Land Law Flashcards
What is real property?
Land or an interest in land
What is personal property?
Tangible items - car /refrigerator
What are the 2 classes of personal property?
Choses in Possession
Choses in Action
What is a chose in possession?
Physical moveable things such as a car
What is a chose in action?
Rights which do not have physical evidence such as debts and patents
What are corporeal hereditaments?
Tangible items of land such as the surface, buildings, mines and minerals, trees, plants, air above the surface ground below the surface, fixtures
What are incorporeal hereditaments?
Intangible parts of land such as any rights, easements and rents
What is the theory of land ownership?
Own up to the heavens and to the centre of the earth
What is the extent of land ownership in practice?
Landowner is allowed rights in the airspace only for the height necessary for ordinary use and enjoyment of the land and structures on it
Is a freeholder entitled to all minerals under his land?
No, ownership of coal, oil and natural gas is laid down by statute and the Crown is entitled to any golds, silver and treasure found under the land
Does a landowner own wild animals on their land?
No but they do have the right to hunt them
Does a landowner own the water running through their land?
No however subject to the appropriate licence can use the water
Does the landowner have the right to develop their land?
Yes subject to planning control
What is a fixture?
Objects are annexed to the land or a building so they become part of the land
What is a fitting
Objects which do not become part of the land are just merely there
What is the importance of the difference between a fitting or fixture?
A fixture will remain and a fitting will be removed on completion
What are the 2 tests to determine whether an item is a fitting or fixture?
- Degree of Annexation
2. Purpose of Annexation
What is the Degree of Annexation Test?
The greater the degree of attachment to the land, the more likely the item is to be a fixture.
What is the Purpose of Annexation test?
Looks at whether the item was brought onto the land with an intent to make a permanent improvement or only temporary one.
Who is the owner of an area of land?
The Crown owns all land in England and Wales
What is a freehold estate?
An estate which is for an uncertain duration and someone does not know when it was created or when it will end
What is a fee simple absolute possession?
Freehold ownership of land
What is a leasehold estate?
Ownership in land for a fixed maximum duration.
What is a common hold estate?
Makes it easier for common hold owners to comply with positive covenants.
What 3 conditions does the creation of a common hold estate require?
- Freehold estate must be registered as a freehold estate in ‘common hold land’
- Land must be specified in Memorandum of Commonhold Associations as land in relation to which the Association is to exercise functions
- There must be a common hold community statement which makes provision for the rights and duties of the Association and of the unit holders
What are the 2 legal estates?
Freehold and Leasehold
What are the 5 legal interests?
Mortgage Easements Rentcharges Profits a prendre Rights of entry
What is a mortgage?
A loan secured against the property which entitles the lender to certain rights including the right to sell the property upon default
How can a legal mortgage be secured?
By deed
What is an easement?
A right which exists over a piece of land which benefits a different piece of land
What is a servient tenement?
The person who owns the land over which an easement is granted
What is a dominant tenement?
The person who owns the land who benefits from the easement
What is a rent charge?
An interest in land requiring the landowner to make periodic payment in respect of land to the rent charge owner.
What rights do a rent charge owner have?
A right of entry which means in the event of the death of rentchargee the owner may enter the premises
What is an estate rentcharge?
Where a new estate is being implemented, a rent charge is put in place to cover the cost of maintenance of common areas
What is a profit a prendre?
Interest in land enabling someone to take something from the land of another
What are the 2 types of profit a prendre?
In gross
Appurtenant
What is a profit a prendre in gross?
A right exercised for the personal benefit of the owner and can be brought and sold independently to land.
What is a profit a prendre appurtenant?
The right is attached to a particular piece of land in the same way as an easement.
What are rights of entry?
Right to enter a property (usually in a lease)
When would an equitable interest be created?
Where the formalities of a deed aren’t properly executed
What are the 4 types of equitable interests?
Equitable mortgage
Restrictive covenants
Postitive covenants
Estate contracts
What is an equitable mortgage?
An agreement to create a mortgage not secured by deed however requires sufficient evidence in writing to its terms
What is a restrictive covenant?
A covenant that is negative in nature that can be enforced against a later owner of a burdened land
What are positive covenants?
