Land Law Flashcards
What is the distinction between a lease and a licence?
A lease is a recognized proprietary right in the land, known technically as a ‘term of years absolute’. It grants the temporary right to use and enjoy the land exclusively. On the other hand, a licence confers a personal permission to be on someone’s land and justifies what would otherwise be a trespass.
What are the key differences between leases and licences?
Leases are proprietary rights to land and can be enforced against third parties. They confer the right of security of tenure and can sue third parties for nuisance or trespass. Licences, on the other hand, are personal permissions to be on someone’s land and can only be enforced against the grantor. They have no security of tenure and cannot sue third parties for nuisance or trespass.
What was the significance of the Street v Mountford case?
In the case of Street v Mountford, the House of Lords held that an agreement described as a licence was, in substance, a tenancy or lease. This case established that the courts would look at the substance of the arrangement rather than the label used by the parties to determine whether it is a lease or a licence.
What are the requirements for a lease to exist?
For a lease to exist, there must be certainty of term, exclusive possession, and the correct formalities used to create the lease. Certainty of term means that the tenancy must be granted for a certain duration. If any of these requirements are not present, the arrangement can only be a licence.
What factors determine whether an agreement is a lease or a license?
The courts will always look at the substance of an agreement to determine if it is a lease or license. The label given to an agreement by the parties is inconclusive. For there to be a lease, rather than just a license, there must be a certain term, exclusive possession, and compliance with the correct formalities.
What are the essential characteristics of a lease?
The essential characteristics of a lease include a certain term, exclusive possession, and compliance with the correct legal formalities. The payment of rent is not required for a lease to exist.
What is the significance of determining whether a party occupies under a lease or a licence in a land law context?
The status of the occupier as either a leaseholder or a licensee is important for two main reasons. First, if the occupier is deprived of their right of occupation, a leaseholder has the right to enforce their proprietary right in the land and recover possession, while a licensee would have to settle for damages. Second, a lease can bind third parties, such as new owners of the burdened land, whereas a licence does not have the same binding effect.
What are the requirements for a certain term in a lease?
A certain term in a lease can be evidenced by a fixed term or a periodic term. While a fixed term is more common, a periodic tenancy can also establish certainty of term. A periodic tenancy is generally weekly, monthly, quarterly, or yearly, and it automatically renews until a notice to quit is served.
What is exclusive possession in the context of a lease?
Exclusive possession means that the right of occupation grants the occupier the right to exclude all others from the premises, including the landlord. It involves examining the level of control the occupier has over the land and the control retained by the grantor. Factors such as the grantor retaining a key or having a high degree of control over the premises may affect exclusive possession.
What factors could defeat the existence of a lease?
Even if exclusive possession exists, certain factors can defeat the existence of a lease and classify the arrangement as a licence instead. Factors such as an act of generosity, a service occupancy, or the absence of intention to create legal relations can defeat a lease. It is important to consider the specific circumstances and intentions of the parties involved.
What are the formalities required to create a lease?
The relevant formalities for creating a lease depend on the term of the lease. A lease of over 7 years must be granted by deed and registered at the Land Registry. A lease of 7 years or less must also be granted by deed but does not need to be registered. However, there is an exception for leases of 3 years or less that meet certain conditions, where no formalities are required.
What are the conditions for a lease of 3 years or less to be exempt from formalities?
For a lease of 3 years or less to be exempt from formalities, it must meet three conditions: 1) The lease takes effect in possession; 2) The lease is granted at a market rent; and 3) There is no upfront premium payable by the tenant. If these conditions are met, the lease does not need to be in writing and no formalities are required to create the legal estate.
What is the short lease exception for periodic tenancies?
A periodic tenancy will almost always fall within this short lease exception providing each period is 3 years or less.
What is an equitable lease and what are its requirements?
An equitable lease is a form of estate contract that grants the tenant an equitable interest in the land. The requirements for an equitable lease are: the document must be in writing, it must contain all the terms, and it must be signed by both parties.
How is the enforceability of a lease affected by its duration?
A lease of over 7 years must be substantively registered at the Land Registry as part of its creation. Such a lease will be enforceable against a third-party purchaser of the burdened land. A legal lease of 7 years or less does not need registering as part of its creation and will be an overriding interest, binding on a new owner of the burdened land. An equitable lease should be protected by the entry of a notice on the charges register of the burdened land or it will not bind a purchaser for value. If not protected in this way, the equitable lease may be binding on a purchaser for value as an overriding interest if the tenant is in actual occupation of the land.
How can an equitable lease be protected to bind a purchaser for value?
An equitable lease should be protected by the entry of a notice on the charges register of the burdened land. If not protected in this way, the equitable lease may still be binding on a purchaser for value if the tenant is in actual occupation of the land.
What is the impact of a tenant’s actual occupation on the enforceability of an equitable lease?
If the tenant is in actual occupation of the land, an equitable lease may be binding on a purchaser for value as an overriding interest, even if it is not protected by a notice on the charges register of the burdened land.
What does certainty of term mean?
Certainty of term means that the tenancy must be granted for a certain duration.
How can a certainty of term be shown?
‘Certainty of term’ can be shown in two ways; by either a fixed orperiodic term.
When does a fixed term exist?
A ‘fixed term’ exists where the maximum duration of the arrangement is known from the outset.
What is a periodic tenancy?
A periodic tenancy is technically a lease for one period.
In practice this is generally weekly, monthly, quarterly or yearly, which goes on extending itself automatically until either landlord or tenant give notice to terminate the tenancy. This is a notice to quit.
A periodic term may be created expresslyor Impliedly.
What is an express periodic tenancy?
An express periodic tenancy is where there is a written agreement documenting the agreement.
What is an implied periodic tenancy?
An implied periodic tenancy is where there is nothing set out in writing, but the certain term arises by looking objectively at all relevant circumstances including payment and acceptance of rent on a periodic basis.
What does exclusive possession mean?
Exclusive possession means the right to exclude all others from the property, including the landlord.
How is exclusive possession assessed?
Whether exclusive possession exists is a question of fact in each case.
The substance of the agreement has to be examined, along with all the facts.
The courts will look at the reality of a situation, so that even if a clause appears to defeat exclusion possession but has been inserted into a lease only to make what would otherwise be a lease, appear like a licence, it will be thrown out as a sham.
What scenarios indicate the occupier does not have exclusive possession?
(1) The landlord retains a key, (2) the landlord provides services; and (3) there is a sharing clause.
How can a landlord retaining the key indicate the occupier does not have exclusive possession?
it is the purpose for which the key is retained that matters
For example, if the key is used only in an emergency or by arrangement, then exclusive possession may still exist.
The courts will look at whether any right of access the landlord has is restricted or unrestricted.
If the access is restricted eg ‘to carry out repairs’ then this is seen as more of an acknowledgement of exclusive possession by the landlord, rather than something that will defeat it. This was expressed by the court in Street v Mountford [1985] AC 809.
In Aslan v Murphy [1990] 1 WLR 766 the court held ‘there is no magic in the retention of a key’ ….. it will not determine the nature of arrangement either way.
How can a landlord providing services indicate the occupier does not have exclusive possession?
If the landlord provides attendance or services there is a licence not a tenancy (Marchant v Charters [1977] 1 WLR 1181.)
Services would include cleaning, changing linen etc.
The occupier is simply a lodger provided the services are actually carried out and a lodger will never enjoy exclusive possession of the premises.
How do sharing clauses indicate the occupier does not have exclusive possession?
If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean that there is no exclusive possession, as the occupier cannot exclude whoever the landlord is able to introduce.
All of the circumstances must be looked at to see whether this is a genuine clause or simply a sham to defeat exclusive possession, as was made clear in A G Securities v Vaughan and Antoniades v Villiers both reported at [1990] 1 AC 417t.
What should be considered when determining if a sharing clause is genuine or a sham?
The size and nature of the accommodation – would it be realistic to introduce others into the accommodation given its size?
The relationship between the occupiers (if there is more than one) – would it be appropriate to introduce another to share given the relationship between the occupiers?
The wording of the clause (i.e. how widely it is drafted, as the wider it is drafted, the more likely it is a sham clause.)
Whether the clause has ever been exercised – if it has not been exercised then this may indicate it is a sham clause.
