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SQE 1 FLK 2 > Land Law > Flashcards

Land Law Flashcards

1
Q

What is Land (Corporeal Hereditaments / Incorporeal Hereditaments)

A

Corporeal Hereditaments
- Tangible including: surface of land, buildings, minerals, plants, air and fixtures

Incorporeal Hereditaments
- Intangibles: rights, easements and rent

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2
Q

Limitation of Airspace

A

Owner allows only heights as is necessary for the ordinary use and enjoyment of land and structures on it.

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3
Q

Limits on ownership of ground

A

Freehold owner not entitled to all minerals under his land:
- coal, oil and natural gas subject to statute
- Gold, silver and treasure belongs to crown

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4
Q

Limits on wild animals, running water and development of buildings

A

Wild animals not owned but do have right to hunt them

Running water: landowner can draw water from source only if have licence

Development of buildings generally subject to planning permission

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5
Q

What does something being a fixture vs fitting have in sale of land // and what is general difference between the two

A

Fixture = passes automatically

Fixture is affixed/annexed to land or a building so that it becomes part of the land or building.

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6
Q

Test to decide if fixture or fitting

A
  1. degree of annexation test
    - greater the degree of attachment to the land, the more likely item is fixture (ie does it stand on its own weight)
  2. Purpose of Annexation
    - Was the item brought onto land with intent to make a permanent improvement or only temporary one. (statues as part of architectural design = fixture even if not attached)

Test 2 prevails over test 1 if they are opposed

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7
Q

Freehold Land Characteristics

A

Estate of uncertain duration

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8
Q

Leasehold Land Characteristics

A

Estate of fixed maximum duration

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9
Q

Commonhold Land Characteristics

A

Used for some flats and commercial leases on business parks.

Rights and duties of unit holders contained in Commonhold Community Statement which bind/benefits successive unit holders

Land registered as common hold and each unit holder will be member of Commonhold Association and will be registered as freehold owner of unit

Association is a company limited by guarantee, and each member will be unit holders

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10
Q

Creation of Commonhold conditions?

A

Creation requires following conditions:
- freehold estate must be registered as a ‘freehold estate in common hold land’,

  • land must be specified in Memorandum of Commonhold Association as land in relation to which the Association is to exercise functions, and
  • There must be a Commonhold Community Statement which makes provision for the rights and duties of the Association and of the unit holders
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11
Q

Legal Interest in Land (general)

A
  • Mortgages
  • Easements
  • Rentcharges
  • Profits a Prendre
  • Rights of Entery
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12
Q

What is a mortgage // requirements

A

Legal interest in land
- loan secured on property enabling lender to rights including right to sell property in case of default

Requirements
- must be executed by deed
- first legal mortgage triggers first registration of unregistered land

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13
Q

What is an Easement?

A

Legal interest in land
- right that exists over a piece of land (servant tenement) which benefits a different piece of land (dominant tenement)
- Eg right of way over land or right to use pipes crossing land

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14
Q

What is a Rentcharge // Estate Rentcharge

A

Legal interest in land
- requiring land owner to make periodic payment in respect of land to the rent charge owner
- gives rent charge owner right of entry which can allow them to take possession in case of default (so can be used to enforce positive covenant)

  • cannot arise from lease or tenancy and is not same as lease or tenancy

Estate Rentcharge
- common in property development where owner maintains ownership of communal areas and charges rent charge for upkeep

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15
Q

What is Profit a Prendre

A

Legal interest in land
- enabling someone to take something from land of another (ie timber, fish..)

Profit a Prendre in Gross
- can exist independent of land
- can be substantially registered at HMLR
- can be exercised for the personal benefit of the owner and can be bought and sold independently

Profit a Prendre Appurtenant
- attached to particular piece of land (owner of land has the right)
- cannot be registered at HMLR with own title

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16
Q

Right of Entry

A

Legal interest in land
- include rights of entry contained in leases and annexed rent charges

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17
Q

When is an equitable interest in land / differences to legal interests

A

Where there is an attempt to create a legal interest but deed formalities are not met.