A covenant that is positive in nature (for the landowner to do something)
What is an estate contract?
Where a person enters into an agreement to buy land, the person is deemed to have an equitable interest in the land from the date of the contract.
What would an option to purchase land be classed as?
As an estate contract
What are the requirements for the creation of a legal and equitable interests?
Valid contract
Valid deed
What are the elements of a valid contract for the creation of legal and equitable interests?
- Offer by one party and acceptance by another
- Consideration
- Intention to create legal intentions
- Parties with legal capacity
- Must be in writing and include all terms parties have agreed to
- Be signed by all contracting parties or someone with authority
What are the elements of a valid deed for the creation of legal and equitable interests?
- In writing
- Clearly intended to be a deed
- Duly executed as a deed
- Signatures witnessed
When would a deed not be required to create a legal or equitable interest?
Assents by personal representative
Disclaimers made under the Insolvency Act 1986
Surrenders by operation of law including surrenders which may be affected without writing
Leases, tenancies or others assurances not required by law to be made in writing
What is the process of ‘deducing title’?
Proving the seller owns the land they are selling
How can a title be deduced for unregistered land?
By providing a good root of title and demonstrate an unbroken chain of ownership
How long must a root of title be in order to be satisfactory?
15 years
What are the 4 documents that can be used to evidence the root of title?
Conveyance - when a person purchased the land
Deed of Gift - no money exchanged
Mortgage Deed - mortgage granted to current owner
Assent - transfer from personal respresentative to correct beneficiary of the land
For a root of title to be classed as a ‘good’ root of title, what must the document provide?
Be at least 15 years old
Deal with whole legal and equitable interest in the property
Contain adequate description of the property
Do nothing to cast doubt on the title
What is the epitome of title?
A chronological list of documents with a copy of each document attached to the epitome.
When will the original documents for registration be sent to the buyers solicitors?
On completion
What is the process of investigating title?
Checking the documentation provided to ensure a seller owns what they are purporting to sell
What are requisitions in an unregistered transaction?
Any queries raised about the title by the buyers solicitors
When does the title to unregistered land pass to the buyer?
On completion
What is the time limit for first application for registration to be made after completion?
2 months
Will a buyer be subject to legal interests affecting the title?
Yes
Where would the legal interests in a unregistered title be found?
By checking the deeds and possible by inspection of the property
Will a buyer of an unregistered land be bound by equitable interests?
Only if they have been made aware of them
How can equitable rights and interests be protected?
By registration at the Land Charges Department
What category would a puisne mortgage be registered?
C(i)
What category would a limited owners charge be registered?
C(ii)
What category would a general equitable charge be registered under?
C(iii)
What category would an estate contract be registered under?
C(iv)
What category would an interest relating to tax paid in death fall?
D(i)
What category would a restrictive covenant fall?
D(ii)
What category would an equitable easement fall?
D(iii)
What would a class F Land Charge protect?
Non-owing spouse’s statutory right of occupation of the matrimonial home under the Family Law Act 1996
What is the doctrine of notice in unregistered land?
A buyer will not be bound by an equitable interest if they can show:
- They acted in good faith with genuine and honest absence of notice
- They were a purchaser for value
- They acquired legal estate or legal interest
- They had no notice of the equitable interest
What are the 3 ways notice of a legal or equitable interest can arise?
- Actual Notice
- Constructive Notice
- Imputed Notice
What is actual notice of an equitable interest?
The person must had had actual knowledge of the equitable interest
What is constructive notice of an equitable interest?
If the buyer made a reasonable enquiry, they would have discovered for themselves the interest
What is imputed notice of an equitable interest?
Notice given to an ‘agent’ of the buyer will be deemed to be notice given to the buyer themselves
What interests override first registration?
- A lease granted for 7 years or less
- Legal easement
- Local land charge
- An interest belonging to a person in actual occupation so far as relating to the land they occupy
What is adverse possession?
Process of acquiring title to land by dispossessing the previous holder and occupying the land
What does the Limitation Act 1980 provide regarding adverse possession?
If someone with an estate in land allows it to be occupied by someone else for 12 years, they will lose the right to recover the land
What will an application for adverse possession have to show?