What must a business tenant show for them to have a lease?
A business tenant must also show it has a certain term andexclusive possession of the premises in order to establish it is a tenant, rather than licensee.
In the context of business arrangements, the result affects security of tenure, as business tenants (but not licensees) are protected by theLandlord and Tenant Act 1954, entitling them to remain in the premises at the end of the lease term and request a new lease.
In the business context, the court tends to construe the document as a whole to see if the landlord retains control over the property. In this setting, the courts are more prepared to accept the reality of the label ‘licence’ than they are in the residential context as there tends to be more equality in bargaining power, with commercial leases often negotiated and parties legally represented.
What does a right to relocate in business tenancies suggest?
If the occupation agreement contains a right for the landlord to relocate and move the tenant to alternative premises, it will not be a lease.
What is a joint tenancy?
Where there is a joint tenancy all co-owners/tenant are deemed to constitute one single entity, and own/lease the whole property as one collective entity. Nobody owns a single/specific share; rather each are jointly and severally liable for the terms of the agreement.
What the the four unities joint tenants must have?
unity of possession; unity of interest; unity of time; and unity of title
What is unity of possession?
All must be entitled to occupy the whole of the premises.
No-one has exclusive use of any part.
If the occupiers can show that they each have exclusive possession of a part of the property then it is possible for them to have individual leases of their own part.
What is unity of interest?
All occupiers must have a leasehold interest for the same term under the same conditions and must be jointly liable for the rent.
Key word or definition: Joint liability in a lease means if one occupier left, the remaining occupier(s) would be liable for the whole rent payment, not an individual share of it.
What is unity of time?
All of the occupiers interests must start at the same time.
What is unity of title?
All of the occupiers interests must derive from the same document or from separate but identical documents which are interdependent.
What happens if the 4 unities are not present?
If it is found that the occupants do not have all of the four unities, they cannot have a joint tenancy.
If neither a joint tenancy nor an individual tenancy exists then the occupants can only be individual licensees sharing with each other.
What factors may defeat a lease?
These are:
- where there is no intention to create legal relations; and
- where there is a service occupancy.
In what circumstances can it be assumed that there is no intention to create legal relations?
afamily arrangement, an act of friendship or generosity, it can be presumed that there is a lack of such intention.
However, just because there is a family relationship between the parties, it does not automatically follow that there is no intention to create legal relations.
If there is a degree of formality to the agreement and/or a rent is paid then this would evidence an intention to create legal relations
What is service occupancy?
where there is an employer/employee relationship between the landowner and the occupier. Where the occupier is required to live in the premises for the better performance of his duties as an employee, there is no tenancy, even though a rent may be paid.
What formalities are required to make a lease?
The general rule:
To create a legal lease, a deed must be used (LPA 1925, s 52). The requirements of a valid deed are set out in LP(MP)A 1989, s 1.
Leases over 7 years:
If the term of the lease is over 7 years, the lease must also be with registered (LRA 2002, s 27(2)(b)(i))
This is a compulsory registration requirement. If not done a legal leasehold estate will not have been created (LRA 2002, s 27 (1).)
Leases of 7 years or less:
If the term of the lease is 7 years or less, the lease does not need to be registered. Such leases still take effect as legal leases and will be binding on a new freehold estate owner as an overriding interest (LRA 2002, sch 3 para 1).
Short lease exception
Certain short leases, which fulfil certain conditions, have no formal requirements, yet they will still exist as legal leases. They need not even be in writing.
LPA 1925, s 54 (2) states that a lease with a term of three years or less need not be created by deed provided the following three conditions are all met:
The lease takes effect in possession (ie the tenant takes the lease immediately).The lease is granted at ‘best rent’ (which has been interpreted as meaning ‘market rent’).The lease is not subject to a fine or premium (meaning there is no upfront payment for the grant of the lease, which you could commonly expect to see with very long leases).
These short leases, also called parol leases, whether created by deed or less formally under s 54(2), do not need to be registered to exist as legal leases because only leases of over 7 years must be registered.
What the requirements for an equitable lease?
There is a document that complies with LP(MP)A 1989, s 2
AND
The remedy of specific performance is available
The tenant will have an equitable lease (an estate contract) if the agreement is:
* In writing
* Contains all the terms
* Signed by both the parties
What are tenant covenants?
The basic rule is that a tenant may do all things that an owner of an estate can do unless the lease prohibits such actions.
Leases are therefore drafted in a prohibitory or negative manner setting out what the tenant cannot do by way of a number of tenant covenants.
What are landlord covenants?
If the lease is a lease of part of a building (eg a floor in an office block or unit on an estate) the landlord may also covenant to provide services, maintain common areas and to insure the building.
The most common is the covenant for quiet enjoyment. Quiet enjoyment is a landlord’s covenant not to interfere with the tenant’s possession or enjoyment of the property during the term of the lease. It covers the acts of the landlord and the lawful acts of anyone claiming under them.
What are examples of breach of e covenant for quiet enjoyment?
The erection of scaffolding hindering access to the property (Owen v Gadd [1956] 2 QB 99)
* Persistent intimidation of the tenant to induce him to leave (Kenny v Preen [1963] 1 QB 499).
What are guarantors covenants?
An individual or company guarantor may also be a party to the lease and will covenant to guarantee payments that must be made under the lease and the performance of any other obligations so that if the tenant defaults in payment, the landlord is able to call upon the guarantor.
What is Forfeiture?
Forfeiture is the right of the landlord to bring the lease to an early end in the event of tenant breach.
What is Security of tenure ?
Security of tenure is a right for the tenant to remain in premises at the end of the lease term and to request the grant of a new lease.
What is service charge?
Service charge is a sum of money charged by the landlord to tenants to cover costs of services to tenants within a property (such as an industrial estate, block of flats, shopping centre). The charges cover costs to do with maintenance and repairs of exteriors (roofs etc) and common parts but exclude the tenant’s demised areas because the tenants will usually have agreed to repair those areas themselves in the lease.
What are Prescribed Lease Clauses?
A list of set clauses at the front of a lease which help to speed up registration of registrable leases at the Land Registry.
What are some of the usual tenant’s covenants in a lease?
Payment of rent, payment of service charge, use of premises, covenant against assignment and subletting.
What are the benefits of security of tenure for a tenant?
The tenant being able to treat the premises as a long term prospect means that the tenant can invest in fitting out the premises and making them suitable for their purposes.
· A retail or restaurant business know that they can reap the benefits of goodwill from their location.
· A tenant does not have to worry about the considerable upheaval that could be caused by having to move at the end of the contractual term.
What are the benefits of security in tenure for landlords?
The premises will be more appealing to prospective tenants.
· The tenant may be encouraged to treat the premises as their own, and therefore look after them. Of course, there will be repairing obligations in the lease anyway, but it is better if the tenant observes them without being coerced into doing so.
· It may be beneficial to the landlord at rent review, as the market rent may be higher for a lease enjoying security of tenure.
What is a fixed term tenancy?
· A fixed term tenancy creates exclusive possession and a proprietary interest.
· It binds successors in title to the landlord.
· The tenant can use the property as if they were the owner.
· It can benefit from security of tenure.
What is a periodic tenancy?
· A periodic tenancy creates exclusive possession and a proprietary interest.
· It binds successors in title to the landlord. However, it can be brought to an end by notice.
· It can benefit from security of tenure.
What is a licence?
· A licence is a personal permission to be on the land and is not a proprietary interest.
· It does not bind successors in title to the owner granting the licence.
· It cannot benefit from security of tenure.
What is a tenancy at will?
· A tenancy at will is similar to a licence as it is a personal permission but unlike a licence, the tenant can have exclusive possession.
· However, the important feature is that either landlord or tenant can end the tenancy at any time.
· It cannot benefit from security of tenure.
What are the security of tenure provisions?
…any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those and other purposes…
Tenancy
Occupied
Purposes of a business
What can fall under business purposes?
· a charity shop
· a tennis club for members only
· residential use that furthers the tenant’s business (eg, accommodation for medical school students or a lease of a shop, part of which could be used for residential purposes)
These have been held not to be business purposes:
· Sunday school sessions provided free of charge by an individual
· A tenant of a house taking a small number of lodgers without profit
What are excluded tenancies for security of tenure?
