Land Law

Question 1

What are the events triggering first registration?

Answer 1

• Conveyance on sale of freehold land.
• Assent.
• Deed of gift.
• Grant of a lease >7 years.
• Grant of a first legal mortgage.
• Assignment of a lease with an unexpired term of >7 years.

Question 2

What is the time limit to register land?

Answer 2

Within 2 months of completion.

Question 3

What are the consequences of failing to register land?

Answer 3

The transfer will become void and the legal estate will revert to the seller.

For leases/mortgages, the legal estate will revert to the transferor who holds on trust as a bare trustee.

Question 4

What are the types of legal interest in land?

Answer 4

• Mortgage.
• Easement.
• Rentcharge: Used to enforce positive covenants by giving the rent charge owner a right of entry.
• Profit a prendre in gross: Can exist independently of land.
• Profit a prendre appurtenant: Attached to the piece of land.
• Rights of entry: Enables the holder to go on the land in certain situations.

Question 5

What are the types of equitable interest in land?

Answer 5

• Equitable mortgage.
• Restrictive covenant.
• Positive covenant.
• Estate contract.

Question 6

When is proprietary estoppel available?

Answer 6

When it would be unconscionable for the title holder to refuse the claimant’s entitlement:
- There was an assurance that the claimant would have an interest in land, which they reasonably relied on and acted to their detriment as a result.

Question 7

How are third party interests protected (RL)?

Answer 7

By notices or restrictions in the register, e.g.:
- Legal mortgage registered on the Charges Register.
- Legal easement registered as a burden on the Charges Register of the servient tenement and notice on the Property Register of the dominant tenement.
- Tenants in common: Form A restriction on the proprietorship register.

Question 8

How are third party interests protected (UL)?

Answer 8

Bound by legal interests irrespective of notice, but equitable interests can be registered as a land charge against the owner:
- C(i): Puisne mortgage.
- C(iii): General equitable charge, equitable mortgage.
- C(iv): Estate contract.
- D(ii): Restrictive covenant.
- D(iii): Equitable easement.
- F: Non-owning spouse’s statutory right of occupation.

If not registrable, subject to the doctrine of notice.

Question 9

What are the 4 classes of title?

Answer 9

1. Absolute freehold title: Proprietor takes the legal estate with all interests.
2. Possessory title: Based on factual evidence. A claim can be brought by someone with better title.
3. Good leasehold title: Freehold title has not been produced to HMLR.
4. Absolute leasehold title: Where HMLR has inspected all superior titles and the freehold title.

Question 10

Which interests are overriding for registered land?

Answer 10

• Legal leases for 7 years or less.
• Implied legal easements/profits a prendre if purchaser has knowledge, it is obvious on reasonable inspection, or has been exercised within 1 year of the date of disposition.
• A person in actual occupation, unless they failed to disclose on reasonable enquiry or it was not obvious on reasonable inspection (property right needed).

Question 11

Which interests are overriding for unregistered land?

Answer 11

• Lease granted for 7 years or less.
• Legal easement.
• Local land charge.
• An interest belonging to a person in actual occupation.

Question 12

What are the requirements for adverse possession?

Answer 12

1. Actual possession;
2. Exclusive possession; and
3. No permission from the owner.

Question 13

What is the effect of adverse possession for registered land?

Answer 13

The person in adverse occupation only acquires the right to apply for registration of title after 10 years. The registered proprietor has the opportunity to object and this is usually accepted.

Question 14

What is the effect of adverse possession for unregistered land?

Answer 14

The actual owner loses the right to recover the land after 12 years and holds the legal estate on trust for the person in adverse possession, who can then apply for possessory title.

Question 15

What is the maximum number of trustees that can hold the legal estate as joint tenants?

Answer 15

4

Question 16

What needs to be prepared if the equitable interest is held as tenants in common?

Answer 16

A will and declaration of trust.

Question 17

What are the methods of severance to convert a joint tenancy into tenancy in common?

Answer 17

• Written notice: Must show clear intention and be sufficiently served.
• By treating share as separate: E.g. Contracting to sell it.
• By dealing with the equitable interest: Disposing of it, leasing it, or mortgaging it.
• By course of dealings: E.g. Oral agreement to purchase share of another.
• By forfeiture.
• By bankruptcy.

Question 18

What is overreaching?

Answer 18

Buyer taking free of the interests of a behind-the-scenes co-owner.

Question 19

How is overreaching performed?

Answer 19

Paying purchase money to two or more trustees, or a trust corporation (can appoint a second or obtain a written release from the beneficiary of their rights - will sign the contract before exchange).

Question 20

What are ss.14-15 of Trusts of Land & Appointment of Trustees Act 1996 for?

Answer 20

For when co-owners cannot agree how or when to dispose of a property.

Question 21

What does s.14 of the 1996 Act provide?

Answer 21

Allows a trustee/other with an interest to apply to the court for an order relating to their duties, e.g. order to sell or relieve the trustee of the duty to obtain the beneficiaries’ consent or to consult.

Question 22

What does s.15 of the 1996 Act provide?