Legal interests bind all third parties

Equitable interests bind only third parties who are not bona fide purchasers for value of a legal estate without notice

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18
Q

Name all equitable interests in land (general)

A
  • Equitable Mortgages
  • Restrictive Covenants
  • Positive Covenants
  • Estate Contracts
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19
Q

What is an Equitable Mortgage

A

Mortgage not property created by deed can be an equitable mortgage

Requires
- sufficient evidence in writing as to terms

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20
Q

What is a restrictive/positive covenant

A

Promise to/not to do something

Due to privity of contract this will bind the original parties.

May be possible for NEGATIVE covenant to bind third parties

Positive covenentant may not be binding on third parties s

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21
Q

What is an estate contract

A

Where parties enter into contract to buy land or have option to buy land

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22
Q

Requirements for sale of land

A

Must meet general requirements of contract, and:
- be in writing and include all terms
- be signed with by all parties or by someone with their written authority

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22
Q

What’s makes a deed valid

A

Valid Deed
- in writing
- clearly intended to be deed
- duly executed as deed
(signed in presence of witness who attests to signature)
(delivered by person authorised to)
- delivered (what party expresses intention to be bound)

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23
Q

Exceptions to Requirement for Deed

A

Deed not needed for transfer of property:

  • assents by personally representatives
  • disclaimers made under the Insolvency Act 1986 or not required to be evidenced in writing
  • surrenders by operation of law (when landlord and tenant demonstrate by conduct that there I no longer a continuing lease between them, including surrenders which may, by law, be effected without writing
  • Leases, tenancies or other assurances not required by law to be made in witting
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24
Q

When might the HRA be relevant in land transactions

A

When land is owned by public authority (ie local authority is landlord) have to enforce its right to possession consistent with HRA

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25
Q

How can a seller of unregistered land show title to buyer // specific docs

A

Must produce documents showing good root title and unbroken chain of ownership to current owner of 15+ years

Documents may include:
- conveyance on sale
- deed of gift
- mortgage deed
- an assent (transfer of land from personal representative of deceased to beneficiary)

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26
Q

Requirements for Root of Title

A
  • be at least 15 years old
  • deal with whole of legal and equitable interest in property
  • contain an adequate description of property
  • do nothing to case doubt on title
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27
Q

What is an epitome of title

A

copy of original documents sent to seller in chronological order to prove title

Original documents are only sent on completion

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28
Q

What interests are buyers of unregistered land bound to

A

Legal Interests
- bound irrespective of notice
- generally discoverable by checking deeds and possibly inspection of property

Equitable Interests
- only bound if given notice

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29
Q

Rules of Land Charges

A

Most equitable rights/interests must be protected by registration at Land Charges Department for UNREGISTERED LAND

Registration alone will constitute actual notice

Must be registered against estate owners name. Must be full, correct name.

If land charge is not registered, it is void against a purchaser of money/moneys worth - so if gifted will still apply

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30
Q

What are Class C Land Charges

A

C(i) - puisne mortgages: mortgages not protected by deposit of title deeds to lender (eg. second legal charge)

C(ii) - limited owners charge

C(iii) - general equitable charge not covered in other categories

C(iv) - estate contracts (eg contract to purchase, on option to purchase, right of pre-emption, contract to have legal lease)

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31
Q

What are Class D Land Charges

A

D(i) - Relates to tax paid on death

D(ii) - Restrictive covenants

D(iii) - Equitable easements

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32
Q

What are Class F Land Charges

A

Protects non-owning spouses statutory right of occupation of the matrimonial home under the Family Law Act 1996

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33
Q

When does Doctrine of Notice apply

A
  • to unregistered land
  • to equitable interests created before 1925 and beneficial interests under a trust

Means buyer will not be bound to these if:
- Bona fide = in good faith
- Purchaser = not by operation of law
- Value = money or moneys worth or future marriage
- Legal estate = freehold or leasehold or charge by way of legal mortgage
- Without notice

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34
Q

What constitutes notice in Doctrine of Notice

A

Actual Notice:
- purchaser actually knows of the equitable interest

Imputed Notice:
- notice received by buyer agent (actual or constructive)