Agricultural tenancies (as they have their own statutory regime)
Mining leases
Service tenancies (a lease granted as part of a tenant’s employment, eg, a security guard’s flat)
Fixed term tenancies of six months or less (but can become protected if the tenant has been in occupation for twelve months or more, whether through successive tenancies or if the tenancy is renewable beyond six months)
What are contracted our tenancies?
S38A of the Landlord and Tenant Act 1954 allows the parties to agree to exclude a fixed term lease from the security of tenure provisions.
This is known as contracting out.
Assessment tip: Note that only fixed term leases can be contracted out. A periodic tenancy that qualifies for security of tenure cannot be contracted out.
What is the procedure for contracting out?
The landlord must serve a warning notice on the tenant in a prescribed form. This details the consequences of contracting out the security of tenure provisions.
It must be served before the parties complete the lease.
The tenant must provide a declaration in prescribed form to the landlord before completing the lease.
If lease completion is at least 14 days from the date of the warning notice then this can be a simple signed declaration.
If lease completion is less than 14 days away, then the tenant must provide a statutory declaration (declared before an independent solicitor).
The lease must contain reference to both the notice and declaration (or statutory declaration) of contracting out.
If the procedure is not correctly carried out, or not correctly referred to in the lease, the likelihood is that the lease will enjoy security of tenure.
What is the basis rule for covenants in leases?
The basic rule is that a tenant may do all the things that an owner of an estate can do unless the lease prohibits such actions.
What is a leasehold covenant?
Leasehold covenant: is a promise contained in a lease given by a landlord or a tenant.
A tenant may be subject to repair obligations under a repairing covenant. What is the tenant’s standard of repair?
The standard of repair is to keep the premises in the condition in which they would be kept by a reasonably minded owner, having regard to the character and type and age of the premises.
What is meant by a tenant’s covenant to keep the premises in repair?
It is an obligation to put the premises into repair at the beginning of the term if they are out of repair and to keep them in repair throughout the term of the lease.
What is alienation?
Alienation:a method for the tenant disposing of the whole, or part, of their interest in a leasehold property.
What is assignment of a lease?
the ‘sale’ by the tenant of the remainder of their lease to another party
The covenant is construed in the tenant’s favour so that:
* A covenant against assignment does not prohibit subletting of the whole or part (Church v Brown (1808) 15 Ves Jr 258, 33 ER 752.)
* A covenant against sub-letting the whole does not prohibit a subletting of part (Wilson v Rosenthal (1906) 22 TLR 233.)
What are formalities to transfer the lease?
Deed + Registration
THERE IS NOT SHORT TERM LEASE EXCEPTION
What does subletting of a lease involve?
This involves a tenant granting a lease out of its own lease. This lease is called an underlease (or sublease).
The lease out of which it was granted is now called the headlease (or superior lease).
What are the formalities for subletting a lease?
The general rule is therefore that the lease must be granted by deed (LPA 1925, s 52) which must be registered if the term is for over 7 years (LRA 2002, s 27(2)(b)).
The headlease will generally require the tenant to obtain landlord’s consent to an underletting of the premises. As with an assignment, this is formally recorded in a deed called a Licence to Underlet to which the landlord, tenant and undertenant will all be party.
What happens with qualified covenants against alienation?
A qualified covenant against alienation will be ‘upgraded’ to a fully qualified covenant so that the landlord cannot unreasonably withhold their consent (LTA 1927, s 19(1)(a).) In acting reasonably, the landlord cannot refuse consent on grounds that have nothing to do with the landlord and tenant relationship.
What happens with absolute covenants against alienation?
No statutory provisions apply to an absolute prohibition against any particular dealing so there is nothing that can aid a tenant here if it wanted to ask for landlord’s consent to deal.
However the landlord could as a ‘one-off’ waive the prohibition but it is under no obligation to do so.
What happens with full qualified covenants against alienation?
These type of covenants contain a proviso, be it expressly set out in the lease, or implied by LTA 1927 s 19(1)(a), to the effect that consent to an assignment or an underletting shall not be unreasonably withheld.
What is the statutory intervention with alienation covenants?
Where a tenant applies to the landlord in writing for consent, LTA 1988, s 1 provides that:
* The landlord must give written consent within a reasonable time (unless it is reasonable to refuse.) - 28 days from receipt of the application and references by the landlord was deemed to be a reasonable period (Dong Bang Minerva (UK) v Davina [1996] 3 WLUK 117)
* The burden is on the landlord to prove reasonable refusal – s1(6), and written reasons must be provided.
The landlord is entitled to be given sufficient information to enable it to reach a decision. A ‘reasonable time’ will not generally expire before this has been done but the landlord must ask for further information if it requires it.
If a landlord does not comply with the LTA 1988, it may be liable for tortious damages for breach of statutory duty.
When is refusal of consent reasonable and unreasonable?
Unsatisfactory tenant’s reference –reasonable
The proposed assignee’s use of the property would damage the landlord’s own commercial interests as the assignee proposed to run a rival business next door. – reasonable
The proposed subletting was at a substantial premium and at a rent well below the open market value – reasonable
Where the existing tenant is already in breach of covenant – the landlord can insist upon the breach being remedied before giving consent unless it is clear that the assignee can remedy the breach – reasonable
Where the landlord’s intention was to bring the tenancy to an end and the landlord did not therefore propose to give consent to any assignee, not just to the particular assignee in question –unreasonable
Where the proposed assignee was already a tenant of the landlord in another property which would have been difficult to re-let – unreasonable
What are the Pre-conditions for alienation for new tenancies?
LTA 1927, s 19(1A) applies to any lease that has been granted on or after 1 January 1996. A lease granted on or after 1 January 1996 is known as a ‘new lease’
In new leases, LTA 1927, s 19(1A) (inserted by s 22 Landlord and Tenant (Covenants) Act 1995) states that:
* The landlord and tenant can agree the circumstances in which the landlord may withhold consent to an assignment.
* The landlord and tenant can agree the conditions subject to which consent may be granted.
* Such circumstances or conditions will be automatically reasonable if imposed by the landlord when giving consent to assign.
What is an Authorised Guarantee Agreement (AGA)?
An AGA is a guarantee by an outgoing tenant of the immediate assignee’s obligations only, so that in the event of any future assignment by the assignee, a further AGA will be required from the assignee (in its capacity as the outgoing tenant.) The landlord will only ever have the current tenant and the tenant immediately prior to the current tenant ‘on the hook’.
It is a common conditionattached to the landlord’s consent for an assignment under LTA 1927, s 19(1A) and one seen in most commercial leases for the outgoing tenant.
A tenant asks for permission to assign their three year lease (which was created informally) to which the landlord agrees. What are the formalities for the assignment of the lease?
A valid deed.
What is privity of contract?
Privity denotes the legal relationship between two or more parties to a contract. When a landlord grants a lease to a tenant, the arrangement is a contract, and privity of contract exists between them. The terms of the lease are enforceable under the rules of contract law.
All the terms, regardless of their nature, can be enforced by the original landlord against the original tenant and vice versa.
What is privity of estate?
Where the landlord and the tenant are each owners of a legal estate in the same property, there is said to be privity of estate between them.
Privity of estate exists between any current landlord and current tenant of the property and lasts only for the period while the lease is vested in the tenant.
What happens to privity when there is assignment?
Upon assignment of either the lease or the reversionary interest, privity of contract will remain between the original landlord and the tenant, but there will no longer exist privity of estate between them. This is because the leasehold or freehold estate has passed upon assignment from the original contracting party to their successor in title. Consequently, privity of estate will now exist between whomever is the current landlord and tenant.
When the tenant assigns its interest to a successor in title, there is no contractual relationship between the landlord and the new tenant (the assignee) - privity of estate exists but no privity of contract.
Likewise, where the landlord sells its reversionary interest, there is no contractual relationship between its successor in title (the reversioner) and the tenant - privity of estate exists but no privity of contract.
What are the two sets of rules for leasehold covenants?
The old system which relate to ‘old leases’ (granted before 1 January 1996) and the new system, which relate to ‘new leases’ (granted on or after 1 January 1996)
How do old leases work?
