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FLK2 > Land Law > Flashcards

Land Law Flashcards

1
Q

Legal framework

A

Law of Property Act 1925

Land Registration Act 1925/2002

Land Charges Act 1925

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2
Q

Classification of property

A

Real property: land or an interest in land

Personal property: personal items e.g. car
1. Rights: debt or patent
2. Shows in possession: moveable items

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3
Q

Land

A
  1. Land itself
  2. Buildings on land
  3. Trees and plants
  4. Mines and minerals below the land
  5. Airspace above land (only to a height reasonably necessary)
  6. Fixtures on land

Limitations:
1. Not entitled to all mines and minerals
2. Coal, oil, and gas is governed by statute
3. Gold and silver is owned by the Crown
4. Landowner can hunt wild animals but cannot own them
5. Landowner needs a licence to take water

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4
Q

Corporeal hereditaments

A

Tangible things

Surface of the land, buildings, parts of buildings, mines, minerals, trees and plants

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5
Q

Incorporeal hereditaments

A

Intagible things

Rights, easements and rents

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6
Q

Fixtures

A

Part of the land

Pass automatically on sale

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7
Q

Fittings (chattels)

A

Not part of land

Do not pass unless mentioned

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8
Q

Fixtures vs fittings: two tests

A
  1. Degree of annexation:
    - Greater attachment = fixture
    - Easy to remove = fitting
  2. Purpose of annexation:
    - Permanent improvement = fixture
    Example: freestanding fixture deemed to be a fixture despite being a moveable item it is part of architectural design
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9
Q

Ownership

A

Crown owns all land

“Owner” holds an estate in land

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10
Q

Legal estates in land

A
  1. Freehold estate:
    - Fee simple absolute in possession
    - Right to use piece of land indefinitely
  2. Leasehold estate
    - Term of years absolute
    - Fixed maximum duration
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11
Q

Interest in land

A

Right over land belonging to another

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12
Q

Five legal interests in land (MERRP)

A
  1. Mortgages
  2. Easements
  3. Rentcharges
  4. Right of entry: attached to lease or rent charge
  5. Profit a prendre e.g. right to fish, take timber etc.
    5a. in gross: not attached to piece of land - saleable in it’s own right - owner of land can sell right without selling land
    5b. appurtenant: attached to piece of land - sold with land when land is sold
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13
Q

Equitable interests

A

If attempt to create legal interest fails equitable interest may still arise

  1. Equitable mortgage
  2. Restrictive covenant: promise not to do something that is attached to land e.g. not to build more than one house on the land
  3. Estate contract
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14
Q

Formalities for the creation of interests

A

Contract for sale of land MUST be in writing

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15
Q

Valid deed

A
  • In writing
  • Intended to be a deed
  • Executed as a deed: signed, witnessed, delivered

Used to create an interest or right in land

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16
Q

Attestation clause = signature clause in a deed

A
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17
Q

Deducing title

A

Seller proves ownership of land through documentary evidence

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18
Q

Proving ownershhip

A
  • Good root of title
  • Unbroken chain of ownership
  • Minimum period of 15 years

Examples:
- Conveyance on sale
- Deed of gift
- Mortgage deed
- Assent

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19
Q

Requirements of good root of title

A

Often document from which your title needs to start

  • Document must be at least 15 years old at the date of the contract
  • Must deal with the whole legal and equitable estate
  • Must contain an adequate description of property
  • Must not cast any doubt on the title
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20
Q

Epitome of title

A

Chronological list of documents of title with copies attached

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21
Q

Legal interests

A

Buyer is bound irrespective of notice

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22
Q

Equitable interests

A

Buyer bound only with notice

Registration constitutes notice, so a subsequent buyer of property subject to an equitable interest will be bound by that equitable interest if it is registered

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23
Q

Classification of land charged

A

C(i) - puisne mortgage: mortgage where the lender doesn’t hold the title deeds

C(iv) - estate contract

D(ii) - restrictive covenant

D(iii) - equitable easement

F - home occupation rights

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24
Q

Registration of land charges are against the estate owners name and not against the address of the property i.e name and not land

A
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25
Q

Interest in land charges class

A

Registration = notice

Must be registered to bind

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26
Q

Doctrine of notice

A

Take free of equitable interest

If…
- Good faith
- Buyer for value
- Acquired legal interest or estate
- No notice of equitable interest

