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Constitutional and Administrative and EU Law > Land Law > Flashcards

Land Law Flashcards

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1
Q

how much of the airspace above a property does the landowner own?

A

landowner’s rights only extend to a height needed for ordinary use and enjoyment

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2
Q

what is the general rule with fixtures and chattels (if not contracted out of)

what is the two stage test for determining fixture or chattel?

A

fixtures pass with the land, chattels = personal property so do not pass with the land

degree of annexation - creates a presumption which can be affirmed or rebutted by the purpose of annexation

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3
Q

fixture or chattel?

firmly affixed to the land for the purpose of better enjoyment

ornamental objects

free standing cooker / built in hob and cooker

kitchen units

items installed by a builder e.g. tiles

bathroom fittings (e.g. wash basin)

carpets and curtains

light fittings attached by screws

gas fire connected purely for to function as a fire

objects that improve the architectural design of the property

mobile home

pictures especially made for a specific room

dilapidated greenhouse which is likely to collapse if moved

A

chattel

chattels

free standing = chattel / built in = fixture

kitchen units = fixture

builder = fixtures

bathroom fittings = fixtures

carpets and curtains = chattels

light fittings attached by screws = chattels

gas fire to function as a fire = chattel

chattel

fixture = part of the design of the room

greenhouse = fixture - couldn’t be removed without its deconstruction

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4
Q

what is the main difference between a freehold estate and a leasehold estate

A

freehold = estate can last forever
leasehold = estate lasts for a specific period but not forever

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5
Q

what are the two types of leases?

what is the difference between them?

A

fixed term lease - certain amount of time

periodic lease - keep renewing until landlord or tenant terminate by giving notice

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6
Q

what is a commonhold

A

form of freehold tenure

gives a buyer a freehold interest in their flat or house with communal areas being managed by a commonhold association run by commonhold owners

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7
Q

what are the two ways in which an express trust can be created

A

(a) self- declaration – here the settlor retains the legal title to their property but declares that they hold the property as trustee for the benefit of another person (the beneficiary); or

(b) declaration plus transfer – the settlor declares a trust and transfers legal title to their property to the trustees who hold the property for the benefit of the beneficiaries.

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8
Q

what are the two types of implied trust?

A
  1. resulting trust = A person, who is not the legal owner, contributes directly to the purchase price of the property. The person acquires an interest proportionate to their contribution.
  2. constructive trust = An interest in land is created when a person, who is not the legal owner of the property, makes a contribution to the property other than a direct financial contribution at the time of the purchase. This can include contributing to the mortgage payments or making substantial improvements to the property.
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9
Q

would the following be classed as detrimental reliance on an agreement for the purposes of creating a constructive trust?

  • Paying for improvements to the house out of their own money
  • Paying all of the household bills to allow the legal owner to pay the mortgage
  • Working unpaid in the legal owner’s business.

what will not be seen as detrimental reliance?

A

yes

The detriment must be linked to the agreement and not related to any other motive, such as love and affection.

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9
Q

Any attempt to convey a legal estate to a minor operates ____________

A

as a declaration of trust that the land is held in trust for the minor

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9
Q

max number of trustees?

what happens where this is exceeded?

A

4

the first four named adults = trustees

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10
Q

explain the powers / constraints of trustees

A

they have all the powers of an absolute owner

duty to consult the beneficiaries - only to beneficiaries of full age and who have an interest in possession (entitled to an immediate interest in the land)

trustees must comply with the wishes of the beneficiary (in case this is disputed - act in accordance with the majority in according to the value of their combined interests)

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10
Q

how can co-owners of land go about selling their land?

what happens when the co-owners are in dispute with one another?

A

all trustees must sign a deed

s14 TLATA order to determine how a trustee should be functioning and the extent of different parties rights in land

s15 TLATA = factors the court should consider:
(a) the intentions of the person or persons (if any) who created the trust;
(b) the purposes for which the property subject to the trust is held;
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
(d) the interests of any secured creditor of any beneficiary - usually given the most weight, other than where children are involved

and the wishes of any beneficiaries of age

the above is a non-exhaustive list

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11
Q

what is the test for the creation of a constructive trust as set out by Lord Bridge in Lloyds Bank v Rosset

A

constructive trust = implied trust

1) agreement (at the time of purchase or subsequent to it) + detrimental reliance (or altering your position based on the agreement)

2) conduct + direct financial contribution

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11
Q

beneficial co-owners of land can have their equitable interests either as joint tenants or tenants in common, how is this determined?