In old leases, the liability of the original landlord and the original tenant continues for the full duration of the lease term, even after an assignment of the lease or the reversion because of privity of contract.
When does privity of estate exist?
Privity of estate exists between any current landlord and current tenant of the property and lasts only for the period while the lease is vested in the tenant.
How do leasehold covenants operate in new leases?
Upon assignment of a new lease, the LTCA 1995 provides for the automatic transmission of the benefit and burden of the covenants to the new owner of the reversion / the lease.
What are tenant covenants in a lease?
Tenant covenants in a lease are the actions that a tenant is prohibited from doing. Leases are often drafted in a prohibitory or negative manner, setting out what the tenant cannot do.
What is the purpose of a s 146 notice in relation to breach of covenant?
A s 146 notice is served by the claimant’s solicitor on the defendant to inform them of a breach of covenant. It specifies the breaches, including the breach of the alterations covenant, and states whether the breach is capable of remedy or not.
What is the purpose of a Jervis v Harris clause in a lease?
A Jervis v Harris clause in a lease provides the landlord with a self-help remedy in case of a breach of the tenant’s repair covenant.
What is a forfeiture right in the context of a lease?
A forfeiture right is a powerful right for a landlord to terminate a lease prematurely for breach of covenant by the tenant. It allows the landlord to exercise the right to forfeit the lease.
What was the decision of the judge at first instance regarding the breach of the alterations covenant?
The judge at first instance held that the breach of the alterations covenant was incapable of remedy and granted an order for possession in favor of the claimant.
How can a lease end early?
One way a lease can end early is if a landlord exercises a forfeiture right. This right allows the landlord to terminate the lease prematurely for breach of covenant by the tenant.
What remedies are available to a landlord in the event of a tenant breach?
In the event of a tenant breach, a landlord has various remedies available. For a breach of a rent covenant, the landlord can take action for debt or pursue forfeiture. For a breach of a non-rent covenant, the landlord may seek an injunction, specific performance, or consider forfeiture. Damages may also be awarded in both cases.
How can a landlord enforce a repair covenant in a lease?
If the lease contains an express right for the landlord to enter and inspect the premises and give notice for repair, the landlord can undertake the works and recover the cost from the tenant if the notice is not complied with.
What is forfeiture in the context of a lease?
Forfeiture is the process by which a landlord can terminate a lease before the expiry date by exercising its right of re-entry. It is a powerful right that landlords usually reserve in a lease.
What is the procedure for forfeiting a lease?
The procedure for forfeiting a lease involves either peaceably re-entering the property or obtaining a court order. The specific rules may vary depending on whether the landlord is forfeiting for non-payment of rent or for breach of covenant other than non-payment of rent.
What is the difference between distress and Commercial Rent Arrears Recovery (CRAR)?
Distress was an ancient common law self-help remedy that allowed a landlord to enter the premises and seize goods to the value of the rent owed. However, from April 2014, distress was abolished and replaced with Commercial Rent Arrears Recovery (CRAR). CRAR requires the landlord to serve an enforcement notice on the tenant, giving seven clear days’ notice before seizing goods.
What was the court’s decision regarding the capability of remedy for the breach of the alterations covenant?
The court held that the breach was capable of remedy, with the ultimate question being whether the harm suffered by the landlord could be effectively remedied by the tenant complying with a s 146 notice and making proper compensation.
What was the court’s decision regarding the capability of remedy for the breach of the alterations covenant?
The court held that the breach was capable of remedy, with the ultimate question being whether the harm suffered by the landlord could be effectively remedied by the tenant complying with a s 146 notice and making proper compensation.
What is the difference between legal leases and equitable leases in terms of forfeiture?
Legal leases must contain an express forfeiture clause, which creates a legal right of re-entry for the landlord. On the other hand, equitable leases do not require an express forfeiture clause because the right to forfeit for non-payment of rent is implied into them as one of the implied usual covenants.
What is the difference between a legal lease and an equitable lease?
A legal lease grants the landlord the right to forfeit in the event of tenant breach of covenant, while an equitable lease is much rarer and usually arises in the context of a failed legal grant. In equitable leases, a right to forfeit for non-payment of rent only will be implied.
What additional protection does the Leasehold Property (Repairs) Act 1938 provide for tenants?
The Leasehold Property (Repairs) Act 1938 provides additional protection for tenants in relation to a covenant to repair. It applies when the lease is granted for at least seven years and there are at least three years still to run. The act limits the landlord’s ability to enforce a repairing obligation until the last three years of the lease.
What is the purpose of a s 146 notice in the forfeiture process?
A s 146 notice is served by the landlord to the tenant in cases other than non-payment of rent. It specifies the breach complained of, requires remedy within a reasonable time if capable, and may require compensation.
What is waiver in the context of lease forfeiture?
Waiver occurs when the landlord, with knowledge of the breach of covenant, does an act that recognizes the continued existence of the lease. Accepting rent from the tenant in default or serving a notice that presupposes the continued existence of the lease are examples of acts of waiver.
What is the purpose of a notice to quit?
A notice to quit is used to determine a periodic tenancy. The length of notice required depends on the type of tenancy, such as yearly, quarterly, monthly, or weekly. It allows either party to terminate the tenancy at the end of a complete period.
What is waiver in the context of lease forfeiture?
Waiver refers to the landlord’s act of recognizing the continued existence of the lease despite a breach. It can occur if the landlord is aware of the breach and does an unequivocal act, such as demanding or accepting rent after the breach.
What is the purpose of relief from forfeiture?
Relief from forfeiture is the court’s discretion to allow the lease to continue, thereby ending the forfeiture process.
Under what circumstances can a tenant be relieved of liability for internal decorative repairs?
If the landlord serves notice under LPA 1925, s 146 and the notice relates to internal decorative repairs, the tenant may apply to the court and be wholly or partially relieved of liability to the extent that the court thinks the notice unreasonable (LPA 1925, s 147).
Can waiver occur inadvertently?
Yes, waiver can occur inadvertently. For example, if the landlord’s agent sends out a rent demand despite the landlord being aware of the breach, it can be considered inadvertent waiver.
What is the difference between surrender and merger?
Surrender is the handing back of the lease by the tenant to the landlord with the landlord’s consent, resulting in the premature termination of the lease. Merger, on the other hand, occurs when the tenant acquires the landlord’s interest, becoming its own landlord, and the lease is absorbed by the reversion and destroyed.
What factors are considered when granting relief from forfeiture?
Relief from forfeiture can be applied for regardless of whether the right has been exercised by court order or peaceable re-entry. It is usually granted if the tenant can pay off the arrears.
What is the process for forfeiture in case of non-payment of rent?
In case of non-payment of rent, the landlord must make a formal demand for payment unless there is an express exemption in the lease, the rent is expressed as payable whether formally demanded or not, or if there are more than 6 months of rental arrears. The landlord can then proceed to forfeit the lease by physically re-entering the property and changing the locks or by possession proceedings to court.
What happens if there is a continuing breach in relation to waiver?
If there is a continuing breach, such as failure to repair, waiver only lasts until the next day the breach continues. At that point, the landlord can choose to reject the rent and forfeit the lease.
What happens to a sub-lease when a head-lease is forfeited?
If a head-lease is forfeited, any sub-lease will also be destroyed. However, a sub-tenant in the premises has the right to apply for relief from forfeiture.
What is relief from forfeiture?
Relief from forfeiture is the court’s discretion to allow the lease to continue even after the landlord has exercised its right to forfeit. The tenant can apply for relief before any court order, after any court order within 6 months, and after peaceable re-entry without time limit. Relief will usually be granted if the arrears can be paid.
What happens if the breach is non-continuing in relation to waiver?
If the breach is non-continuing, such as sub-letting without consent, waiver is permanent. Once rent is accepted, the landlord can never again forfeit for that specific breach.
What is the purpose of an injunction in relation to tenant covenants?
An injunction can be sought by a landlord to prevent an unauthorized sublease or assignment, among other breaches of tenant covenants. It is a legal remedy that aims to stop the tenant from engaging in prohibited actions.
What are the steps involved in the forfeiture procedure?
The forfeiture procedure involves determining if there has been a breach, checking for a forfeiture clause, and assessing if there has been a waiver. These steps apply to all breaches of covenant.