Answer 22

Sets out factors for a court to consider in determining an application under s.14:
- Intentions of the persons who created the trust.
- Purposes for which the property subject to the trust is held.
- Welfare of any minor who occupies the land as their home.
- The interests of the beneficiaries’ secured creditors.

Question 23

What will the court consider if the relationship has broken down?

Answer 23

• Declaration of trust.
• If the property was transferred to the parties jointly (will be treated as joint tenancy) - challenger will have to prove a different common intention.

Question 24

What are the 4 essential characteristics of an easement?

Answer 24

1. A dominant and servient tenement.
2. It must confer a benefit on the dominant tenement (on the LAND).
3. The dominant and servient tenements must be in separate ownership.
4. The right must be of a type recognised as capable of being an easement and must be described sufficiently to identify it.

Question 25

What are the 4 methods for an easement to be implied?

Answer 25

1. By necessity, e.g. landlocked.
2. By common intention if impossible to otherwise gibe effect to intention.
3. Ancillary, i.e. the realities of circumstances.
4. By existing use: Both tenements previously held by a common owner, if continuous and apparent and necessary to the reasonable enjoyment of the land, and now are used by the seller for the benefit of the land being sold.

Question 26

When is an easement granted by prescription?

Answer 26

If the benefit has been used unchallenged for >20 years without permission or paying the landowner.

Question 27

When are covenants enforceable against successors in title?

Answer 27

When the burden and benefit pass together EITHER at common law OR in equity.

Question 28

How does the burden of a covenant pass in equity?

Answer 28

1. The covenant is negative in nature;
2. The covenant touches and concerns the dominant land;
3. The burden was intended to run with the land (implied under statute); and
4. The successor in title has notice of the covenant by land charge or notice.

Question 29

How does the benefit of a covenant pass in equity?

Answer 29

1. The covenant touches and concerns the dominant land.

Also, one of the three must apply:
1. Annexation: The benefit is attached to the land.
2. Express assignment.
3. Building scheme has been set up.

Question 30

How does the burden of a covenant pass at common law?

Answer 30

Only in certain circumstances:
1. Chain of indemnity covenants.
2. Mutual benefit and burden rule, e.g. cannot use a right of way without contributing to the upkeep of the road.

Question 31

How does the benefit of a covenant pass at common law?

Answer 31

1. The covenant touches and concerns the dominant land;
2. The covenant was intended to run with the land;
3. At the time it was made, the covenantee held the legal estate in the benefitting land; and
4. The assignee of the original covenantee now holds the legal estate.

Question 32

What are the main rights of a mortgagor?

Answer 32

• Right to redeem the mortgage.
• Clauses purporting to give the lender the right to purchase the estate are void.
• Mortgage void if morally reprehensible, improper or unreasonable.

Question 33

Which third party rights are protected in the event of selling mortgaged property?

Answer 33

• Legal tenancy of unregistered land (if >7yrs must be registered, if 7 or less it is overriding).
• Equitable tenancy of unregistered land if registered as a Class C(iv) land charge.
• Tenancies granted after the mortgage was created if authorised.
• Occupiers with an actual interest in the land.
• Cases of undue influence, e.g. if not properly informed.

Question 34

What are the mortgagee’s remedies in a legal mortgage?

Answer 34

1. Sue for debt: After fixed date of repayment.
2. Take possession: If including a dwelling, must be sought through courts.
3. Foreclose: Mortgagee becomes the owner of the property (after contractual date for repayment).
4. Sell: Becomes exercisable if interest payments are >2 months in arrears, or there has been a written request for repayment and >3 months have passed without payment.
5. Right to appoint a receiver as agent of mortgagor: Used in commercial mortgages. The receiver can manage or sell the property.

Question 35

What are the mortgagee’s remedies in an equitable mortgage?

Answer 35

1. Sue for debt.
2. Take possession.
3. Foreclose.
4. Sell.
5. Right to appoint a receiver: Only if made by deed, otherwise a court application is needed.

Question 36

What happens if there are multiple mortgages?

Answer 36

Priority of mortgages applies - remember importance of correctly registering.

Question 37

What are the 3 essential characteristics of a lease?

Answer 37

1. Certainty of term.
2. Exclusive possession.
3. Appropriate formalities, i.e. leases >3 years must be granted by a deed or through equity (protected by notice on CR or Class C(iv) land charge).

Question 38

When is an oral tenancy valid?

Answer 38

1. If <3 years;
2. The tenant takes possession immediately; and
3. The rent is at market price without having to pay a premium.

Oral tenancies can only be assigned by deed.

Question 39

Who is liable for covenants in a subtenancy?

Answer 39

The tenant and the subtenant - important to ensure there is an obligation for the subtenant to perform the covenants in the head lease.

Question 40

What are the 2 ways in which leases often restrict the tenant’s power to assign or sublet?

Answer 40

1. Absolute covenant: Total bar to assignment (rare unless short lease).
2. Qualified covenant: Prohibits assignment unless the landlord gives their consent and other conditions are met. Cannot be unreasonably withheld or delayed, and conditions must be reasonable.