Land Law Flashcards
Who owns all the physical land in England?
The Crown
When is something a fixture?
There is a presumption that if something is attached to the building, it is a fixture. If it is moveable or resting on its own weight then it is considered a chattel
Who to transfer the freehold estate?
Completion of the deed, requirements
- must be clear that it is a deed
- validly executed
– signed by seller in prescence of witness
– witness signs to confirm they witnessed the signing of the deed
- deed must be delivered
*legal title in registered land does not transfer until registration
* legal title in unregistered land is transferred after deed and there is two months to register at land Registry
Enforcement of the statutory right of the non-owning spouse to occupy the matrimonial home in the registered and unregistered system
it is an statutory interest
formalities
- matrimonial home
- spouse or civil partnership
Enforcement in the unregistered system
- Class F land charge, if registered, it will bind
Enforcement in the registered system
- Interest affecting a reigstered estate
– needs registering as notice at land registry to bind
*not capable of being an orverriding interest
Is an easement capable of being legal?
Yes if the easement is for a specific period of time
- created by deed
If not granted for a specific period of time then it can be an equitable easement
- must be signed in writing
Can legal/equitable easements be enforced in registered and unregistered land?
In the unregistered system:
Legal easements bind the world
Equitable easements come under class D(ii) and so if registered at the land registry, then it will bind
In the registered system
- legal easement is a registrable disposition (only becomes legal when registered)
- equitable easement is an interest affecting the registered estate (needs registering at the land registry to be binding)
What are the characteristics of easements in Re Ellenborough?
- Dominant and servient tenement
- Dominant and servient must be owned occupied by different people
- Right must benefit the dominant tenement
- must be capable of forming the subject matter of the grant
What are the methods for creation of easements?
Express Grant
Implied creation on sale of part
Prescription
How is an easement created by express grant?
made by deed or in signed writing for an equitable easement
How is an easement implied on a sale of part created?
- strict necessity (mere inconvenience is not enough, is it necessary to have that right to use the land, usually only applies to landlocked land, electricity, sewage and drainage is not essential to land)
- common intention (if an easement is implied into a lease, it ends when the lease ends, the dominant land has been leased for specific purpose and easement is necessary for the purpose)
- rule in wheeldon and burrows (not possible for an easement to be impliedly reserved under this rule. The easement must be continuous and apparent, necessary for the enjoyment of land, being used as quasi easement by the seller before the sale of part)
- s62 LPA (must have been prior diversity of occupation of the dominant and servient land, informal permission or license must have been given to use the servient land in a specific way, there must be a conveyance, ALSO: implies easements into first lease or transfer deed if it has been a quasi-easement and is continuous and apparent)
What is the creation of an easement by prescription?
Continuous use for 20 years (lost modern grant): must be known to the land owner
What is the enforceability of express easements against servient owner?
The benefit of the dominant land will pass to new owners
Servient land: if an express legal easement is registered then it will bind the new owner of the servient land in registered system.
Unregistered land: easement binds the world and is an overriding interest
What is the enforceability of implied easements against servient owner?
Registered Land: implied legal easement will be an overriding interest provided that
*the easement is within actual knowledge
*obvious on reasonable inspection of the land
*it has been exercised with a year before the transfer of the servient land
Unregistered land: legal interest binds the word and as an overriding interest on first registration
How are easements enforceable?
In registered land by notice
In unregistered land by D(iii) charge
A purchaser will not be bound by an unprotected equitable easement. A volunteer will always be bound, whether the equitable easement is protected or not
What are the formalities and enforceability for a legal lease?
Registered Land:
A legal lease for over 7 years must be created by deed, must be registered for it to bind for it to be enforceable against third parties
if not registered, it may still bind as an overriding interest
What are registrable dispositions?
- Grant of Lease for MORE than 7 years
- Express Grant or Reservation of Legal Easements by deed (bind purchaser for valuable consideration)
- Grant of a legal mortgage by deed
- Forfeiture by deed
What are the interests protected by entry?
All equitable interests by the entry of a notice in the Charges Register of the burdened land. It will bind subsequent purchasers.
Including:
Restrictive covenants
Estate contracts (option for purchase, equitable lease, contract for sale)
Equitable Easement
Equitable leases
When is a new owner automatically bound by interests?
New owner of the burdened land if they are a donee will be automatically bound by any equitable interests regardless if they have been protected under the basic rule of priority
Where land is already registered, what are the overriding interest in Schedule 3?
Schedule 3 Para 1: Legal leases of seven years or less is an overriding interest
Schedule 3 Para 2: There must be an interest in land AND actual occupation
EXCEPTIONS:
- where the holder of the interest fails to disclose the interest (unless they do not know of it)
- if the occupation would not have been obvious and the interest is unknown to the purchaser
Schedule 3 Para 3: impled legal easement will be binding as an overriding interest if
- new owner knew about it
- new owner did not know about it but would have on reasonable inspection
- exercised within 12 months of the disposition
What is the principle of overreaching?
Applies to both registered and unregistered land
- must be paid to two trustees
How can a BIUT be protected in the registered system?
Entered as a restriction on the proprietorship register
If not registered then it will be an overriding interest if in actual occupation and have an interest in the land
IN unregistered land pre-1926, what effect to legal and equitable rights have on enforceability?
Legal interests bind the world
Equitable interests will not bind if a purchaser in good faith has bought the land without notice (Equitys darling): can be overridden where purchaser knew of the interest or should have known
In unregistered land post-1926, what effect do legal and equitable interests have on enforcebility?
Legal interests bind the world (except pusine mortgage which must be registered as a land charge)
Majority of equitable interest must be registered as a land charge except
- equitable interest of trusts which have not been overreached
- equitable easements and restrictive covenants created pre-1926
*the doctrine of notice will apply to these interests
What is the general rule on the passing of benefit and burden of freehold covenants at common law?
At common law the benefit can be passed on by the burden will not pass.
As the burden does not pass, the original covenantor should require its successors to enter an indemnity covenant
What is the general rule on the passing of the burden of freehold covenants in equity?
Because the burden does not run at common law, equity formulated a way for the burden to run.
The requirements are
- Covenant must be restrictive
- Covenant must accommodate the dominant tenement
- There must be intention for the burden to run
*expressly or impliedly
- There must be notice of the covenant
When can the burden of freehold covenants at common law pass?
Where the covenantee grants a benefit in the nature of an easement and imposes a connected burden (ie easement to park but contribution to parking maintenance)
- there must be a genuine choice to take the benefit
What are the formalities of a legal mortgage?
Deed and Registration
How do you create an equitable mortgage?
failed attempt at a legal mortgage
only has an equitable interest in the land instead of a legal interest
What are the basic rights of equity of redemption?
Equitable right to redeem the loan
Protection from clauses which postpone or prevent
Protection from clauses which give collatoral advantages to the lender
Protection from unconscionable terms
What is the order of priority for legal mortgages and equitable mortgages?
For legal mortgages the order is the date of registration
For equitable mortgages the order is date of creation
What are the formalities for the creation of a lease?
Legal lease must be made by deed. Over seven years must be registered. Seven years or less can be an overriding interest.
Lease less than three years need not be created by deed if
- takes effect in possession
- market rent
- not subject to fine or premium
In old leases, pre-1996, what is the enforceability?
Original landlord and tenant continue to remain liable even after assignment
In new leases, post 1996, what is their enforceability?
Original landlord and tenant will not be automatically liable.
*not liable for personal covenants