What is the purpose of a s 146 notice in relation to forfeiture?
A s 146 notice informs the tenant of their right to serve a counter notice within 28 days. If the tenant serves a counter-notice, the landlord cannot proceed to claim forfeiture or damages without first obtaining the leave of the court.
What is the procedure for exercising the right of forfeiture in case of breach of other covenants?
The landlord must serve a notice (a s 146 notice) specifying the breach, requesting compensation if desired, and requesting that the tenant remedy the breach within a reasonable time. This provides the tenant with one last chance to comply with the lease and remedy the breach. If the breach is not remedied within a reasonable time, the landlord can proceed to forfeit by physical re-entry or by court order.
When can specific performance be ordered in relation to a repairing covenant?
Specific performance, which is the fulfillment of a contractual obligation, is very rarely ordered in respect of a repairing covenant. In most cases, damages will be considered adequate compensation.
What are the steps involved in the forfeiture process for breach of covenant?
The steps involved in the forfeiture process for breach of covenant include: 1) Identifying a breach of covenant, 2) Ensuring there is a forfeiture clause in the lease, 3) Determining if the landlord has waived the right to forfeit, 4) Serving a demand for payment or ensuring the lease waives this right, 5) Forfeiting the lease by peaceable re-entry or court order, and 6) Allowing the tenant to apply for relief from forfeiture.
What factors determine whether a breach is capable of remedy in the context of forfeiture?
The courts consider whether compliance with a s146 notice, coupled with appropriate compensation, could effectively rectify the harm or damage caused by the breach. The majority of breaches are capable of remedy, except breaches of covenants not to sublet and illegal or immoral use.
What are the steps involved in exercising the right to forfeit a lease?
The steps involved in exercising the right to forfeit a lease are: 1) There must be a breach of covenant. 2) There must be a forfeiture clause in the lease. 3) The landlord must not have waived the right to forfeit. 4) The landlord must serve a LPA 1925, s 146 Notice. 5) The landlord can then forfeit the lease by peaceable re-entry or court order. 6) The tenant, and any sub-tenant, can apply for relief from forfeiture.
What are the available remedies for a landlord in the event of a breach of a rent covenant?
In the event of a breach of a rent covenant, a landlord has the following remedies available: action for debt and forfeiture. Action for debt involves suing the tenant on their covenant to pay rent, while forfeiture allows the landlord to bring the lease to a premature end.
What happens if the breach is incapable of remedy or not remedied within a reasonable time?
If the breach is incapable of remedy or not remedied within a reasonable time, the landlord can proceed to forfeit the lease by physical re-entry (in the case of commercial premises only) or by court order.
What factors does the court consider when granting relief from forfeiture?
When granting relief from forfeiture, the court considers factors such as the wilfulness and blatancy of the breach, the gravity of the breach, the landlord’s motives for wanting forfeiture, the damage to the premises, and whether the breach can be remedied. Relief is usually given on the condition that the breach is remedied and the tenant undertakes not to breach the covenant again.
What is the purpose of the Leasehold Property (Repairs) Act 1938?
The Leasehold Property (Repairs) Act 1938 provides additional protection for tenants in case of a breach of a repair covenant. It limits the landlord’s ability to enforce a repairing obligation and requires the landlord to inform the tenant of their right to serve a counter notice.
What is the purpose of a break clause in a lease?
A break clause is a provision in a lease that allows either party to serve notice during its currency to bring the lease to a premature end. It provides flexibility for both the landlord and the tenant to terminate the lease before the fixed term expires.
What is the process for applying for relief from forfeiture?
Under LPA 1925, s 146(2), the tenant may apply to the court for relief. The court may grant or refuse relief based on all the circumstances. The tenant applies for relief under LPA 1925, s 146(2) in cases of breach of covenants other than rent. The tenant must apply for relief before a court order is made. If the landlord has exercised its right by peaceable re-entry, relief can still be given under s 146(2) if the tenant applies within a reasonable time.
What is the purpose of a deed of surrender?
A deed of surrender is often entered into to document the agreement between the landlord and the tenant when a lease is surrendered. It formalizes the handing back of the lease by the tenant to the landlord, resulting in the premature termination of the lease.
What are the remedies available to a tenant if the landlord is in breach of covenant?
If the landlord is in breach of a covenant, the tenant has several remedies available, including specific performance or injunction, damages, and self-help. Specific performance or injunction may be sought if the landlord is in breach of repair or maintenance obligations. Damages can be claimed, and self-help can be exercised in the case of repair obligations.
What remedies does the landlord have for breach of a rent covenant?
If the tenant is in breach of a rent covenant, the landlord can sue the tenant for the debt or use the Commercial Rent Arrears Recovery (CRAR) process. CRAR allows the landlord to serve notice and take control of the tenant’s goods at the premises to recover the arrears.
How does the purchase of the freehold reversion affect a lease agreement?
If the tenant purchases the freehold reversion and becomes both the landlord and tenant at the time, this will end the lease by merger. The lease merges into the freehold title and is extinguished.
Why would a tenant choose to exercise a break clause in a lease agreement?
A tenant might choose to exercise a break clause in a lease agreement to have the option to terminate the lease on a fixed date or on a rolling basis. This provides flexibility and allows the tenant to end the lease if needed.
How does surrender affect the obligations of the parties in a lease agreement?
When surrender occurs in a lease agreement, the parties agree to end the lease before the end of the term. This releases both parties from their obligations under the lease.
A tenant fails to carry out repairs to the property in accordance with their repairing covenant. Which remedy should the landlord be advised to pursue?
Damages
Distress
Inhibitory injunction
Specific performance
Damages
What is the definition of commercial rent arrears recovery?
Seven days’ notice served on a commercial tenant that the landlord is going to seize goods from the leasehold property because of a failure to pay rent.
Which of the following would not be an appropriate remedy for a landlord to pursue in respect of a tenant’s failure to pay the rent due under the lease?
Forfeiture
Specific performance
Commercial rent arrears recovery
Action for debt
Specific performance
What is a break clause?
When either a landlord or a tenant is allowed by the lease to bring the lease to a premature end.
A tenant is in breach of its rent covenant and the landlord wishes to bring the lease to an end. Which method of terminating the lease would you advise the landlord to use?
Forfeiture.
Surrender.
Effluxion of time.
Notice to quit.
Forfeiture.
How much notice must either a landlord or a tenant serve to bring an annual periodic tenancy to an end?
Half a year’s notice.
A tenant pays rent monthly in advance under the terms of their lease. The tenant has failed to pay the rent for the last three months and the landlord now wishes to forfeit the lease. The landlord’s agent has sent a rent demand for the next month’s rent but is unaware of the breach of the rent covenant.
Which of the following statements is correct about whether the landlord has a right to forfeit?
The landlord may forfeit the lease as the landlord did not send out the rent demand; therefore there has been no waiver.
The landlord may not forfeit the lease as the agent (who acts for the landlord) has waived the right to forfeit. The landlord’s right to forfeit will arise in the subsequent month if no rent demand is sent out for that month’s rent payment.
The landlord may not forfeit the lease as the agent (who acts for the landlord) has permanently waived the right to forfeit as this is a non-continuing breach.
The landlord may forfeit the lease as the agent, who acts for the landlord, was unaware of the breach of covenant; therefore there has been no waiver.
The landlord may not forfeit the lease as the agent (who acts for the landlord) has waived the right to forfeit. The landlord’s right to forfeit will arise in the subsequent month if no rent demand is sent out for that month’s rent payment.
Which of the following statements is correct in respect of exercising the right to forfeit?
In the case of mixed use business and residential premises, a landlord may forfeit by either peaceable re-entry or by court order.
In the case of business premises, a landlord may forfeit by either peaceable re-entry or by court order.
The type of premises is irrelevant; a landlord may choose to forfeit by either peaceable re-entry or by court order.
In the case of residential premises, a landlord may forfeit by either peaceable re-entry or by court order.
In the case of business premises, a landlord may forfeit by either peaceable re-entry or by court order.
Correct. In the case of residential or mixed use premises however, a landlord may only forfeit by court order.
Which of the following breaches of covenant is classed as non-continuing?
Using the property to run a business instead of as a residence in breach of the user covenant.
