land law Flashcards
what kind of interest is a restrictive covenant?
only ever equitable
what kind of interest can an equitable owner grant in land?
only an equitable interest - cannot grant a higher interest than you possess
when will equity recognise a failed legal arrangement, e.g. equitable lease?
where there is:
- a contract
- comply with the relevant requirements
- clean hands
what happens where parties have failed to create a required deed?
the court will find a contract giving rise to the equitable right
what is the test for fixtures or chattels
(1) degree of annexation - strong degree raises presumption of fixture
(2) purpose of annexation - if only fixed for enjoyment of the item, not fixture
requirements for a deed
i. in writing
ii. clear on its face that it is a deed
iii. signed
iv. witnessed
v. delivered
what is a parol lease
lease for 3 years or less which may be made without deed if tenant in immediate possession and pays market rent
4 unities of joint tenancy
unity of interest
unity of title
unity of time
unity of possession
what are the tests for joint tenancy
four unities, words of severance in transfer and equity follows the law
how may interest be severed
WRITTEN: no need to be signed, express immediate desire to sever, received by all other tenants
INFORMAL: mutual agreement/conduct, or disposition of share, or bankruptcy
requirement of legal easement
must be forever or for a fixed and ascertainable time
express easement
knowing and deliberate agreement, via deed
easement implied by necessity
land locked property, where it could not be used at al without the easement
easement implied by common intention
where land is conveyed for a known purpose and the easement is required for that purpose
Wheeldon v Burrows easement
converts quasi-easement where:
1. it existed prior to sale
2. it is continuous + apparent
3. right is necessary for reasonable enjoyment
4. right is in use at time of sale
s62 LPA 1925 easement
passes rights on conveyance where:
i. conveyance
ii. diversity of occupation (unless right is continuous and apparent
iii. privilege is existing
iv. must be capable of being an easement
easement by prescription
where easement has been in use over 20 years
formalities of restrictive covenant
not capable of being legal. formalities = in writing and signed
can the burden of a restrictive covenant pass?
only in equity under Tulk v Moxhay where:
i. covenant is negative
ii. touches and concerns the land
ii. servient owner has notice
how to discharge a covenant in the court
s84 LPA 1925 where covenant is obsolete or unreasonable
formalities of mortgage
deed, but equitable mortgage arises where deed falls short
lenders powers in mortgage
i. possession
ii. power of sale
iii. debt action
iv. appointment of receiver
v. foreclosure, when legal date of redemption has passed
when can a lender exercise power of sale
i. it exists
ii. it has arisen
iii. it has become exercisable
when does power of sale arise & become exercisable
arises when mortgage is due, exercisable when:
i. express provision allows it
ii. lender has given notice and borrower doesn’t pay for 3 months
iii. interest in arrears for 2 months
iv. borrower has breached a term