They have actual possession of the land
Possession is exclusive to the applicant
Possession is without the permission of the landowner
What title will be granted if an application for possessory title is successful?
Possessory title
What is a triggering event for first registration?
Conveyance of sale of freehold land
Assent
Deed of gift
Grant of a lease for term exceeding 7 years
Assignment of a lease having an unexpired term of exceeding 7 years
What is the effect of failing to register an unregistered property after 2 months of a triggering event?
The transfer is void and the legal estate reverts back to the seller
Can the 2 month registration period for unregistered land be extended?
Yes, if there is a good reason to do so
What are the 5 classes of title that can be awarded by HMLR?
- Absolute Freehold Title
- Qualified Title
- Possessory Title
- Good Leasehold Title
- Absolute Leasehold Title
What is absolute freehold title?
The registered proprietor takes the legal estate together, with all interests subsisting for the benefit of that estate
What interests is a absolute freehold title subject to?
Interests which are entered onto the register
Overriding interests falling with the LRA 2002 Sch 1
What is a qualified title?
Where a specified interest is excepted from the registration and therefore is not covered by the guarantee of title which would otherwise be available
What is a possessory title?
Based on factual possession of the land rather than documentary evidence
Can a title be upgraded?
Yes if someone can show a better class of title
What is a good leasehold title?
Where the freehold title of a leasehold property has not been produced to HMLR. The proprietor is subject to any rights or obligations contained in the freehold title
What is an absolute leasehold title?
HMLR will award this title where it has inspected all superior leasehold title and the freehold title
What interests can be substantively registered?
Rentcharges
Franchises
Profits a Prendre in Gross
What does it mean if an interest is substantively registered?
Allocated their own title number and register
What is a caution against first registration?
When an application for registration is submitted, those with an interest will be notified so their interest can be investigated.
What dispositions must be registered to be effective?
Transfer of freehold estate
Grant of legal lease for more than 7 years
Express grant or reservation of legal easements, legal profits and legal rentcharges
First legal mortgage
Certain other leases
What is a notice on the register?
An entry in respect of the burden of an interest affecting a registered estate or charge
What are the 2 types of notice?
Agree notice
Unilateral notice
What is an agreed notice?
Does not require consent of the registered proprietor and HMLR will require strict evidence of the interest to which the application relates
What is a unilateral notice?
Registered without notice to the registered proprietor and the applicant must complete a UN1 confirming the grounds the notice is being made.
What is a restriction?
An entry on the register which can be used to prevent dealing with the land otherwise than in accordance with the restriction
Are overriding interests binding on proprietor and any interest holder?
Yes, despite the fact they do not show on the register
What are the 3 interests that override registered dispositions?
- Legal leases for 7 years or less
- Legal easements or profits a prendre
- Interests of persons in actual occupation
How can legal leases of between 3-7 years be protected?
Entry of a notice
How must a lease for over 7 years be registered?
In its own title
When will an unregistered legal easement be capable of having overriding status?
It must either be registered under the Commons Act 2006 or be known to the buyer or obvious on careful inspection
When will an occupier not have an overriding interest?
When the buyer has made an enquiry of an occupier and they have failed to disclose their occupation or if the occupation was not evident on reasonable inspection
What will the court take into consideration when deciding whether a person was in actual occupation of a property?
- Degree of permanence and continuity of presence
- Intentions and wishes of person concerned
- Length of any absences and the reason for absence
- Nature of property
- Personal circumstances of the person concerned
If an interest is registered, can this be overriding?
No as it is protected on the register
Can the rights of occupation by a non-owning spouse of civil partner be overriding?
No, these must be registered as a home right as a notice on the register
For registered land, how long must the applicant show exclusive possession to be successful in an application for adverse possession?
10 years
If an application for adverse possession is opposed, what is the effect?
Likely to be rejected
If a property is held by more than one person, how is this held?
On trust for each other.
What is joint tenants?
Each trustee does not own a distinct share and the share is passed to the surviving trustees upon death
What is the maximum number of trustees per legal estate?
4
What are the requirements of a trustee of land?
Over 18 and of sound mind
What is tenants in common?