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27
Q

Three types of notice that make an equitable interest binding on a buyer

A
  1. Actual notice
  2. Constructive notice: whatever a reasonable inquiry of land would have revealed
  3. Imputed notice: agent knew about an interest that knowledge would be imputed to the buyer as well
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28
Q

Unregistered interests which override first registration

A

Automatically binding when unregistered title becomes registered

Bind buyer despite the fact the buyer didn’t know about them

  1. Legal easement
  2. Local land charge
  3. Lease granted for 7 years or less
  4. Interest of someone in actual occupation
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29
Q

Registration of title to land

A

Create a register of title

  1. Property register: address, type of legal estate, rights benefitting property
  2. Proprietorship register: holder of legal estate
  3. Charges register: rights burdening property
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30
Q

First registration of land

A

After 1 December 1990 required on triggering event

Triggering events:
1. Conveyance on sale
2. Assent
3. Deed of gift
4. Grant/assignment of 7+ year lease

Register within 2 months of triggering event

If not registered sale becomes void and legal estate reverts to seller

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31
Q

First registration: classes of title

A
  1. Title absolute (freehold and leasehold): best form of title, estate and all benefiting interests
  2. Qualified title: title qualified in some way (not perfect in some way)
  3. Possessory title: based on possession of land, NOT on production of documentary evidence e.g. squatter makes application for registration by virtue of adverse possession
  4. Good leasehold title: own leasehold title but no documents for landlord’s freehold title can be upgraded to absolute title if landlord’s freehold title is evidenced
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32
Q

Curative effect of registration

A

Process of upgrading possessory title to title absolute

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33
Q

Substantive registration

A

Estate gets own register and title number

Estates that can be substantively registered”
1. Freehold
2. Leashold
3. Rent charges
4. Profts a prendre in gross

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34
Q

Caution against first registeration

A

If a third party registers their interest in unregistered land then they will be notified when the land is first registered so they can then formally register their interest

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35
Q

Caution against first registeration

A

If a third party registers their interest in unregistered land then they will be notified when the land is first registered so they can then formally register their interest

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36
Q

Dispositions after first registration

A

All other title deed and documents cease to have effect and become known as preregistration deeds

After first registration any depositions, any subsequent dealing with the land has to be perfected by registration

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37
Q

When title passes

A

In unregistered system:
- On completion

In registered system:
- On registration

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38
Q

Third-party interests in registered land

A

Appear in register of title

Notices: for burden affecting land

Restriction: to restrict registration of certain dealings with land

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39
Q

Overriding interests (third-party interests that override registration)

A

Only applies to registered land

Bind even if not on register of title

Known as a blot on the system of land registration

Examples:
- Interest of persons in actual occupation: must be in actual occupation and have some property rights in the land
- Legal leases for 7 years or less
- Unregistered legal easements

40
Q

Adverse possession of registered land

A

Process of acquiring title to a piece of land by virtue of physical possession rather than of documentary evidence

If title is registered
- After 10 years possession
- Possessor has right to apply for title
- Owner can object and not lose title

Exceptions:
- If unconscionable to seek to dispossess the applicant e.g. landowner new and didn’t object when squatter build a home on the land
- Reasonable mistake as to boundaries

41
Q

Adverse possession of registered land

A

Process of acquiring title to a piece of land by virtue of physical possession rather than of documentary evidence

If title is registered
- After 10 years possession
- Possessor has right to apply for title
- Owner can object and not lose title

Exceptions:
- If unconscionable to seek to dispossess the applicant e.g. landowner new and didn’t object when suqatter build a home on the land
- Reasonable mistake as to boundaries

42
Q

Co-ownership - trust of land

A

When two or more people acquire land together a trust of land arises automatically

Trustees: holders of legal estate

Beneficiaries: holders of behind the scenes beneficial interest

Bare trustee: holding legal estate on trust for beneficiary

43
Q

Two forms of co-ownership

A
  1. Joint tenancy: tenants are entitled to occupy the entire land, it is not divided up but rather all of it is theirs
    - Survivorship: if one co-owner dies their share will pass to the surviving co-owner automatically and they cannot leave their share of the property to anyone else in their will
    - Legal estate: must be held as joint tenancy (maximum of 4, of sound mind and over 18)
  2. Tenancy in common: each hold a distinct share in the property
    - No survivorship: can leave their share to someone else in their will
    - May only apply to beneficial interest
44
Q

