Land Law Flashcards
Legal framework
Law of Property Act 1925
Land Registration Act 1925/2002
Land Charges Act 1925
Classification of property
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
Land
- Land itself
- Buildings on land
- Trees and plants
- Mines and minerals below the land
- Airspace above land (only to a height reasonably necessary)
- 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
Corporeal hereditaments
Tangible things
Surface of the land, buildings, parts of buildings, mines, minerals, trees and plants
Incorporeal hereditaments
Intagible things
Rights, easements and rents
Fixtures
Part of the land
Pass automatically on sale
Fittings (chattels)
Not part of land
Do not pass unless mentioned
Fixtures vs fittings: two tests
- Degree of annexation:
- Greater attachment = fixture
- Easy to remove = fitting - 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
Ownership
Crown owns all land
“Owner” holds an estate in land
Legal estates in land
- Freehold estate:
- Fee simple absolute in possession
- Right to use piece of land indefinitely - Leasehold estate
- Term of years absolute
- Fixed maximum duration
Interest in land
Right over land belonging to another
Five legal interests in land (MERRP)
- Mortgages
- Easements
- Rentcharges
- Right of entry: attached to lease or rent charge
- 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
Equitable interests
If attempt to create legal interest fails equitable interest may still arise
- Equitable mortgage
- Restrictive covenant: promise not to do something that is attached to land e.g. not to build more than one house on the land
- Estate contract
Formalities for the creation of interests
Contract for sale of land MUST be in writing
Valid deed
- In writing
- Intended to be a deed
- Executed as a deed: signed, witnessed, delivered
Used to create an interest or right in land
Attestation clause = signature clause in a deed
Deducing title
Seller proves ownership of land through documentary evidence
Proving ownershhip
- Good root of title
- Unbroken chain of ownership
- Minimum period of 15 years
Examples:
- Conveyance on sale
- Deed of gift
- Mortgage deed
- Assent
Requirements of good root of title
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
Epitome of title
Chronological list of documents of title with copies attached
Legal interests
Buyer is bound irrespective of notice
Equitable interests
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
Classification of land charged
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
Registration of land charges are against the estate owners name and not against the address of the property i.e name and not land
Interest in land charges class
Registration = notice
Must be registered to bind
Doctrine of notice
Take free of equitable interest
If…
- Good faith
- Buyer for value
- Acquired legal interest or estate
- No notice of equitable interest
Three types of notice that make an equitable interest binding on a buyer
- Actual notice
- Constructive notice: whatever a reasonable inquiry of land would have revealed
- Imputed notice: agent knew about an interest that knowledge would be imputed to the buyer as well
Unregistered interests which override first registration
Automatically binding when unregistered title becomes registered
Bind buyer despite the fact the buyer didn’t know about them
- Legal easement
- Local land charge
- Lease granted for 7 years or less
- Interest of someone in actual occupation
Registration of title to land
Create a register of title
- Property register: address, type of legal estate, rights benefitting property
- Proprietorship register: holder of legal estate
- Charges register: rights burdening property
First registration of land
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
First registration: classes of title
- Title absolute (freehold and leasehold): best form of title, estate and all benefiting interests
- Qualified title: title qualified in some way (not perfect in some way)
- 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
- 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
Curative effect of registration
Process of upgrading possessory title to title absolute
Substantive registration
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
Caution against first registeration
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
Caution against first registeration
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
Dispositions after first registration
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
When title passes
In unregistered system:
- On completion
In registered system:
- On registration
Third-party interests in registered land
Appear in register of title
Notices: for burden affecting land
Restriction: to restrict registration of certain dealings with land
Overriding interests (third-party interests that override registration)
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
Adverse possession of registered land
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
Adverse possession of registered land
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
Co-ownership - trust of land
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
Two forms of co-ownership
- 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) - 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
Declaration of trust
Severance
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
Common types of lease
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
A lease which is unclear as to duration will likely be void for uncertainty
Formalities for creating a lease
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
Lease vs licence
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
Lease covenants
- Term of the lease (time)
- Rent payable
- Quiet enjoyment
- Repair
- Alteration of premises
Remedies for breach of covenant
- Right to forfeit lease
- Must be explicitly contained in the lease and is not implied - Repair
Continuing liability for covenants
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
Authorised guarantee agreement
Outgoing tenant guarantees incoming tenant’s performance
Landlord control over assignment
- Absolute covenant: no assignment
- Qualified covenant: conditions e.g. consent of landlord
Easements: essential characteristics
- Third-party right
- Dominant and servient tenement
- Servient: burdened land
- Dominant: benefitted land
- Right benefits dominant tenement
- Separate ownership
- Capable of being an easement
Easements: creation
- 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
Distinguishing negative and positive covenants
To decide: look at what needs to be done to comply with the covenant rather than label
Can successor enforce covenant?
