types of legal estate
freehold (fee simple) and leasehold (term of years)
can a restrictive covenant be enforced against a subsequent buyer?
if they have notice of the covenant
requirements for a valid deed
in writing, state that its a deed, signed by the grantor and a witness who attests their signature (signs to verify) and be delivered
requirements for a contract for land
in writing, include all agreed terms, be signed by all contracting parties
proprietary estoppel
a remedy when it would be unconscionable to permit a party to gain or lose proprietary rights because of lack of formalities.
requires: assurance, claimant’s reasonable reliance on the assurance, claimant acted to their detriment, would be unconscionable to not grant the remedy
when is a buyer bound by equitable interests?
when they are aware of them (unlike legal where they are bound even if unaware)
so for an equitable right or interest to be binding in unregistered land, must be registered on Land Charges Register, which constitutes actual notice to all persons
unless they receive the property as a gift, then it’s taken subject to equitable interest regardless of whether they have notice
puisne mortgage
a mortgage not protected by the deposit of the deed with the lender - second mortgage. Land Charges Register class C(i)
how are land changes on unregistered system registered?
against full name of property owner
Classes of charges on land charges register
c(i) - puisne mortgage
c(iii) general equitable charge like equitable mortgage
c(iv) estate contract
D(ii) restrictive covenant
D(iii) equitable easement
F: non owning spouse or civl partner stat right of occupation
Adverse possession for title to unregistered land
actual, physical and exclusive possession of the land for at least 12 years without permission from land owner
–>former owner cannot bring a suit to recover the land and squatter can apply for title with HMLR
When does application for first registration of land need to be made?
within 2 months of triggering event
otherwise reverts to seller
absolute freehold title
best class of title, proprietor takes the legal estate together with all interests that benefit estate
possessory title
based on factual possession of the land rather than documentary evidence (used when title deeds are lost or adverse possession)
Good leasehold title
used when freehold title has not been produced to HMLR on the application to register
Absolute leasehold title
awarded when HMLR inspected all superior leasehold titles and the freehold title
Property register - what’s on it
identifies property by postal address
specifies legal estate
indicates rights that benefit the property
Proprietorship register
specifies any restrictions on title and class of title held
Charges register
contains details of encumbrances on the land like legal easements and mortgages (both of which are third party rights that take effect at law only if registered- although could still take effect at equity)
Notice
relates to something that burdens the land, makes the interest binding when a notice is entered on register of title
ex: contract, covenant
Restriction
entered on register of title to prevent any dealing with the land other than in accordance with restriction’s terms
for ex: that holding as tenants in common
interests that override first registration
legal lease for 7 years or less (over 7 years has to be substantively registered)
implied legal easements if buyer knew of it/it would be obvious from reasonable inspection or its exercised within 1 year of disposition
interest belonging to person in actual occupation who has a property right unless occupier didn’t disclose it on enquiry or it was not obvious on inspection
adverse possession in registered land
can apply for registration after 10 years of exclusive, physical possession without permission but registered owner given chance to object
co-ownership of legal estate is held as:
joint tenants only: undivided, equal interest in the whole property with right of survivorship
but whenever land is held by more than one person, a trust of land automatically arises and co-owners have behind-the-scenes, beneficial equitable interests
no more than 4 legal owners who must be over 18
declaration of trust between co-owners
conclusively sets out how beneficial ownership is held
how to sever a joint tenancy and convert into TIC
-one tenant properly serves written notice
-party treats it as separate or deals with the equitable interest (selling, disposing, mortgaging)
-mutual agreement or course of dealings indicating intention
-bankruptcy of tenant, forfeiture
overreaching
so buyer can take free of beneficiary’s interest: pay purchase money to 2 or more trustees
alternatively, obtain written release from beneficiary of their rights, usually by having them sign the contract prior to exchange
What to do if co-owners can’t agree how or when to dispose of a property
s14 Trusts of Land and Appointment of Trustee Act: can apply to court for an order about trustee’s duties such as order to sell
s15 sets out factors court must consider: intentions of those who created the trust, purposes for which property is held, welfare of occupying minors
reversion
a landlord’s interest in the land that they have let - doesn’t have right of physical possession