Constructive Notice
- Fail to pursue a line of enquiry which ought reasonably to have been made (proper investigation of title deeds and proper inspection of land)
- Must take care to see who has use of land, all occupiers of land (if not legal owner must find out what interest they have)

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35
Q

Unregistered land interests that override first registration

A

Unregistered interests which will bind buyer when unregistered land becomes registered

If buyer is aware of an overriding interest on application for first registration, it is necessary to disclose this on registration

Interests are:
- lease granted for 7 years or less
- legal easement
- local land charge, or
- an interest belonging to a person in actual occupation so far as relating to land they occupy

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36
Q

What is adverse possession process for unregistered land

A

Process of acquiring title to land by dispossessing previous holder and occupying land

Process
- land is occupied for 12 years
- then legal owner holds title on trust for squatter, who can apply for registration

Applicant (Squatter) must show
- they have actual physical possession of land
- possession is exclusive to applicant, and
- possession is without permission of landowner

Result
- HMLR likely to award possessory title (can be upgraded after another 12 years)

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37
Q

What can trigger first registration of land and what are requirements/process

A

Trigger
- conveyance on sale of freehold land
- an assent
- a deed of gift
- grant of a lease for a term exceeding 7 years
- an assignment on sale of a lease having an unexpired term exceeding 7 years

Process
- application to be made in 2 months

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38
Q

Result of Failure to register land upon triggering event

A

Must be registered in 2 months of trigger

Failure
- Conveyance of land: transfer of legal title is void (legal estate reverts back to seller)

  • Lease or mortgage: legal estate reverts to transferor who holds it on trust as bare trustee

Rectifying
- cost of remedy falls on party in default (normally buyer)
- registry may extend 2 month period if there is good reason

  • unregistered transaction may lose priority as they become an equitable estate and lose priority to other transactions which create interests over the qualifying estates
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39
Q

What are the classes of title that can be awarded by HMLR

A
  • absolute freehold title
  • qualified title
  • possessory title
  • good leasehold title
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40
Q

Absolute Freehold Title

A
  • best class of title
  • Registered Proprietor takes legal estate together with all beneficial interest (implied easements etc.)
  • estate is only subject to interests entered on the register at the time of registration and overriding interests
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41
Q

Qualified Title

A

Land Registry thinks title has some kind of defect (specified on the register)

42
Q

Possessory Title

A

Class of title based on factual possession of the land rather than possession of title
- squatters rights
- where title has been lost

Means third party interests created before the date of first registration will bind the property even though not noted in title

43
Q

Good Leasehold // Absolute Leasehold

A

Good Leasehold
- Land Registry satisfied as to title of leaseholder only and not freeholder

Absolute Leasehold
- where registry has also inspected all superior leasehold titles and freehold titles

44
Q

How can you upgrade Class of Title

A

Possessory can be upgraded to absolute freehold if Registered Proprietor can show that possessory title has not been challenged for 12 years since it was granted

45
Q

What estates can be substantively registered // and what does that even mean

A

Substantively registered means they can be registered in own title number (rather than as notices or restrictions on existing register of title)

Estates:
- estates in land (freehold / leasehold)
- rentcharges
- franchises
- profits a prendre in gross

46
Q

What is the caution against first registration

A

Owner of an interest in unregistered land can register a caution. Meaning they will be informed of the fact land is going to be registered and given period of time to object to registration

Owner of estate where caution is lodged can apply to Registrar for caution to be cancelled if cautioner does not have the interest claimed

47
Q

Registered land when are dispositions operational

A
  • transfer of freehold estate (any) Title doesn’t pass until registration
  • grant of legal lease with more than 7 years to run
  • express grant or reservation of legal easement, legal profits and legal rent charged
  • first legal mortgage created out of the estate
48
Q

What is included in the Header Section of Title Information Document

A
  • title number
  • edition date (date of last update)
  • date and time of official copy
  • Land Registry office
49
Q

What is included in the Property Register

A
  • postal adress
  • specifies legal estate held
  • indicates rights in other property (eg. easements) that benefit the property
50
Q

What is included in the Proprietorship Register

A

specifies
- any restrictions on title
- class of title held
- name of current holder(s)