Declaration of trust

A
45
Q

Severance

A

Converts joint tenancy to tenancy in common

Only applies to the beneficial interest

Severed by:
1. Mutual agreement
2. Bankrupxy of one co-owner
3. Course of dealing
4. By notice

46
Q

Common types of lease

A

Fixed term tenancy
- Term of years certain e.g. 5 years

Periodic tenancy
- Defined periods until brought to an end e.g. year to year or month to month

47
Q

A lease which is unclear as to duration will likely be void for uncertainty

A
48
Q

Formalities for creating a lease

A

Should be created by deed

Equitable lease may arise if formalities of deed are not met

An equitable lease can be registered as either:
- If unregistered land = class c (iv) estate contract
- If registered land = notice on charges register

49
Q

Lease vs licence

A

Lease: legal estate with exclusive possession
- Tenant has exclusive possession of property and can exclude anyone including landlord
- Lease is for a fixed or periodic term certain
- Money is payable in consideration

Licence: mere personal right to use land

Substance of arrangement between the parties is the key determining factor of whether the arrangement is a lease or licence and not the label

50
Q

Lease covenants

A
  • Term of the lease (time)
  • Rent payable
  • Quiet enjoyment
  • Repair
  • Alteration of premises
51
Q

Remedies for breach of covenant

A
  1. Right to forfeit lease
    - Must be explicitly contained in the lease and is not implied
  2. Repair
52
Q

Continuing liability for covenants

A

Lease before 1st January 1996 = old lease: original landlord and tenant remain liable for all lease term and they are liable even after assignment

Lease on or after 1st January 1996 = new lease: tenant automatically released after assignment and no liability after assignment but automatic guarantee agreement can be used but not included automatically in lease

53
Q

Authorised guarantee agreement

A

Outgoing tenant guarantees incoming tenant’s performance

54
Q

Landlord control over assignment

A
  • Absolute covenant: no assignment
  • Qualified covenant: conditions e.g. consent of landlord
55
Q

Easements: essential characteristics

A
  • Third-party right
  • Dominant and servient tenement
  • Servient: burdened land
  • Dominant: benefitted land
  • Right benefits dominant tenement
  • Separate ownership
  • Capable of being an easement
56
Q

Easements: creation

A
  • Express grant or reservation: specified in deed or transfer or expressly reserved in sale/purchase
  • Implied grant or reservation: necessity e.g. land locked
  • Prescription: if right has been exercised unchallenged for 20 years
  • Statute: easements already connected to land pass on sale of land even if not specifically mentioned in transfer document

Equitable easement if requirements for legal easements not met

57
Q

Distinguishing negative and positive covenants

A

To decide: look at what needs to be done to comply with the covenant rather than label

58
Q

Can successor enforce covenant?

A

At common law:
-Benefit can be enforced
-Burden can not be enforced

In equity:
-Benefit can be enforced
- Restrictive burden can be enforced but requirements:
1. Covenant is negative/restrictive
2. Covenantee owed benefitted land when covenant was made
3. Burden was intended to run
4. General equitable principles apply
- Positive burden can not be enforced

59
Q

Indemnity covenant

A

Promise by owner for period of their ownership to observe positive covenants

60
Q

Mortgages - protection

A

Registered land: notice on charges register

Unregistered land: lender holds title deeds and any subsequent lenders puisne mortgage c(i) land charge

61
Q

Investigating title

A

Process of checking the seller is entitled to sell the property in question

62
Q

Investigating title to registered land

A

Checking land registers
1. Property register
2. Proprietorship register
(3. Charges rergister)

63
Q

Propety register

A
  1. Address
  2. Type of legal estate
  3. Any rights benefiting property
64
Q

Proprietorship register

A
  1. Class of title
  2. Who holds legal title
65
Q

Charges register

A

Most but not all land will have one

Includes:
1. Encumbrances

66
Q

Investigating title to unregistered land

A

Production of documentary evidence

Seller’s solicitor will produce an epitome of title - a chronological list of documents of title with photocopies of documents attached

67
Q

Good root of title

A
  1. Whole legal/equitable interest in property
  2. Adequate description of property
  3. Doesn’t cast doubt on title
  4. At least 15 years old
68
Q

All land was compulsorily registerable on 1st December 1990 - if a triggering event happened or after this date the land had to be registered

A
69
Q

Investigating title to unregistered land - look out for:

A
  1. Triggering event for first registration
  2. Breaks in chain of ownership
  3. Stamp duty properly paid
  4. Document referred to but not produced
  5. Third-party interests capable of registration
70
Q

Unregistered land: land charges searches have a priority period of 15 working days

A
71
Q

Registered title: official search with priority

A

Priority period of 30 working days within which transaction must complete and register

72
Q

How to spot unregistered land?

