Land Law Flashcards
How does the right of survivorship operate for joint tenancies and tenancies in common?
Join tenancy = right of survivorship applies, meaning the co-owners’ will/intestacy rules will not apply
Tenancy in common = right of survivorship does not apply, meaning their share in land falls into their estate and passes under the terms of their will/intestacy rules
What is the test for determining how an equitable interest in land is held?
- Are the 4 unities present?
a) Interest
b) Title
c) Time
d) Possession - Is there an express declaration?
- If not, are there words of severance which indicate that co-owners own distinct and separate shares
- Does equity presume a tenancy in common?
a) Where co-owners buy partnership land
b) Lend money on mortgage; and
c) Make unequal contributions to purchase price
What are the 4 methods of severance of an equitable joint tenancy?
- Notice under s 36(1) LPA 1925
- Must in (a) in writing (b) showing correct intention (immediate severance) (c) correctly served to all joint tenants - Alienation
- Joint tenant sells/gives/mortgages equitable interests to third party
- Must be signed in writing
- Bankruptcy results in involuntary alienation - Mutual agreement/course of dealings
- Homicide
- One co-owner kills another
- Victim’s beneficial interest passes to their estate/intestacy rules
- Murderer takes legal estate due to survivorship and it is held on trust for them
Under TLATA 1996, what happens if a dispute cannot be resolved and what factors will the court take into account?
s 14 TLATA 1996: an application can be made by the trustee/anyone who has an interest in property of trust to the court
s 15 TLATA 1996: must take into account (a) purpose of the trust (b) intention of settlor when creating trust (c) welfare of minor who occupies/may occupy the property (d) interests of any secured creditor of beneficiary
What is the effect of a sale by 2 or more co-owners?
Buyer pays purchase price to legal owners to get legal estate
Because they have bought from at least 2 trustees, purchaser overreaches any equitable interests
=> Buyer will take land free of equitable interests
How can a sale be made by a sole surviving owner?
Joint tenants: right of survivorship applies and sole legal and equitable owner can sell alone
Tenants in common: survivor holds land on trust for themselves/beneficiaries under will etc.; buyer will need to overreach by instisting survivor appoints a second trustee
What are the 4 essential characteristics of an easement?
- Must be a dominant and servient tenement
- Must ‘accommodate’ dominant tenement
- Dominant and servient tenement cannot be owned/occupied by the same person
- Right must be capable of forming the subject matter of a grant
a) Right must not be expressed in language too wide and vague
b) Right must not amount to possession
c) Do the rights constitute mere recreation, possessing no quality of utility/benefit
How is an express grant/reservation of an easement shown?
Unregistered land = deed
Registered land = entries on register of title
When can an implied grant/reservation of an easement be made and what are the 4 methods?
Only be created on a sale of part
- Strict necessity
- Implied from common intention of B and S at time of sale
- Wheeldon v Burrows: common owner-occupier of both tenements and:
a) Continuous
b) Apparent
c) Necessary for reasonable enjoyment
d) In use at the date of the transfer - s 62 LPA 1925: implies general words into a conveyance of land where:
a) there is a conveyance of part
b) dominant land must have enjoyed the benefit of right prior to conveyance
c) diversity of occupation at the time of conveyance of part (not essential)
How can an easement arise by prescription? What are the three methods of prescription?
If the easement has been in continuous use for the requisite period of time without interruption or protest
- Common law: claim has to be based on the presumption that it existed since 1189
- Lost modern grant: presume there is a lost grant when it has been used for 20 years
- s 2 PA 1832: non-light easement will not be defeated if it has been used for 20 years; 40 years = absolute and indefeasible (20 years for right to light) unless dependant on express written consent
How can easements be enforced against third parties?
Unregistered:
- If the conveyance is by deed and contains a grant of an easement, it takes effect immediately - legal easement binds
- Equitable easements must be registered as a Class D(iii) land charge
Registered:
- Express easements binds successive owners IF registered as a registerable disposition
- Easement of servient land appears on charges register
- Easement of dominant land appears on property register
- All equitable easements must be in writing and protected as a notice on the charges register
- Implied easements bind as an overriding interest if in existence at time of sale
How can an easement be extinguished?
- Expressly released by a deed
- Own both the dominant and servient tenement, easement will automatically cease
- Implied release where it has been abandoned (i.e: lack of use coupled with an act demonstrating intention to abandon)
How does the benefit of a freehold covenant run at common law?
Can pass to successors:
- By express assignment
- Automatically by annexation if:
a) It touches and concerns the land
b) Original covenantee had a legal estate in land
c) Successor holds legal estate in benefitted land
d) Original parties intend that the benefit of the covenant runs with the land
How does the burden of a freehold covenant run at common law?
Burden does not run
Exception: if covenant has mutual benefit and burden
- The burden must bear some ‘real relation’ to the right granted
Burden can also be imposed indirectly through a chain of indemnity
How does the benefit of a freehold covenant pass in equity?
- Touches and concerns the land
- Benefit passed to successor of covenantee either by express assignment or annexation
How does the burden of a freehold covenant pass in equity?
4 requirements:
- Covenant must be restrictive in nature
- Covenant must accommodate the benefitted tenement
a) Covenantee had an estate in benefitted tenement when covenant was created and successor has an estate at the time of benefitted enforcement
b) Covenant touches and concerns the land
c) Benefitted and burdened tenements are sufficiently proximate - Original parties intended the burden to pass
- In absence of express working, s 79 LPA will imply parties’ intention - Covenant must be registered in appropriate register
- Registered = IARE
- Unregistered = Class D(ii) land charge
What remedies are available to the original covenantee (benefit) for a breach of a freehold covenant?
Still have an interest:
1. Damages
2. Injunction
3. Order for specific performance
Don’t have an interest, only remedy available is damages
What remedies are available to a successor to the original covenantee (benefit) for breach of a restrictive freehold covenant?
Injunction
- Court can award damages in lieu of an injunction if an injunction would not be an appropriate remedy