51
Q

What is included in the Charges Register

A
  • details of encumbrances on land (things that adversely effect land) for example:
  • restrictive covenants
  • mortgages
52
Q

Third Party Interests that must be protected by registration (registrable dispositions)

A

Registration makes these binding on purchaser of value, but donee is always bound

Express Legal Easements
- formalities of deed then registration
- Registration either to Charges Register of servant tenement or as notice on Property Register of dominant tenement

Grant of Lease for more than 7 years

Grant of Legal Mortgage
- formalities of deed, then registered on Charges Register

Landlords right of entry

Transfer of registered freehold/leasehold estate

53
Q

How are equitable interests in Registered Land protected

A

Need either notice or restriction to be binding on purchaser for value, donee is always bound

Entry of Notice
used for things that burden land:
- restrictive covenants affecting freehold land
- estate contracts
- equitable easements
- equitable leases

Restriction
Used to impose conditions on purchaser (only when conditions have been fulfilled can, transfer of freehold be registered)
- used in beneficial interest in trust land
- restriction may instruct purchaser to pay money to at least 2 trustees (for overreaching)

54
Q

How can notice of interests in Registered Land be given / removed

A

Agreed Notice
- either consent of landowner, or
- strict evidence of interest

Unilateral Notice
- registered without consent of landowner
- complete form stating on what grounds notice is being made

Cancelation or Removal
- Registered proprietor can apply to remove notice
- Notice applicant has period respond
- if not response notice is cancelled

  • notice must be made with reasonable cause, otherwise applicant can be held liable to any person who suffered damages as a result
55
Q

What are Overriding Interests and name them

A

Overriding interest bind on both registered proprietors and person who acquires an interest in the property despite the fact that they do not appear on register of title

  • legal leases for 7 years or less
  • implied legal easements or profits a prendre (by prescription/long use or implied grant)
  • Interests of persons in actual occupation who also has qualifying proprietary interest in land (subject to exceptions)
56
Q

Overriding Interest what constitutes actual occupation

A

Courts take account of:
- degree of permanence and continuity
- intentions and wishes of person concerned
- length of any absences and reasons for these
- nature of the property, and
- personal circumstances of the person concerned

Temporary absences do not prevent actual occupation but occupation must exist at time of transfer

57
Q

Overriding Interests: Exceptions to overriding interest despite actual occupation

A
  1. holder of interest (or solicitor) fails to disclose right before disposition, when inquired
    - except for those who do not know they have an interest
  2. Where an interest was not obvious on reasonably careful inspection of land at time of disposition and buyer did not have actual knowledge of interest
58
Q

What must a person in actual occupation also have for this to potentially be an overriding interest

A

Must also have a proprietary right
- beneficial interest in trust of land (most common)

Right of occupation of non-owning spouse in not capable of being overriding interest
- they have to register their home right as a notice on registered proprietor’s register of title

59
Q

Adverse Possession Rules in Registered Land

A

Apply since Oct. 2003

  • after 10 years of possession squatter acquires right to apply for registration of title

Application to HMLR must show
- they have actual physical occupation
- possession is exclusive to applicant, and
- possession of land is without the permission of landowner

  • on application landowner notified and can object
  • if they object application is rejected (subject to exceptions)
  • if successful squatter will be registered as proprietor
60
Q

When might application for adverse possession of registered land be accepted despite rejection by land owner

A

This is very rare

  • where it would be unconscionable and the circumstance are such that applicant ought to be registered as proprietor
  • if applicant is for some other reason entitled to be registered as proprietor
  • if there is a reasonable mistake as to boundaries
61
Q

Restrictions on Joint Tenancies

A
  • no more than 4
  • must be at least 18

(rules automatically apply to number/age of trustees of Trust of Land)

62
Q

Differences between Joint Tenancy and Tenancy in Common

A

Joint Tenancy
- all co-owners deemed to own whole of property
- level of contribution is irrelevant
- right of survivorship applies (goes to other joint tenant on ones death)
- must hold all 4 unities of title

Tenancy in Common
- requires only unity of possession
- Each have distinct but undivided shares in land (so 25% share does not mean 25% of land surface)
- Right of survivorship does not apply
- each entitled to specific share on disposal of land or can be left in will