Each trustee is entitled to a specific share of the property which can be disposed of or left by will or on intestacy
Is the doctrine of survivorship applicable to joint tenants?
Yes
Is the doctrine of survivorship available in tenants in common?
No
What is a declaration of trust?
Sets out an agreement between co-owners as to how the beneficial interest of the property is to be held.
What are the 7 methods of severance of joint tenancies?
- Written Notice
- Treating Shares as Separate
- Disposal of Equitable Interest
- Mutual Agreement
- Course of Dealings
- Forfeiture
- Bankruptcy
What is the process of severance of joint tenancy by written notice?
One tenant must give the other written notice of their desire to sever the tenancy.
What are the requirements of a sufficiently served notice of severance of joint tenancy?
Left at last known place of residence or business in UK
Sent by registered post at their place of residence or business
What is the process of severance of joint tenancy by forfeiture?
If one tenant killed the other, the right to survivorship would not operate, as the perpetrator cannot benefit from their crime
What is the process of severance of joint tenancy by bankruptcy?
If a joint tenant is declared bankrupt, this severs the bankrupt’s beneficial interest and convert s that interest into a tenancy in common
What will the courts take into consideration when deciding whether the parties have created a joint tenancy?
The intention of the parties however if this cannot be deduced the court will presume equity follows the law
What will the grant of a lease prevent the landlord from doing?
Obtaining physical possession of the property
Once a lease is granted, what is the freehold interest known as?
Reversion
What is an under lease?
Where a tenant grants another lease for a lesser term
What is a headlease?
The main lease between the landlord and the tenant
Wha are the 5 common types of leases?
Fixed term tenancies Reversionary Leases Periodic tenancies Tenancies at will and contractual periodic tenancies Leases void for uncertainty
What are fixed term tenancies?
A term of a fixed amount of time
Can a lease be terminated early?
Only if it contains a break clause
Can rent be adjusted during the lease term?
Only if the lease specifies so
What is a reversionary lease?
Where the tenant does not take possession straight away and will take place sometime in the future
When would a reversionary lease not be valid?
Where the period between the lease being entered into and the tenant taking possession exceeds 21 years
What are the 2 types of periodic tenancies?
Express periodic tenancies
Implied periodic tenancies
What is an express periodic tenancy?
A tenancy which is for a period and then can be renewed after the end of each period.
What is an implied period tenancy?
If the parties have not entered into a written agreement, a court may imply a periodic tenancy provided the tenant has gone into possession and started to pay rent.
How will the relevant period be determined in an implied periodic tenancy?
The period on which rent is quantified
What is a tenancy at will and contractual periodic tenancy?
The owner of land may allow a buyer to take possession of the land before entering into any written agreement to sell.
What are leases that are void for uncertainty?
The lease must make it clear at the date of the agreement when the term of the tenancy will begin and end. If not certain, the lease will be void.
What is the requirement of the creation of a lease?
A Deed
When can a lease be granted without a Deed?
A short lease for 3 years or less can be created orally or in writing if:
- The tenant takes possession of the leased premises
- It is the best rent which can be reasonably obtained without a fine
What is an equitable lease?
A lease that has not been created by deed and is not within the provision of a short-term lease as along as it is writing
How must an equitable lease be registered?
C(iv) Land Charge
What is a licence?
A personal right to use land in some way.
What is a lease?
Legal agreement by which money is paid to the landlord by the tenant in order to use land
What are the 3 characteristics required for a lease or tenancy to exist?
- Exclusive possession
- For a fixed or periodic term
- In consideration of a premium
What is a covenant?
A promise to do or not to do something
What are prescribed clauses?
A set of standard clauses contained at the front of the lease and a summary of the key provisions.
What leases are not required to contain prescribed clauses?
- Leases made before 19th June 2006
- Leases made by court order
- Leases made under statute
- Leases where the appropriate consent or licence for the grant of lease was given before 19th June 2006
What are the 11 main covenants contained in a lease?
Term Payment of rent Quiet enjoyment Repair Use of the premises Alteration of the premises Insurance Service Charge Not to Derogate from Grant Other Key Terms Forfeiture
What is the term of a lease?