Subletting the property without the landlord’s consent.
Failing to fix the roof of the property in breach of the repair covenant.
Using the property for an illegal use in breach of the covenant against immoral or illegal use.
Failing to insure the property in breach of the covenant to insure.
Subletting the property without the landlord’s consent.
A landlord forfeits a lease for non-payment of rent via a court order.
Which of the following statements is correct in respect of when relief may be granted?
The tenant will not be granted relief after the date of the court order even if all the arrears and costs are paid.
The tenant may be granted relief up to a year after the date of the court order.
The tenant may be granted relief after the date of the court order if all the arrears and costs are paid even if the landlord has granted a new lease to a third party.
The tenant may be granted relief after the date of the court order if all the arrears and costs are paid.
The tenant may be granted relief after the date of the court order if all the arrears and costs are paid.
A landlord forfeits a lease by peaceable re-entry for non-payment of rent. Which of the following statements is correct?
The tenant may be granted relief after the date of the peaceable re-entry if all the arrears and costs are paid.
The tenant will not be granted relief after the date of the peaceable re-entry even if all the arrears and costs are paid.
The tenant may be granted relief after the date of the peaceable re-entry if the circumstances are exceptional.
The tenant may be granted relief after the date of the peaceable re-entry if the application for relief is made within six months of the peaceable re-entry.
The tenant may be granted relief after the date of the peaceable re-entry if all the arrears and costs are paid.
A landlord wishes to forfeit a lease for non-payment of rent by the tenant. Which of the following statements is correct?
The landlord must make a formal demand for the rent due on the day when it becomes payable unless the lease waives this requirement.
The landlord must make a formal demand for the exact amount of rent due on any day after it becomes payable upon the premises between the hours of sunrise and sunset.
The landlord must serve a s 146 statutory notice on the tenant.
The landlord can immediately forfeit the lease by court order or peaceable re-entry
The landlord must make a formal demand for the rent due on the day when it becomes payable unless the lease waives this requirement.
Which of the following covenants is unlikely to be capable of remedy?
Subletting in breach of covenant.
Failure to insure the premises.
Change of use in breach of covenant.
Failure to decorate the premises.
Unauthorised alterations to the premises.
Subletting in breach of covenant.
In which of the following scenarios is a s 146 notice required to be served on the tenant by the landlord?
Where there has been a breach of any covenant other then the covenant to pay rent
Where there has been a breach of the covenant to pay rent
Where the breach is capable of remedy by the tenant
Where there has been a breach of the covenant to repair
Where there has been a breach of any covenant other then the covenant to pay rent
This is correct. Whenever there has been a breach of a covenant other than the covenant to pay rent, the landlord must serve a s 146 notice on the tenant if it wishes to forfeit the lease. This applies regardless of whether the breach is capable of remedy or not. Note, there is additional protection if the breach is of a repair covenant. The landlord (in addition to serving the s 146 notice) must also inform the tenant of its rights (under the Leasehold Property (Repairs) Act 1938) to serve a counter notice within 28 days. If the tenant serves a counter notice, the landlord cannot proceed to claim forfeiture or damages without first obtaining the lease of the court.
What is an easement?
An easement is a proprietary right to use and enjoy land that belongs to someone else. It can involve rights of way, drainage, storage, and parking on neighboring land.
What is an implied legal easement?
An implied legal easement is an easement that is implied into a transfer deed or a legal lease. It takes its status from the status of the document it is implied into. All easements implied by the LPA 1925, s 62 are implied legal easements.
What are express easements and how are they created?
Express easements are created either by way of grant or reservation through an explicit legal process. To be an express legal easement, the right must be granted or reserved forever or for a set period of time. It must also be created by a deed and substantively registered.
What are some questions to ask when determining if a right is an easement?
Some useful questions to ask are: Does the right benefit any owner of the land? Does it cease to be of use once the dominant owner has parted with the land? Does the right make the dominant land a better or more convenient property? Does the right add value or amenity to the dominant land? Problems arise when the right appears to benefit a business as well as the land.
What is the rule in Wheeldon v Burrows?
The rule in Wheeldon v Burrows is a method of implied acquisition where an easement has not been acquired expressly. It implies the grant of an easement (where one has not been expressly granted) but not the reservation of an easement. The requirements for the rule to apply include the right being claimed being continuous and apparent, necessary for the reasonable enjoyment of the dominant land, and in use by the common owner at the date of the transfer or lease.
What are the different parties involved in an easement?
In an easement, the person who receives the benefit is the grantee, and their land is the dominant tenement. The person who grants the easement is the grantor, and their land is the servient tenement.
How does the duration of an implied legal easement differ when it is implied into a lease versus a transfer deed?
If an implied legal easement is implied into a lease, it will come to an end when the lease comes to an end. However, if it is implied into a transfer deed, then the easement will last along with the freehold.
What are the different types of implied easements?
There are two types of implied easements: implied legal easements and implied equitable easements. Implied legal easements are implied into transfer deeds or legal leases, while implied equitable easements are implied into contracts or equitable leases.
What happens if a purported legal easement fails to meet the requirements for an express easement?
If a purported legal easement fails to meet the requirements for an express easement, it may still be recognized as an equitable easement if it complies with the necessary criteria outlined in LP(MP)A 1989, s 2. Otherwise, it can only be an equitable easement if it does not meet the definition of a legal easement in LPA 1925, s 1(2)(a).
How are easements created?
Easements can be created by express agreement in a document that complies with relevant statutory formalities. They can also be created impliedly without writing, or by prescription where there is uninterrupted user for at least 20 years without force, secrecy, or permission.
What is the difference between an implied legal easement and an implied equitable easement in terms of enforceability?
Implied legal easements are binding in registered land as overriding interests and in unregistered land because legal interests bind the world. On the other hand, implied equitable easements must be protected to be enforceable, either by notice in registered land or by a Class D(iii) Land Charge in unregistered land.
What are the formalities for creating express legal easements?
To be an express legal easement, the right must be granted or reserved forever or for a set period of time: LPA 1925, s 1(2)(a)
It must be created by a deed: LPA 1925, s 52 and LP(MP)A 1989, s .1 To be a deed, a document must comply with the formalities in LP(MP)A 1989, s 1:
Must be clear it is intended to be a deed
Signed by grantor and witnessed
Delivered /dated
It must be substantively registered: LRA 2002, s 27(2)(d).
What is the purpose of the LPA 1925, s 62?
The purpose of the LPA 1925, s 62 is to imply the grant of an easement when it has not been acquired expressly. It can be used to imply an easement in situations where there has been prior diversity of occupation, or in situations where the right being claimed is continuous and apparent.
What is the difference between positive and negative easements?
Positive easements generally enable the holder to enter or use the servient land, while negative easements do not involve entering or using the servient land. Negative easements are rare and are treated with caution by the courts.
How can a dominant owner enforce an easement?
To enforce an easement, the dominant owner must have the benefit of the easement and the ability to sue. As between the original parties, a properly created easement is always enforceable by the dominant owner against the servient owner. If the dominant land changes hands, the benefit, which is part of the land, passes with the transfer of the land, enabling the dominant owner to enforce it.
Can an easement be implied by necessity? Provide an example.
Yes, an easement can be implied by necessity in cases where the dominant land is landlocked and cannot be accessed without a right of way. For example, if A sells part of their land to B and there is no alternative access route, an easement of necessity may be implied to allow B to access their land.
How do easements differ from other rights, such as licenses and restrictive covenants?
Easements confer proprietary rights in land, while licenses confer personal rights that cannot be enforced against a third party. Restrictive covenants primarily restrict what can be done on the servient land, unlike easements that confer a right over the servient land.
What is the requirement for the dominant and servient land to be sufficiently proximate to each other?
The dominant and servient land must be sufficiently proximate to each other. Normally, they will be adjoining, but this is not always the case. In Pugh v Savage [1970] 2 QB 373, there was a right of way over one field to get to another, even though the dominant and servient tenements weren’t adjoining. They were close enough for the dominant land to derive a benefit from the right.
What are the requirements to be an easement?
o There must be a dominant and servient tenement
o The right must accommodate the dominant tenement. If a right benefits a business, it will benefit the land if the business is connected to the use of the land.
o There must be no common ownership
o The right must lie in grant
What are the requirements for the rule in Wheeldon v Burrows to apply?