63
Q

Difference between Legal Title and Equitable Title

A

Legal Title
- named as registered proprietors
- max of 4
- must be held as joint tenancy and cannot be severed

Equitable Title
- private/not registered (curtain principle)
- can either be joint tenants or Tenants in Common
- no limits (number or age)

64
Q

When is tenancy in common most appropriate

A
  • where it is clearly intended and intended that survivorship not apply
  • where parties contributed unequally to purchase price
  • where parties entered into commercial transaction where joint tenancy would be inappropriate
65
Q

What is a declaration of trust

A

Sets out the agreement between co-owners as to how beneficial interest is to be held

66
Q

How can severance be done

A

Giving other joint tenant notice in writing
- must show clear intention to sever and be sufficiently served
- sufficiently served if: (1) legal at last known place of adobe or business in UK, or (2) sent by registered Prost to person at place of abode or business

By treating a share as separate
- no requirement for other joint tenant to know or consent
- selling of gifting share (or contracting to) (new owner becomes tenant in common whilst others (if multiple) remain joint tenants
- taking out mortgage over own equitable share (or fraudulently take mortgage of whole)

By mutual agreement / conduct
- where there is agreement to sever a joint tenant (need not be legally binding or in writing)
- any course of dealing (ongoing negotiation, or both parties making wills inconsistent with survivorship)

By Forfeiture
- if one joint tenant kills another = no survivorship

By Bankruptcy
- if one joint tenant becomes bankrupt

67
Q

How do courts decided if there was tenancy in common or joint tenancy

A

Typically equity follows the law (so joint tenancy) unless intention of parties can be deduced to show otherwise

68
Q

What is Overreaching and what are requirements

A

Is process by which buyer can buy land free of a beneficiaries interest under trust
- beneficiaries interest will attache to purchase money not land

Requirement
- purchase money is paid to all trustees
- at least minimum of 2 trustees or 1 trust corporation
- if only one trustee then second must be appointed or buyer must obtain written release from the beneficiary of their rights

69
Q

What are the solicitors duties when acting on sale of trust property

A

Where adult beneficiaries are involved must regard duty to consult beneficiaries and take their (or majority of their ) wished into account

70
Q

Process of Resolving Disputes over disposal co-owned land

A

TLATA (s. 14)
Who can apply to court order
- anyone with an interest in the land
- trustee, beneficiary, mortgagee or legal or equitable title, trustees in bankruptcy, people who hold charging notice)

Court Order
- may order trusty to sell
- relieve trustee of duty to obtain beneficiaries consent / consult with beneficiary
- declare nature or extent of person’s interest

71
Q

What must court consider when determining application for order under s. 14 TLATA

A

TLATA (s15)
- intensions of person/persons who created trust
- purpose for which property subject to trust is held
- welfare of any minor occupying/ might reasonably be expected to occupy land
- interests of any secured creditor of any beneficiary

72
Q

How might court divide co-owned property if there is dispute

A
  • first consider whether there is a declaration of trust (usually conclusive)
    — if property transferred to parties jointly it will be presumed equitable joint tenancy

Proof of Different Common Intention
- can be shown either when property was purchased or later
- can be inferred from conduct
- if not shown then court will divide as it considered fair, in respect to whole course of dealing (contributions to purchase and expects etc.)

73
Q

difference between under lease and assignment

A

Sublease / under lease
- tenant grants lease to 3rd party to lesser term
- tenant becomes sub-landlord
- og lease = headlease

Assignment
- tenant transfers leaseholder estates to 3rd party

74
Q

When can rent be adjusted in a lease

A

Only if there is a rent review clause that provides this

75
Q

What is a Reversionary Lease

A

A lease entered into now which will only take effect in the future

Limit
- period between entering lease and tenant taking possession cannot exceed 21 years

76
Q

What are the types of periodic tenancies

A

Express Periodic Tenancies
- parties expressly agree to enter tenancy defined by period of time such as ‘yearly’
- will continue until one party brings notice to end
- notice period typically included in lease, if not then must be as long as the period of the tenancy