assignment
when tenant disposes of their entire remaining interest in the lease
licence to assign
between landlord and assignee (who is taking up the rest of the tenancy) to create privity of contract between them
sublease
when tenant disposes of less than entire remaining interest in lease
lease between original tenant and landlord is head-lease
subtenant not in any privity of contract with landlord
essential characteristics of a lease
certainty of term
exclusive possession (if multiple tenants, must all be granted at same time in same document with same interest and right of possession)
appropriate formalities
rent not essential
reversionary lease
one that doesn’t take place until a later date
lease must be created by deed unless
3 years or fewer, which can be created orally without formalities if tenant takes possession at best rent
qualified alterations covenant
tenant can make non structural alterations with landlord consent, which should not be unreasonably witheld
absolute bar on alterations
prohibits tenant from making structural alterations, can ask the landlord but LL withholding consent doesn’t need to be reasonable
forfeiture remedy
right of a landlord to end a lease early and re-enter premises
only available if expressly included in terms of the lease
but still statutory protections for tenant like: right to settle arrears and apply for releif
landlord must serve notice specifying breach, provide reasonable time to remedy breach and set out any compensation payable to LL for breach
Jervis v Harris clause
self-help clause giving LL right to enter to make a repair if tenant breaches repairing covenant, LL gives tenant notice to do the work and tenant doesn’t comply
LL can recover costs of repair as a debt
Right to assign a lease
for leases made after 1995, tenants automatically released from covenants on assignment
so LL might require an Authorised Guarantee Agreement so they act as guarantor for immediate successor
for leases made before 1996, original LL and tenant remain liable to each other even after assignment unless they expressly release
assignment must be by deed
Qualified covenant against assignment
prohibits tenant from assigning unless LL consents or certain conditions are met
but LL cannot unreasonably withhold
Easements (which must benefit the land, not be a personal right) can be created by:
Express grant or reservation
Prescription: through long use - must show been exercising it without permission for 20 years without challenge
Implied grant or reservation:
-by necessity for a right of way
-by existing use if it is continuous, apparent on reasonable inspection, necessary for reasonable enjoyment of the land/enhances it and used by the seller on the date of conveyance
-by statute
Covenants: in equity the burden will pass if
it’s a restrictive covenant
that touches and concerns the land - benefits the land not person
was intended to run w the land
and successor has notice of the covenant
Covenants: in equity the benefit will pass if
the covenant touches and concerns the land or through annexation, by express assignment
Covenants: burden will pass by law if
generally doesn’t pass so need to obtain indemnity covenant from next buyer
cannot accept benefits without accepting burden that goes with it (for ex. pay for upkeep of road to be able to use it)
Covenants: benefit will pass by law if
covenant touches and concerns the land
was intended to run with the legal estate held by covenantee, who held it at the time covenant was made
the covenantee’s successor in title now holds legal estate
Mortgage redemption date
earliest date on which the loan can be repaid in full and property redeemed
mortgage is subject to which third party interests?
(interests that are superior if default and mortgagor sells property)
-legal tenancy of unreg land granted before mortgage
-legal tenancy of reg land of up to 7 years
-equitable tenancy of unreg protected as C(iv) land charge
-interest of an occupier who contributed to purchase price
-equitable tenancy of reg land of up to 7 years and tenant is in occupation
once legal mortgage is registered as a charge, mortgagee/lender has what rights if borrower defaults:
-sue for debt
-take possession (only through court is there is a dwelling) and exercise managerial powers
-foreclose (doesn’t arise until after contractual date for repayment): court order that transfers legal estate from borrower to lender
-sell the property: doesn’t require court order if redemption date passed and over 2 months arrears
What’s in the contract package?
draft contract
PIF
FCF
copy of seller’s title and title plan
any other relevant documents
additional documents in contract package for leaseholds
drat lease annexed to it
landlord’s freehold title
relevant planning permission and/or building regulation consent
service charge budget
details of any management company
a new build warranty if it’s less than 10 years old
additional docs for sale of existing lease
outgoing tenant’s leasehold title
existing lease
leasehold info form
copy of last 3 years service charge accounts
copy of landlord’s freehold title
SDLT chargeable on grant of new lease is based on?
lease premium paid and net present value of total rent payable over the lease term