The length of time that the lease is going to run
What is the payment of rent in a lease?
The lease will specify the amount of rent payable by the tenant and when it is payable. The lease can also reserve other payment such as service charge
What is the provision of quiet enjoyment in a lease?
Ab obligation imposed on the landlord that they must interfere physically or any other way with the tenant’s enjoyment of the property, nor allow the lawful activities of his other tenants to do so
What is the repair clause of the lease?
Will confirm whether the landlord or tenant will be liable for the repair of the repair
What is the clause regarding the use of the premises in a lease?
A covenant will specify what the tenant can use the premises for
What is the clause regarding the alteration of the premises?
Terms of the lease will govern how the landlord will control alterations
What is the clause regarding insurance in the lease?
The lease must specify whether the landlord or tenant are to insure the building
What is the clause regarding service charge in a lease?
If there are shared serviced, the landlord or management company will covenant to provide these services and the tenants will covenant to meet a proportionate cost of those services
What is the clause in a lease regarding not to derogate from grant?
This is a landlord covenant which is an obligation not to frustrate the purpose for which the premises were let
What are the other key terms of a lease?
Rights over other parts of the building and landlord enforcing covenants against other tenants
What is the clause in the lease regarding forfeiture?
The right for the landlord to bring the lease to an end in the event of default
Can the right of forfeiture being implied into a lease?
No
What are the remedies for non payment of rent?
Commercial Rent Arrears Recovery
Forfeiture
What is the Commercial Rent Arrears Recovery?
A statutory procedure which allows landlord of commercial premises to recover rent arrears by taking control of the tenant’s goods and selling them
What leases does the Commercial Rent Arrears Recovery apply?
All commercial leases from 6th April 2014 whether or not referred to
What notice must a landlord provide for enforcement under Commercial Rent Arrears Recovery?
7 days’ notice
After the notice period of Commercial Rent Arrears Recovery, what happens?
Bailiffs can enter the property to seize the tenants goods
When the Commercial Rent Arrears Recovery not be used?
When there is a residential element to a lease
What remedies are available upon breach of a repairing covenant?
Damages Specific Performance Self-Help Forfeiture Debt Action Pursue Guarantors and/or Rent Deposit
What is the remedy of forfeiture of lease?
Right of landlord to re-enter the premises and bring the lease to an end early due to default by the tenant
When can a landlord’s right to forfeiture be waived?
By having knowledge of a breach and taking no steps to remeduy
What is the remedy of damages for breach of a repairing covenant in a lease?
A monetary sum awarded for breach of contract to compensate the injured party and put the claimant in the same position if they had been had the contract been performed
What is the remedy of specific performance for breach of a repairing covenant in a lease?
An equitable remedy available for breach of contract that compels a party to perform its contractual obligations
What is the remedy of self-help for breach of a repairing covenant in a lease?
The innocent party has the option to carry out the repairs and claim the cost from the defaulting party
What is a remedy for Jervis V Harris Clauses?
Self-help clauses
What is the process of initiating forfeiture proceedings by the landlord?
Must serve a S246 notice which must specify the breach, require the breach to be remedies within a reasonable time, require the tenant to pay compensation to the landlord for the breach
What is the remedy of debt action for breach of a repairing covenant in a lease?
A landlord can bring court proceedings for debt action if rent or other money due under the terms of the lease are owed
What is the remedy of pursuing guarantors and/or rent deposit for breach of a repairing covenant in a lease?
A lump sum can be taken by the landlord at the start of the tenancy and can be used in the event of a default. A guarantor will also be liable for any breach.
What are the requirements of a sublease?
Must be for less time than the headlease
Are the clauses in a headlease enforceable against a subtenant?
No
Who is liable if the subtenant breaches a covenant in the headlease?
The original tenant
What is an absolute covenant?
A total bar to a certain action
What is a qualified covenant?
Covenant imposed based on strict conditions and prohibits any actions unless the landlord consent is provided.
Can a landlord’s consent be unreasonably withheld?
No and it must be given within a reasonable time
How must assignment be carried out?
By deed signed by the tenant, landlord and incoming tenant
What is the effect of assignment?