Implied Periodic Tenancies
- if parties have not entered into written agreement
- court may imply PT provided tenant has gone into possession and started to pay rent
-relevant period will depend by period by which rent is quantified

  • may also imply PT if parties unsuccessfully tried to enter into legal lease but it was void
77
Q

Tenancies at Will and Contractual Periodic Tenancies

A
  • where owner of land allows buyer to take possession of land before entering written agreement to sell
  • not an estate in land - rather personal arrangement between landowner and prospective buyer which can be terminated at will
  • attempt to assign = notice to terminate

Contractual Periodic Tenancies
- if prospective buyer in possession begins to pay rent count may treat it as periodic tenancy, unless very clear evidence that parties intent the tenancy at will to continue

78
Q

When is the term of a lease uncertain and what is the result

A

Lease must be clear on when term begins and ends

If term is uncertain (ie. depends on external circumstances over which parties have no control) lease is void for uncertainty

Also void for uncertainty if length is certain but stating date is uncertain

Examples of uncertain terms:
- for life
- until end of war

79
Q

Requirements for creation of a legal lease

A

Must be by deed (unless 3 years or less)

Short lease (3 years or less)
- no deed, can be in writing or orally if:
– tenant takes possession of the leased premises, and
– it is at the best rent which can be reasonably obtained without a fine (market rate and no upfront sum or premium)

Short leases can still only ever be assigned by deed

80
Q

Requirements for Equitable Leases

A

If not protected by valid deed or a short term lease (3 years or less) might still be equitable lease if:
- lease is in writing
- with all terms
- expressly agreed and signed by parties

Registration
- must be registered before it binds a 3rd party purchaser
- if unregistered land by registration of Class C(iv) land charge
- if registered land by notice on charges register

Equity recognises this as contract for disposition of land
- so if one party breaches other can seek remedy of specific performance

81
Q

When might a court imply a periodic tenancy to an equitable tenancy

A

If tenant has gone into possession and started paying rent

this makes it a legal tenancy and will:
- bind purchaser for value of unregistered land
- tenants interest will override first registration and a registered disposition

82
Q

Difference between leases and licence

A

Lease
- proprietary right in land
- is capable of being enforced against 3rd part
- tenant can sue 3rd party for nuisance/trespass
- lease can confer right of security of tenure
- several statutory protections

Licence
- personal permission to be on someones land
- can only be enforced against grantor
- not entitled to sue 3rd party for nuisance/trespass
- no security of tenure
- no statutory protection

83
Q

What are the key characteristics of a lease

A

Exclusive Possession
- legal right to exclude all others from demised property, including landlord

Certainty of Term
- either fixed or periodic

In consideration of a premium (lump sum) or periodic payments
- unlike others it is. not necessary for a lease to exist

84
Q

What remedy does the landlord have for non payment of rent for commercial tenants

A

Commercial Rent Arrears Recovery
- allows landlord to recover rent arrears by taking control of tenants goods and selling them
- applies even if not referred to in lease
- must provide 7 clear days notice
- only for purely commercial leases (not part/part)

Forfeiture
- right of landlord to reenter premises and bring lease to end early
- tenants has right to settle arrears and apply for relief
- must be express provision in lease (will not be implied)
- also subject to waiver

Debt Action
- landlord can bring court proceedings for debt action if rent or other money due

Pursue Guarantor and/or Rent Deposit
- if these have been taken out

85
Q

How may landlord waive their right to forfeiture

A

If landlord knows about breach and:
- accepts/demands payment
- serving noice on tenants requiring repair to be done and carrying out distress rent

86
Q

Breach of a Repair Covenant Remedies

A
  • Damages (to put wronged party in position they would be in had contract been performed)
  • specific performance (to perform contractual obligation, discretionary remedy)
  • self help (innocent party to carry out repair and claim cost from defaulting party)
  • forfeiture (by 146 notice)
87
Q

Rules on Self Help for breach of repair covenant

A

Also called (Jervis v Harris Clause). Allows innocent party to carry out repair and claim cost from defaulting party

Process
- lease must include self help clause
- landlord to serve notice to tenant, specifying breach of covenant
- if tenant fails to carry out repair promptly, landlord can enter to carry it out
- can claim costs as debt (as straightforward debt action)