A

Look out for reference to:
1. Eptiomine of title
2. Conveyance on sale
3. C1 puisine mortgage

73
Q

Buyer’s pre-contract searches and enquiries - carried out in every case:

A
  1. Local search:
    a. Search of local land charges register
    - Financial charges
    - Planning restrictions
    b. Optional enquiries of local authority
    - Commons registration search
  2. Drainage and water search
  3. Environmental search
74
Q

Buyer’s pre-contract searches and enquiries - carried out in some specific cases:

A
  1. If title unregistered - search of index map
  2. If buyer is obtaining a mortgage - bankruptcy search
  3. If coal mining locality - coal mining search
75
Q

Commercial transactions use the commercial property standard enquiries form and NOT the property information form

A
76
Q

Property information form is only used in a residential transaction and NOT a commercial transaction

A
77
Q

Town and country planning permission

A

Consent from Local Authority to carry out development or to change the use of land e.g. from residential to commercial use

May be deemed or express
- Express: formal written application
- Deemed: permitted development

Certain Local Authorities may disapply the permitted development rights

78
Q

Article IV direction

A

When a local authority disapplies the permitted development rights

An article IV direction will be revealed on the buyer’s local search

79
Q

After planning permission is issued development must commence within 3 years or permission lapses

A
80
Q

Town and country planning: enforcement of unauthorised building work

A

If unauthorised building work tool place the Local Authority has 4 years from the breach to take action

Planning problem runs with the property e.g. Local Authority can take action against a new owner who didn’t carry out the unauthorised building work

81
Q

Town and country planning: enforcement of material change in use

A

Local Authority has 10 years from first breach to take action

82
Q

Listed building

A

Revealed:
- In property information form
- In local search

Property is on a statutory list

Planning permission on listed properties is extensive

No cut off period for enforcement relating to breach of planning laws

Any work to a listed building will require planning permission and listed consent

83
Q

Building regulations

A

Statutory standards to ensure construction is done in accordance with health and safety standards for construction

Building work must comply with regulations

84
Q

If building work is carried out without building regulation consent the Local Authority has 1 year from date of work to take action BUT the Local Authority has unlimited jurisdiction to obtain an injunction to require unsafe work to be remedied or removed

A
85
Q

Commercial properties: use classes

A

Planning permission required to change the use class of a property e.g. from a boutique to a restaurant

86
Q

Planning permission does NOT override any covenant on the title e.g. to not build a further house etc.

A
87
Q

Two ways to fund a purchase

A
  1. Cash buyer
  2. Mortgage
88
Q

Mortgage offer

A

Terms on which lender will lend money

Buyer’s solicitor can only give generic advice and cannot comment on value of product, interest rate or lender etc.

89
Q

Buyer’s solicitor will also act for the lender

A
90
Q

Types of mortgages

A
  • Repayment: monthly payments include interest and a return on capital borrowed
  • Interest only: monthly payments include only payments of interest and the full amount borrowed is pwed at the end of the term
  • Endowment: mortgage combined with life insurance policy
  • Pension: linked to personal pension policy
  • Sharia compliant: comply with Islamic law
91
Q

The mortgage: process and lender’s instructions

A
  1. Mortgage valuation report by lender
  2. Mortgage offer by lender
  3. Buyer’s solicitor requests drawn down of loan by submitting certificate of title to lender
92
Q

Certificate of title

A
  1. Confirm title is good and marketable
  2. Request for release of mortgage advance
93
Q

Borrowing from private source

A

Solicitor should decline to act for private source e.g. mum and dad

94
Q

A non-owning occupier could defeat the lender’s interests in the event the lender has to take enforcement action

A
95
Q

Occupiers consent from needs to be sent to a non-owning occupier to ensure they will vactae the property in the event it is repossessed by the lender

A
96
Q

Post-completion the buyer’s solicitor must register mortgage in charges register of title i.e. perfecting the mortgage

A
97
Q

Time limits for mortgage registration

A

Registered: within 30 day priority period

Unregistered: within 2 months of completion

Company: within 21 days of completion with land registry and Companies House

FLK2 (8 decks)

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