Land Law Flashcards
Proprietary rights vs. personal rights
1. How to enforce
2. Who is it enforceable against
Proprietary rights -> enforced by action in rem (use/possession of land is recoverable) + enforceable against 3P
Personal rights -> enforced by personal action (damages) + enforceable against original parties
Fixed list of proprietary rights x7 + criteria to be recognised as proprietary right
- freehold estate
- leasehold estate
- easement
- mortgage
- restrictive covenant
- estate contracts
- interest in trust of land
- nature of right: substantive characteristics
- creation: formality req
- protection: registration
What is an estate?
What is a freehold/ leasehold estate?
Estate = proprietary right of POSSESSION
Freehold = fee simple absolute in possession
Leasehold = term of years absolute
What is an interest?
proprietary right of LIMITED USE (right to use / enjoy land or NOT to do something)
Legal interests x3 + must be created by what? + remedies available
- mortgages
- easements (forever/certain)
- rights of entry
Must be created by deed
AUTOMATIC right to damages + equitable remedies
Equitable interest x4 + Remedies
- easements (uncertain)
- restrictive covenants
- interests in a trust of land
- estate contracts
Not entitled to damages as a right, only at court’s discretion
3-steps for sale of freehold (registered land v unregistered land)
- Exchange of contracts (voluntary) - parties become legally bound
- completion of deed (standard form of transfer deed = TR1)
a. unregistered land: conveyance -> legal title acquired at completion
b. registered land: transfer
- buyer pays balance of purchase money to seller, seller moves out + hands keys to B
- Registration
a. unregistered land - trigger compulsory 1st registration within 2 months
b. registered land - acquire legal title once registered
Formalities for all land contracts
LP(MP)A, s2:
1. writing
- expressly agreed terms
- signed by both parties
a. 1 doc signed by both parties; OR
b. 2 identical doc signed by each party + exchanged
formalities of a deed
- intended to be deed
- validly executed
a. indv - signed by seller & witnessed
b. company -
2 directors/ 1 director + secretary & witnessed
OR affix company seal - delivered / dated
Varying a land contract
If material term (eg completion date) varied -> must comply with LP(MP)A, s2
Types of land contracts
1. agreement for lease/ contract for lease
- Option agreement
- right of pre-emption
Agreement for lease / contract for lease:
1. landlord + tenant commit to enter lease in the future
2. used when premises not ready for immediate occupation, but parties want certainty that lease will be entered into
Option agreement:
1. right to serve notice of wish to BUY land during option period
2. if served -> seller MUST sell land to buyer, but buyer NOT obliged to buy
Right of pre-emption
1. right of first refusal to sale
2. land owner must first offer to right owner before sale, no obligation to sell, no ability of right owner to require land to be sold to them
Criteria for failed legal estate/ interests to be recognisable as estate contract
- comply with LP(MP)A, s2
- remedy of specific performance ie C has clean hands + not breached any contractual terms
Remedies for breach of estate contract
Common law remedy: automatic right to damages
Equitable remedies (court’s discretion - accounts both parties’ behaviour)
1. Specific performance (if C has clean hands)
2. Injunction
Where to find title information - registered v unregistered land
Registered -> Land Registry’s register
Unregistered -> various title deeds
ADV of registering land/ Land Registry’s register x3
- each registered title has title plan (full extent of property + who is responsible for property’s boundaries)
- ownership is guaranteed by the State (if incorrect, can claim compensation)
- quicker to view + 3P interests are discoverable
Triggering events for compulsory registration x6
- transfer of freehold estate (sale/gift/court order)
- grant of lease >7yrs
- first legal mortgage (freehold/leasehold) with >7yrs left to run
- assignment of lease of unregistered land with >7yrs left to run
- transfers on death of freehold/leasehold with >7yrs to run
- future leases ie grant of lease to take effect >3 months after date of grant
Application of triggering events for compulsory registration -> unregistered v registered land
Unregistered land
1. FIRST registration
a. sale - 1 Dec 1990
b. death/gifts - 1 April 1998
- VOLUNTARY registration (reduced registration fees)
Registered land
1. UPDATE the register - failure to register, transaction not legally recognised
Principles of land registration x3
- Mirror principle - register reflects all benefits/ burdens on property EXCEPT overriding interests (binding, but do not appear on register)
- Curtain principle - register records legal title, not equitable title
- Insurance principle - accuracy of register is guaranteed by the State
Land Registry’s registers x3 + content
- Property register
- description of land (address) by ref to title plan
- type of estate (freehold/leasehold)
- rights BENEFITTING land - Proprietorship register
- name+ address of landowner (registered proprietor)
- RESTRICTIONS affecting registered proprietor’s ability to deal (eg sale/lease/mortgage)
- Class of title - Charges register
- Rights BURDENING land
Different class of title on proprietorship register x4
- absolute (best form of ownership)
- Qualified - title defects
- Good leasehold - title of leaseholder only
- Possessory (adverse possession/ squatter rights) - may mean 3P interests created before date of 1st registration will bind property even if not noted on title
Statutory definition of land x4
What airspace is included?
What ground is included?
- surface (inc. mines + minerals)
- buildings/ part of buildings
- corporeal hereditaments (physical things attached to land) - ie fixtures
- incorporeal hereditaments - benefit of proprietary rights
Airspace: only lower airspace necessary for ordinary use + enjoyment
- if structure overhangs = trespass
- NB: innocent aircraft is not trespass
Ground: up to 300m
- except gold, silver, treasure, coal
Legal test: fixture or chattel?
And which does conveyance of land include?
- DEGREE of annexation
a. How object is attached - raises a presumption
i. more firm = fixture - even if fairly easy to remove, prima facie fixture
ii. rest on land by own weight = chattel - PURPOSE of annexation
a. Takes priority over degree test - rebuts presumption
b. Why object is attached
i. Permanent enhancement of land/building = fixture
- chattels incorporated into architectural design (eg stone garden seat/ ornamental statue)
ii. Temporary & convenient use = chattel
Conveyance of land automatically includes all fixtures UNLESS specifically excluded in contract (eg Buyer and seller complete Form TA10)
What is a mortgage?
who is mortgagee/ mortgagor?
Granted over what type of estate?
Bundle of proprietary rights granted to lender as security for loan
Lender = mortgagee
Borrower = mortgagor
Granted over freehold/leasehold estate
Legal v Equitable mortgage
- what interest?
- Formalities
Legal mortgage
- proprietary interest + contractual debt
- Deed + Registered
Equitable mortgage
1. Mortgage of equitable interest
- writing + signed by grantor (mortgagor)
- Defective legal mortgage -> contract to grant legal mortgage
- comply with LP(MP)A,s2 + specific performance available