A

legal estate = joint tenants

equitable interests = JTs or TICs

equity follows the law = creates presumption of JTs

all four unities should be present if JTs = possession (JTs and TICs have this) (TICs don’t have) the same interests and title and given at the same time

if all four unities = JT presumption persists but can be rebutted if:

express declaration the trust is meant to be TICs

there are words of severence (severence transfers JTs to TICs)

finally does equity intend for it to be JTs or does it fall under an exception - businesses usually TICs / where the contributions of one owner far exceeds that of the other)

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12
Q

if there is no declaration of trust under s1 TLATA, how else might there be a trust?

A

implied trust

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13
Q

how may the equitable interests in a joint tenancy be severed?

what is the impact of this?

A

formally - by express declaration

OR

informally through acts of severence:

alienation - disposing of the equitable interest e.g. via sale
mutual agreement
course of dealing - the parties act in a way that shows they regard their interests as separate (so TICs)

bankruptcy
homicide
money management after acquisition

the equitable interest severed becomes a TIC. the remaining equitable interests remain JTs

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14
Q

what is the different between an easement and a profit a prendre

A

easement - landowner can make use of a part of land for the benefit of their land

profit a prendre - right to go onto someones land and remove something that exists there naturally

15
Q

how is co-owned land sold?

A

all trustees must sign a deed

if it is disputed:

S14 TLATA order - trustees function and extent of each persons rights

S15 - factors to consider :

the intention of the person that created the trust (if someone did create the trust)
the purpose of the property to which the trust is held
minors
bankruptcy

16
Q

for an easement to be legal it must be granted for ___________ or __________ but not ________

A

forever or a set number of years

never an uncertain duration

17
Q

what did Re Ellenborough Park say?

A

set out the characteristics required for an easement

  1. There must be a dominant and a servient tenement.
  2. The easement must accommodate the dominant tenement.
  3. The dominant and servient tenements must not be both owned and occupied by the same person.
  4. The easement must be capable of forming the subject matter of the grant.
18
Q

do the dominant and servient land need to be next to each other?

A

do not need to join each other, but they
should be close enough to establish a connection between the two

19
Q

what is meant in the second stage of the Re Ellenborough Park test - the easement must accommodate the dominant tenement?

A

it must benefit the dominant land (not the dominant landowner)

e.g. does it improve the marketability of the land

if a right benefits a business, it will benefit the land if the business is connected to the use of the land

20
Q

will erecting a sign benefit the dominant land (stage 2 of the Re Ellenborough Park rules)?

A

in Moody v Steggles the sign was on the servient land and directed customers to the business

21
Q

in which circumstances would a quasi-easement become an easement?

A

if the land is partitioned - you cannot have an easement over your own land

22
Q

what happens if a dominant and servient land come back into common ownership?

A

any rights granted over the land in the form of easements are extinguished - doversity of ownership of the land is required

23
Q

what is meant by “The easement must be capable of forming the subject matter of the grant”

A

there must be a capable grantor - must be over 18 own the legal estate + grantee - you cannot grant rights to a village because the group is too vague and fluctuating

(a) An easement must be capable of reasonably exact definition.

(b) An easement must not involve any expenditure by the servient owner.

(c) An easement must not be so extensive as to amount to a claim to joint possession of the servient tenement.

(d) The law is very cautious when it comes to a claim for a new type of negative easement.

24
Q

are you able to grant an easement for the right to light?

A

there is no general right to light

the person claiming the right to light would need to show an infringement of the following :

basically the level of light coming through windows would not be sufficient for the comfortable use of the building bearing in mind the building’s bearing and locality

25
Q

can you grant an easement for a scenic view?

A

no

26
Q

can you grant an easement for recreational purposes?

A

the right to use a communal garden = easement in Re Ellenborough

right use leisure and sporting facilities = easement (Diamond matter)

27
Q

is a servient tenement obliged to maintain and repair to enable the dominant tenement to enjoy the easement

A

obligation is usually with the DT for repair and maintenance but:
-the ST should provide reasonable access to enable the DT to repair/maintain
- the ST will need to contribute to any costs of maintenance - Halsall v Brizell [1957]

except - boundary fences - Crow v Wood recognised a right to require the owner of adjoining land to keep the boundary fence in repair

28
Q

what does the court say in relation to a right to supply hot water being an easement?