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
Indemnity covenant
Promise by owner for period of their ownership to observe positive covenants
Mortgages - protection
Registered land: notice on charges register
Unregistered land: lender holds title deeds and any subsequent lenders puisne mortgage c(i) land charge
Investigating title
Process of checking the seller is entitled to sell the property in question
Investigating title to registered land
Checking land registers
1. Property register
2. Proprietorship register
(3. Charges rergister)
Propety register
- Address
- Type of legal estate
- Any rights benefiting property
Proprietorship register
- Class of title
- Who holds legal title
Charges register
Most but not all land will have one
Includes:
1. Encumbrances
Investigating title to unregistered land
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
Good root of title
- Whole legal/equitable interest in property
- Adequate description of property
- Doesn’t cast doubt on title
- At least 15 years old
All land was compulsorily registerable on 1st December 1990 - if a triggering event happened or after this date the land had to be registered
Investigating title to unregistered land - look out for:
- Triggering event for first registration
- Breaks in chain of ownership
- Stamp duty properly paid
- Document referred to but not produced
- Third-party interests capable of registration
Unregistered land: land charges searches have a priority period of 15 working days
Registered title: official search with priority
Priority period of 30 working days within which transaction must complete and register
How to spot unregistered land?
Look out for reference to:
1. Eptiomine of title
2. Conveyance on sale
3. C1 puisine mortgage
Buyer’s pre-contract searches and enquiries - carried out in every case:
- Local search:
a. Search of local land charges register
- Financial charges
- Planning restrictions
b. Optional enquiries of local authority
- Commons registration search - Drainage and water search
- Environmental search
Buyer’s pre-contract searches and enquiries - carried out in some specific cases:
- If title unregistered - search of index map
- If buyer is obtaining a mortgage - bankruptcy search
- If coal mining locality - coal mining search
Commercial transactions use the commercial property standard enquiries form and NOT the property information form
Property information form is only used in a residential transaction and NOT a commercial transaction
Town and country planning permission
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
Article IV direction
When a local authority disapplies the permitted development rights
An article IV direction will be revealed on the buyer’s local search
After planning permission is issued development must commence within 3 years or permission lapses
Town and country planning: enforcement of unauthorised building work
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
Town and country planning: enforcement of material change in use
Local Authority has 10 years from first breach to take action
Listed building
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
Building regulations
Statutory standards to ensure construction is done in accordance with health and safety standards for construction
Building work must comply with regulations
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
Commercial properties: use classes
Planning permission required to change the use class of a property e.g. from a boutique to a restaurant
Planning permission does NOT override any covenant on the title e.g. to not build a further house etc.
Two ways to fund a purchase
- Cash buyer
- Mortgage
Mortgage offer
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.
Buyer’s solicitor will also act for the lender
Types of mortgages
- 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
The mortgage: process and lender’s instructions
- Mortgage valuation report by lender
- Mortgage offer by lender
- Buyer’s solicitor requests drawn down of loan by submitting certificate of title to lender
Certificate of title
- Confirm title is good and marketable
- Request for release of mortgage advance
Borrowing from private source
Solicitor should decline to act for private source e.g. mum and dad
A non-owning occupier could defeat the lender’s interests in the event the lender has to take enforcement action
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
Post-completion the buyer’s solicitor must register mortgage in charges register of title i.e. perfecting the mortgage
Time limits for mortgage registration
Registered: within 30 day priority period
Unregistered: within 2 months of completion
Company: within 21 days of completion with land registry and Companies House