The requirements for the rule in Wheeldon v Burrows to apply include the right being claimed being continuous and apparent, necessary for the reasonable enjoyment of the dominant land, and in use by the common owner at the date of the transfer or lease. The rule can only operate on a sale or lease of part when there was a common owner and occupier of the whole immediately prior to the transfer or lease.
What the requirements for an easement to be equitable?
Must be made in writing
Must include all expressly agreed terms
Must be signed by both parties
o Easements which do not fall within the definition of legal easements in LPA 1925, s 1(2)(a) because they are not granted or reserved for a freehold or leasehold term can only be equitable. These can be described as ‘inherently equitable’ easements.
o This type of equitable easement is much less formally created. The minimum formalities are set out in LPA 1925, s 53(1)(a):
Must be made in writing
Must be signed by the grantor
What is the significance of grants and reservations in relation to easements?
A grant exists when a landowner sells or leases part of their land to someone else and gives them an easement over the land that has been retained. A reservation exists when a landowner sells or leases part of their land and retains a right over the land sold or leased. Reservations are strictly construed against the person reserving them.
What is the upgrade effect of the LPA 1925, s 62?
The upgrade effect of the LPA 1925, s 62 refers to the interpretation that allows the statute to imply a brand-new easement into a document. It operates to upgrade informal rights into full legal easements. This effect has been applied in cases such as Wright v Macadam and P&S Platt v Crouch.
How are easements distinguished from quasi-easements and public rights?
Quasi-easements refer to situations where landowners use paths on their own land and are not enjoying easements. Public rights, like rights of way, can be similar in scope to easements but are exercised by the general public rather than an individual or particular body.
What are the requirements for a right to be considered an easement in terms of grant and description?
The right must lie in grant, meaning it must be capable of forming the subject-matter of a deed. The right must also be capable of reasonably exact description, where the nature and extent of the right are clear enough for the court to know exactly what is to be enforced. Additionally, the right must be judicially recognized and within the general nature of rights traditionally recognized as easements.
What is the process of implying an easement by common intention?
An easement may be implied by common intention when land is sold or leased for a specific purpose, and the easement is essential to achieve that purpose. The specific purpose must be known to both parties, and there must be a mutual intention for the property to be used in a definite and particular manner.
What are the requirements for an implied legal easement to be enforceable against a new servient owner in registered land?
In registered land, an implied legal easement will be an overriding interest if it meets certain conditions. These conditions include the easement being within the actual knowledge of the new owner, being obvious on a reasonably careful inspection of the servient land, or having been exercised within a year before the transfer of the servient land.
What is the difference between an easement and a profit a prendre?
An easement does not confer the right to take anything from the land, while a profit a prendre does. A profit a prendre grants the right to take produce, animals, fish, or minerals from the land.
What are the requirements for the upgrade effect of the LPA 1925, s 62 to apply?
The requirements for the upgrade effect of the LPA 1925, s 62 to apply include prior diversity of occupation of the dominant and servient land, an informal permission or license granted to the occupier of the dominant tenement to use the servient land, and a conveyance (transfer by deed or legal lease) of the dominant tenement.
What is the burden of proof when relying on an implied easement by common intention?
When relying on an implied easement by common intention, the burden of proof is heavy. The seller or landlord must show that the specific easement was mutually intended, and it is not enough to show that the right was openly exercised prior to the first transaction.
What are some examples of rights that have been judicially recognized as easements?
Some examples of rights that have been judicially recognized as easements include the right of way, the right of drainage and other rights through pipelines, the right of support, the right to use sporting and leisure facilities, and the right to use land for recreational purposes. Even if a right has not previously been recognized as an easement, it can still be capable of being one as the list of easements is not exhaustive.
What is the difference between implied legal easements and implied equitable easements?
Implied legal easements are implied into transfer deeds or legal leases, while implied equitable easements are implied into contracts or equitable leases. The status of an implied legal easement takes its status from the document it is implied into, while an implied equitable easement will come to an end when the lease comes to an end if it is implied into a lease, or it will last along with the freehold if it is implied into a transfer deed.
How can an easement be created impliedly?
An easement may be deemed to have been created impliedly by one of several recognized methods. For example, an easement can be implied into a document or created by prescription through uninterrupted use for at least 20 years.
What is the status of an easement implied by common intention?
An easement implied by common intention can be either legal or equitable, depending on the status of the document it is implied into. If it is implied into a transfer deed or a legal lease, it is considered a legal easement. If it is implied into a contract, it is an equitable easement.
What disqualifying factors can prevent a right from being considered an easement?
If any one of the following factors is present, the right cannot be an easement and can only be a personal license: if the use amounts to exclusive possession, if the use is exercised with permission, if the use requires additional payment by the servient landowner, or if the servient owner is left with no reasonable use or possession and control of the servient land.
What is the significance of prior diversity of occupation in the application of the LPA 1925, s 62?
Prior diversity of occupation is a requirement for the application of the LPA 1925, s 62 in situations where land has been divided. It is not necessary when the right being claimed is continuous and apparent. The recent cases of P&S Platt v Crouch and Wood v Waddington have held that prior diversity of occupation is not necessary when the right is continuous and apparent.
What happens if a right requires the servient tenement owner to spend extra money?
If the exercise of a right by the dominant owner requires the servient tenement owner to spend extra money, the right is disqualified from being an easement as a positive obligation is inconsistent with the concept of an easement. Additionally, the servient tenement owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement. Instead, the dominant owner must allow the servient owner onto the servient land to carry out any repairs at the dominant owner’s expense.
What is the requirement for the dominant owner to exercise the right as of right?
Express permission will almost inevitably be given when a right is first used. However, after the initial grant, the dominant owner must exercise the benefit as of right. Enjoying the benefit as of right is the essence of an easement. If the dominant owner asks for permission every time the right is exercised, it cannot be an easement.
What is the purpose of excluding the operation of the rule in Wheeldon v Burrows and the LPA 1925, s 62 in property deals?
The operation of the rule in Wheeldon v Burrows and the LPA 1925, s 62 is commonly excluded from property deals to avoid any unintended consequences. This is because these rules can lead to the creation of easements without the parties involved having given due regard to them.
What is an example of a case where a right was not considered an easement due to the lack of enjoyment as of right?
In Green v Ashco Horticultural Ltd [1966] 1 WLR 889, the claimant claimed a right to park a van on the defendant’s land. However, the defendant was only exercising the right to park insofar as the servient owner permitted. By moving the van on request, the defendant was acknowledging that they did not park on the land as of right but by permission.
What is the significance of continuous and apparent rights in the rule in Wheeldon v Burrows?
In the rule in Wheeldon v Burrows, the right being claimed must be continuous and apparent. To be continuous, the right need not have been enjoyed constantly or incessantly, but there must be some degree of permanence. To be apparent, there must be some clue as to the existence of the right from a careful inspection of the land. The right must also be necessary for the reasonable use of the land.
What are the remedies available for the enforcement of an easement?
The remedies available for the enforcement of an easement include a prohibitory injunction to prevent interference with the enjoyment of the easement, damages in lieu of or in addition to an injunction, and a mandatory injunction to remove obstruction.
What is the difference between a grant and a reservation in relation to easements?
A grant exists when a landowner sells or leases part of their land and gives an easement over the land that has been retained. A reservation exists when a landowner sells or leases part of their land and retains a right over the land sold or leased. Reservations are strictly construed against the person reserving them.
What are the requirements for a right to be considered an easement in terms of additional expenditure and permission?
A right is disqualified from being an easement if the exercise of the right requires the servient tenement owner to spend extra money or if the dominant owner asks for permission every time the right is exercised. Additionally, the servient owner is not obliged to carry out repairs or maintenance to enable the dominant owner to enjoy an easement.
What is the effect of the rule in Wheeldon v Burrows on the sale or lease of part of a property?
The rule in Wheeldon v Burrows can only operate on a sale or lease of part when there was a common owner and occupier of the whole immediately prior to the transfer or lease. As soon as there is a division of ownership and occupation of the land, any quasi-easements that existed at the time of the division can become full easements benefiting the land which has now become the dominant tenement, provided the requirements under this rule are met.