The incoming tenant takes responsibility for performance if the tenants covenants within the lease which has been assigned and both landlord and incoming tenant can enforce clauses in the lease
What is the effect of assignment when the landlord refuses consent?
This will be a breach of covenant. Assuming the tenant feels the landlord’s reason for withholding consent are unreasonable, the best course of action would seek a declaration of the court that the conduct of the landlord is unreasonable
What is the effect if the headlease is assigned on the sublease?
The sublease remains valid
What are the 5 ways a lease can be terminated?
Expiry of the term By Notice Surrender and Merger Forfeiture Frustration
What is the process of termination of a lease by expiry of the term?
Lease will automatically come to an end at the end of the lease term even where the tenant has an option to rent for another period
What is the process of termination of a lease by notice?
Each party can serve a notice on the other party.
What is the required length of notice for the termination of a lease?
One full period
What is the process of termination of a lease by surrender and merger?
If there is a fixed term tenancy without a break clause, neither party may being the tenancy to an end unilaterally before the term has expired
What is the surrender of a lease?
Parties agree tenant will give up possession to the landlord
What is merger of a lease?
The parties agree the landlord will transfer the reversion to the tenant
What is the process of termination of a lease by frustration?
Brings to an end a party’s obligation under a contract if an event occurs due to the fault of neither party rendering the contract impossible to perform
What is the general rule of the effect of termination of a headlease on a sublease?
The sublease will come to an end as well
When would a sublease not end at upon termination of the headlease?
Surrender - subtenant will become tenant of the landlord
Merger - subtenant will become tenant of the original tenant
What are the essential characteristics of an easement?
- Must be both servient and dominant tenement
- Easement must benefit dominant tenement
- Dominant and servient tenement cannot be the same people
What are the legal requirements to create a legal easement or profit?
Must be equivalent to fee simple absolute or term of years absolute
Must be created by deed
When would a legal easement or profit be effective even though created without deed?
- In writing
- Signed by both parties
- Contains all agreed terms
What are the 2 ways easements can be created?
- Express grant
2. Implied grant
What are expressly granted easements?
The landowner granting rights to benefit another’s land
What are impliedly granted easements?
Comes into existence when there is a sale of part of a landholding and the parties to the transaction have not expressly created the required easements
What are easements by necessity?
Will be implied to aa piece of land that is ‘landlocked’ so the owner can gain access
What are intended easements?
They are implied to give effect to what both parties intended
What are ancillary easements?
Arises from the realties of the circumstances, an easement that allows for the fulfilment of some other interest
What are easements implied by existing use?
On sale of part of a landholding those easements will pass which are:
- Continuous and apparent
- Necessary to be the reasonable enjoyment of the land acquired
- Had been and were at the date of the conveyance, used by the seller for the benefit of the land now being sold
What is an easement granted by prescription?
If the right has been exercised over a long period of time
What are the requirements for an easement by prescription?
A party must show they have:
- Used the benefit unchallenged for over 20 years
- Used the benefit ‘as of right’ (did not ask for permission or make any payment for the use of the benefit)
What are the 3 ways to obtain a right by prescription?
- Common Law
- ‘Lost Modern Grant’
- By Prescription Act 1832
How can an easement by prescription be obtained by common law?
A right is presumed to have a lawful origin if it has been used ‘from time immemorial’ effectively a rebuttable presumption from immemorial use from 20 years’ use as of right
How can an easement by prescription be obtained by ‘Lost Modern Grant’?
A fiction by the courts which recognises that if a claimant can show actual enjoyment for 20 years, the court is willing to pretend there was one a grant that has now been lost
How can an easement by prescription be obtained by Prescription Act 1832?
The statutory means of acquiring an easement based on either 20 or 40 years’ use and the provisions are complex
Under normal principles of contract law, who is liable for freehold covenants after transfer by the original covenantor?
The original conventor
When will a benefit of the covenant be enforceable by the sellers successor in title?
When:
- The covenant must benefit the land itself and not merely be a personal right
- The covenant was intended to run with the legal estate
- At the time the covenant was made, the covenantee held the legal estate in the land to be benefitted
- The assignee of the original covenantee now holds the legal estate
What are the 3 ways a buyer of a benefitted land can enforce a restrictive covenant?