88
Q

forfeiture for breach of non-rent covenants

A

Process
- has there been breach
- is there a forfeiture clause
- has there been a waiver
- landlord must serve 146 notice on tenant
- this allows tenant to rectify breach

Must include
- specify the breach
- require breach to be remedied within reasonable time (if capable of remedy)
- require tenant to pay compensation to landlord for breach (if required by landlord)

89
Q

Forfeiture process breach of rent covenant

A
  1. Has there been a breach
  2. Is there a forfeiture clause
  3. Has there been a waiver
  4. Formal demand
  5. Exercise the right (by court order or peaceable re-entery)
  6. Relief
90
Q

Characteristics of Old Lease and Assignment

A

Old Lease = before 1996

  • original landlord or tenant remain liable to one another for entire lease period, even after it has been assigned
  • unless one of them expressly releases the other

So if assignee breaches covenant the original landlord could pursue either new or old tenant

91
Q

Characteristics of New Leases and Assignment

A

Tenants

Tenants (NOT Landlords) are automatically released from their covenants upon assignment

Landlord can require tenant to enter AGA as condition of giving consent to assign

Note
Original tenant will remain liable for breaches that happened before assignment

Landlords
- not automatically released
- must apply for release from tenants
- if not given then can apply to court

92
Q

What is an AGA

A

Here old tenant entered into written obligation to act as guarantor for immediate successor

93
Q

Subletting: is subtenant liable for covenants in Head Lease

A

Generally no as no privity of contract

May be enforceable if covenant is a restrictive covenant

Tenant will generally be liable for actions of anyone occupying premises so will want to ensure their sub tenant is under same obligations

94
Q

Limitations on subletting or assignment

A

Tenant has right to sublet or assign unless profited by the lease

Absolute Covenants Assignment
- total bar
- can mutually agree to relax this, to be formalised in Deed of Variation

Qualified Covenant
- modified so that landlord cannot reasonably withhold consent nor delay
- if it makes consent subject to conditions, these must be reasonable (AGA)

95
Q

Why might a landlord be able to withhold consent for assignment

A

If qualified covenant is in place and:
- bank reference for incoming tenant is not provided,
- tenant’s proposed use would be in breach of specified use covenant in lease, or
- landlord thinks incoming tenant will not be able to pay rent

96
Q

Formalities of assigning lease

A

Must be by deed
- even where original lease was made orally
- even where OG tenant does not have landlords consent (and this is needed) (although here they will be in breach of their covenant)

97
Q

What happens if lease is assigned despite landlords refusal

A
  • if tenant sought consent to assign but this is refused, assignment will still effective between assignor and assignee
  • there will be an automatic breach of covenant
  • assignee can seek declaration of court that conduct (refusal) of landlord is unreasonable
98
Q

What happens if a Headless is Assigned

A
  • Subleases remain valid
  • incoming tenants of headless will be bound by covenants in headless and subject to subleases
  • incoming tenant of headless will become landlord of subleases
99
Q

How can leases terminate

A

Expiry of leases
- fixed time runs out
- tenant fails to exercise option to renew (if allowed)

Termination by notice for periodic tenancy

Surrender
- if no break clause
- parties can mutually agree to end and tenant gives up possession to landlord

Merger
- if no break clause
- parties can mutually agree to end and landlord transfers reversion to tenant

Forfeiture
- if clause exists and there has been breach

Frustration
- due to fault of neither party event occurs making contract impossible to perform

100
Q

How can lease be enforced if no deed is given

A

Written contract
- equitable lease
- can get order of specific performance

No Written Contract
- here landlord accepts possession of property at tenants request
- can give rise to estoppel which prevents either side denying that surrender has taken place

101
Q

What happens to sub lease if head lease ends

A

Depends on how headlease ends

By expiry, notice to quite or forfeiture
- sublease brought to end

By Surrender
- sub lease continues
- subtenant becomes tenant of head landlord on terms of sublease

By Merger
- sub lease continues
- subtenant becomes tenant of head landlord on terms of sublease

102
Q
A

SQE 1 FLK 2 (91 decks)

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