A

not capable of being an easement as it forces the ST to spend money

29
Q

in which of the following would the courts be unlikely to grant an easement:

1) parking / storage where there is no limit on how many vehicles are parked/stored on the land and there is no limit on for how long

2) a Claimant who owned part of a shopping centre claiming there was an easement for customers to park in the shopping centre’s car park

A

1) because there was no limit on the amount of cars and for how long = amounted to joint ownership of the land = no easement

2) an easement would be granted provided the car park was sufficiently large

30
Q

what is the courts attitude towards exclusive possession being too intense to amount to an easement?

A

two approaches:

1) reasonable use

Batchelor v Marlow - Marlow had a right to park six cars on commercial land between 8:30am - 6pm Mon - Fri which covered the whole of the servient land

CoA decided the right was too intense to form an easement - the ST had no reasonable use of the land (he could not park in the spaces in the times he would likely need to, nor could he use the land for anything else - the parking covered the land)

2) possession and control test - remember only Privy Council

arguably a more lenient test (more likely to grant an easement applying this test)

it was argued that the test shouldn’t be reasonable use, but should instead be whether the servient land owner retains ‘possession and control’ of the land

Lord Scott noted that where rights to park were granted, the servient owner still retained the ability to build above or under the parking area.

31
Q

what is the courts attitude towards the creation of new easements?

A

new positive easements can be created and are usually done so by analogy to existing easements

the court are reluctant to recognised new negative easements

32
Q

will the court recognise an entitlement to an easement of television reception?

A

no - it would place an immense burden on the owner of the servient land if they wished to build and develop the land

33
Q

list the different ways in which an easement can be created

A
  1. express grant/reservation
  2. implied by necessity
  3. implied by conduct
  4. Wheeldon v Burrows
  5. s62 LPA 1925
  6. prescription
34
Q

what is required for the courts to create an easement under Wheeldon v Burrows?

what is the effect of finding all requirements under Wheeldon v Burrows?

A

only applies to grants not reservations

1) the existence of a quasi easement prior to sale

2) continuous and apparent

3) The right must be necessary to the reasonable enjoyment of the land sold (this is a lower bar than implying an easement via necessity - so if there is an alternative means of access but it is dangerous, the court will deem the easement necessary)

4) the right must be in use at the time of sale

turns quasi-easement into full easement

35
Q

how does s 62 LPA 1925 impact the creation of an easement? what is its role?

A

acts as a word saving provision

means that the buyer of a property is passed all the easements, rights and advantages that accompany the property, even if such provisions are not contained in the conveyance

case law has expanded the remit of section 62 so that it can now be used to create new easements

for example - Wright v MacAdam

Mr MacAdam (‘M’) let a flat to Mrs Wright (‘W’) for one week. She continued in occupation and subsequently M gave her permission to store her coal in his coal shed.

M then granted a new tenancy to W. No reference was made to the coal shed. M then demanded W should pay a weekly amount for the use of the coal shed. W refused.

The court found that when the lease was renewed, there was implied into the renewed lease an easement to store coal in the coal shed. All that was required was the existence of the right at the time the lease was renewed; s 62 automatically implied an easement of storage. The effect was to convert or uplift the permission/ licence given by M into a full legal easement.

36
Q

what are the conditions for section 62 LPA to operate?

A

1) There must be a conveyance as defined in s 205(1)(ii) LPA 1925. This requires an
‘instrument’, ie a written document that has the effect of creating or transferring a legal
estate. (not a contract for sale)

2) there to be diversity of ownership (except with easements to light and where the right has been continuous and apparent)

3) There must be an existing privilege at the date of the conveyance. Section 62 is not
concerned with future rights.

4) The right must be capable of being an easement or profit. If the right lacks the four essential characteristics of an easement in Re Ellenborough Park, s 62 will not cure the defect. However, the claimant does not need to demonstrate that the right is necessary for the reasonable use of the land.

37
Q

list the ways in which an easement can arise through prescription

A
  1. common law
  2. doctrine of Lost Modern Grant
  3. Prescription Act 1832
38
Q

what is required for an easement to be created via prescription?

A

the dominant owner can show the use of the right for at least 20 years

it will be necessary to show that the right has been exercised by or on behalf of a fee simple owner against a fee simple owner

1) continuously and
2) as of right (without force, secrecy or permission)

39
Q

will a right which has been exercised for over 35 years 6-10 times, be classed a continuous use for the purposes of creating an easement through prescription

A

yes - the court considered this was reasonably regular use

40
Q

prescription will ________ under the Prescription Act 1832 if the user can prove uninterrupted enjoyment of the right for a 20 year period

no use for ___________ or ______ = interruption

A

succeed

one year or more

Constitutional and Administrative and EU Law (9 decks)

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