- Annexation - intended to attach to the land
- Express Assignment
- Under the rules relating to building schemes - means that a scheme of development has been set up when an estate is built
What are the 5 methods of enforcing a positive covenant?
- Grant a lease
- Setting up a commonhold scheme
- Chain of indemnity covenants
- Rights of re-entry coupled with a rent charge
- The benefit and burden rule
How can granting a lease help enforce a positive covenant?
If the properties are suitable, it might be appropriate to grant a lease, as the burden of negative and positive leasehold covenants run with the land due to privity of estate
How can a chain of indemnity covenants help enforce a positive covenant?
If the original covenanter and each successive successor in title of the servient tenement obtain an indemnity covenant from the next buyer, they continuing liability of the original Covenanter can be offset by the chain of liability.
What are the 2 ways a legal mortgage can be made?
- By demise
2. Legal Charge
How can a legal mortgage be made by demise?
A mortgage is made in the form of a long lease of the mortgagor’s land to the mortgagee with the provision that the lease will come to an end when the mortgage is redeemed and all capital interest is repair
How must a legal charge be created?
By deed
What are the 3 ways an equitable mortgage can be created?
- A mortgage expressed to take effect in equity only
- By a contract to create a legal mortgage
- Where a mortgagor owns equitable interest only
How is a legal mortgage protected in registered land?
Registered on the title and shown in the charges register
How are equitable mortgages protected in registered land?
Before 2002 - protected by notice or caution being placed on register
After 2002 - Protected by notice or restriction
How will the first mortgage of unregistered land be protected?
Lender retains the title deeds to the property until charge is redeemed
How is a second charge of unregistered title be protected?
Registration of a puisne mortgage (class C (i) land charge
How is an equitable mortgage secured in unregistered land?
Registration as a class C(iii) land charge
How should a company mortgage be protected?
Registered at Companies House within 21 days of creation of the charge
What are the 2 situations where a mortgagor might not be able to obtain vacant possession on repossession?
Tenants
Co-Owners
If there was a legal tenancy of unregistered land granted before the mortgage was created, will a mortgagee be bound by it?
If the tenancy was less than 7 years, yes
If the tenancy is for more than 7 years, and the lease is not registered it will not be bound.
If there was a legal tenancy granted after the mortgage was created, will a mortgagee be bound by it?
The mortgage lender is required prohibits the creation of the tenancies without the lender’s consent and therefore the mortgagee will not be bound by an unauthorised tenancy
If there was an equitable tenancy of registered land granted, will a mortgagee be bound by it?
If it does not exceed 7 years it is not an overriding interest. As long as the tenant is in occupation, his interest would then override that of the mortgagee
What are the 5 remedies available for a legal mortgage ?
1 Sue for the debt 2 Take possession 3 Foreclose 4 Sell 5 Right to appoint receiver as agent of mortgagor
What is the process of the remedy of suing for debt for a mortgagee to enforce their security?
Any time after the date of fixed payment, the mortgagee may sue for the money lent
What is the process of the remedy of taking possession for a mortgagee to enforce their security?
The mortgagee may obtain possession at any time, however if the mortgaged land includes a dwelling, possession can only be sought through the courts
What is the process of the remedy of foreclosure for a mortgagee to enforce their security?
The right to redeem is extinguished and the mortgagee becomes the owner of the property,
What is the process of the remedy of selling for a mortgagee to enforce their security?
Mortgagee has the power to sell the mortgaged property without the need to apply to the court, provided the mortgage was created by deed and contractual date set to redeem the mortgage has passed.
What are the conditions of whether a power of sale can be ordered by a mortgagee?
- Interest payments are more than 2 months in arrears
- There has been a written request for repayment of the capital and three months have passed without payment
- There is a breach of some other term the mortgage
What rights does an equitable mortgagee have?
- To sue for debt
- To take possession
- To foreclose
- To sell
- Right to appoint a receiver
What is postponement of a charge?
Where two or more lenders agree between themselves to vary their priority of their respective charges.
What is a further advance of a mortgage?
A charge can secure not only the present sum lent, but also any further advances