What is the difference between implied acquisition and implied reservation of an easement?
Implied acquisition refers to the situation where an easement has been impliedly acquired, while implied reservation refers to the situation where an easement has been impliedly reserved. The rule in Wheeldon v Burrows implies the grant of an easement but not the reservation of an easement.
What are the different modes of implied acquisition in relation to easements?
The different modes of implied acquisition in relation to easements include necessity and common intention. In a grant situation, all modes of implied acquisition can be used. In a reservation situation, only necessity and common intention are available as implied modes of acquisition.
What are the requirements for an easement to be acquired, either expressly or impliedly?
An easement can be acquired expressly by complying with the necessary formalities, such as being in writing and signed by the grantor. It can also be acquired impliedly based on the circumstances. In both cases, the easement must comply with the definition on duration and be within the general nature of rights traditionally recognized as easements.
Under what circumstances can an easement be impliedly granted or reserved by necessity?
An easement can be impliedly granted or reserved by necessity when the land is otherwise incapable of use. This typically applies to situations where the land is landlocked and would be inaccessible without the easement.
What is the significance of Wheeldon v Burrows in relation to implied grant of easements?
Wheeldon v Burrows established that an easement can be impliedly granted when the land is divided for the first time, either by transfer or lease. The newly transferred or leased land becomes the dominant land, and certain conditions must be met for the implied grant to apply
What are the two situations in which s62 easement can be implied?
o The LPA 1925, s 62 can be used to imply an easement in two situations:
a **Wright v Macadam **situation where the land has been divided before the informal permission is given, and the permission becomes an easement when the leased land is re-let or sold; or
a **P&S Platt v Crouch **situation where the land is divided for the very first time by lease or sale of part, if the right is continuous and apparent.
Can s62 be implied in equitable easements?
No, can only be implied in deeds
What are the requirements for s62 implied easement?
Only applies where the right being claimed would have been a grant to the claimant.
There must have been prior diversity of occupation of the dominant and servient land
An informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way. Must have been continuous and apparent/
There must have been a conveyance (i.e. a transfer by deed or a legal lease) of the dominant tenement.
Wheeldon v Burrows requirements?
A
there is a right that was exercised by the servient landowner (so the seller or landlord) at the time of the sale / lease;
the right enhances the land in some way;
the right has been used reasonably regularly; and
the right would be discoverable on a reasonably careful inspection of the land.
What is a reservation?
The land owner creates an easement in favour of their own land when selling to a buyer
What are the requirements for a valid land contract?
A valid land contract must comply with LP(MP)A, s 2. It must be in writing, signed by both parties, and contain all the agreed terms.
What is the difference between proprietary rights and personal rights in land?
Proprietary rights in land are enforceable against third parties and are capable of being enforced in rem. Personal rights, on the other hand, are only enforceable against the person who granted the right and are enforceable in personam.
What are the triggering events that require compulsory land registration?
The triggering events for compulsory land registration include the transfer of the freehold estate by sale, gift, or court order; grant of a lease for more than seven years; assignment of a lease with more than seven years remaining; assent or vesting deed of the freehold or leasehold with more than seven years remaining; grant of a lease to take effect in possession more than three months after the date of the grant; and first legal mortgage of the freehold or leasehold with more than seven years remaining
Can a land contract be varied? What are the requirements for a valid variation?
A land contract can be varied, but any variation must comply with LP(MP)A 1989, s 2. The case of McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38 considered this issue and held that a material term in a land contract must also comply with LP(MP)A 1989, s 2 to be valid.
What are the two recognized legal estates in land?
The two recognized legal estates in land are the freehold estate and the leasehold estate. The freehold estate is equivalent to absolute ownership of land and lasts indefinitely, while the leasehold estate lasts for a certain duration and is granted out of the freehold estate.
What are the requirements for a valid deed in a property sale?
A valid deed must comply with LP(MP)A 1989, s 1. It must be clear on the face of the document that it is intended to be a deed, be validly executed, and be delivered. A standard form of transfer deed, such as a TR1, is commonly used.
What is first registration in land law?
First registration refers to the requirement to register unregistered land when it is sold for the first time since December 1, 1990. It triggers the need to create a registered title for the land.
What is commonhold and how does it differ from a long lease?
Commonhold is a type of freehold that was introduced by the Commonhold and Leasehold Reform Act 2002. It is created out of a freehold registered estate and is designed to meet the needs of owners of flats or apartments. Unlike a long lease, commonhold is not a declining asset and does not have an overall landlord. Instead, there is a commonhold association responsible for maintaining communal areas.
What is the significance of the case Walsh v Lonsdale (1882) 21 Ch D 9 in relation to land contracts?
In the case of Walsh v Lonsdale, a land contract was given proprietary status based on the equitable maxim that ‘equity regards as done that which ought to be done’. This case established that a contract to create or transfer a legal property right will create a proprietary right in equity if the remedy of specific performance is available.
What are incorporeal hereditaments?
Incorporeal hereditaments are the benefit of any proprietary rights that the land has but which have no physical substance. For example, an easement to park on a neighboring land is an incorporeal hereditament.
What is the purpose of the Law Society Fixtures and contents form (Form TA10)?
The purpose of the Law Society Fixtures and contents form (Form TA10) is to avoid a dispute about whether an item is a fixture or chattel. It allows the buyer and seller to agree on which items are to pass on the sale.
What are the restrictions on a landowner’s rights in the airspace above their land?
An owner’s rights in the airspace above their land are restricted to such height as is necessary for the ordinary use and enjoyment of the land and its structures. Anything that overhangs a neighbor’s land without permission is likely to be considered a trespass.
What is the purpose of distinguishing between fixtures and chattels in a sale?
Distinguishing between fixtures and chattels in a sale is important to determine which items are included in the sale. This helps avoid disputes and ensures clarity for both the buyer and seller.
What is the distinction between the upper and lower airspace?
The law distinguishes between the upper airspace and the lower airspace. The upper airspace has no exact height and is the portion necessary for the landowner’s ordinary use and enjoyment. The lower airspace is to such height as is necessary for the reasonable enjoyment of the particular piece of land.
When does a structure overhanging someone’s property become a trespass?
If a structure overhangs someone’s property in the lower airspace, it is considered a trespass irrespective of whether damage is caused to the property.
What is the legal principle regarding ownership of the ground beneath the surface of the earth?
The general principle is that a conveyance of land carries with it all that is beneath the surface. However, there are exceptions to this principle, such as certain minerals that belong to the Crown.
What information is included in the Proprietorship Register in land registration?
The Proprietorship Register contains details of the owner of the legal estate and the class of title, such as title absolute or possessory title. It also includes any restrictions on the owner’s ability to deal with the land, such as a mortgage restriction preventing a sale without the lender’s consent.
What information is included in the Charges Register in land registration?
The Charges Register contains the details of any burdens on the land, such as restrictive covenants, positive covenants, easements, and mortgages over the land. It also includes the details of any leases granted out of the title.
What is the legal test for determining if an object is a fixture or a chattel?
The legal test has two parts: the degree of annexation test and the purpose of annexation test. The degree of annexation test considers how firmly the object is fixed to the land, while the purpose of annexation test considers why the object is attached to the land.
What are overriding interests and how do they affect land registration?
Overriding interests are interests that do not appear on the title but will still be binding on a new landowner. An example of an overriding interest is a legal lease that is granted for a term of 7 years or less. Only interests that have been correctly entered on the register will be enforceable against a purchaser, except for those deemed by the LRA 2002 to be ‘overriding’.
What are the different classes of title in land registration?
The different classes of title in land registration are Absolute Title, Qualified Title, Good Leasehold Title, and Possessory Title. Absolute Title is the best form of ownership and is most common. Qualified Title may be given if there is a defect in the title. Good Leasehold Title is granted when the Land Registry is satisfied with the leaseholder’s title. Possessory Title is given when there are no title deeds to prove ownership.
What is the purpose of keeping the register updated in land registration?
Keeping the register updated ensures that it is an accurate reflection of a piece of land at any one time. Failure to register certain transactions means that the transaction is not legally recognized, and the buyer is not recognized as the new legal owner until registration has taken place.
