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Land Law Flashcards

1
Q

What are fixtures and chattels?

A

Fixtures are included within the definition of land and must be passed to the buyer.

Chattels retain their characteristics as personal property and can be removed on sale.

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2
Q

What is the test to determine whether an object is a fixture or a chattel?

A
  1. The degree of annexation - is the object resting on its own weight or is it attached to the land? If attached and removed, would it cause significant damage? If so, it is likely a fixture.
  2. The purpose of annexation - is the object attached for better enjoyment of the object, or better enjoyment of the land? If the latter, then it is likely a fixture.
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3
Q

What estates are capable of being legal?

A

Freehold - permanent tenure of the land and freedom to dispose of it.
Leasehold - tenant is granted exclusive possession of land for a fixed period.

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4
Q

What are the two types of lease?

A

Fixed term lease - where the maximum duration is certain

Periodic lease - for a fixed period which extends itself automatically until either the landlord or tenant terminates by notice.

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5
Q

What interests in land are capable of being legal?

A

Easements and profits
Rentcharges
Mortgages
Interests that arise by operation of statute
Rights of entry

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6
Q

What interests in land can be equitable?

A

All property rights are capable of being equitable. Examples include:

  • Contract to create or transfer a legal estate or interest
  • Failing to comply with the relevant formalities
  • Grant where someone only owes the equitable rights
  • Grant of an estate which can only exist in equity
  • By express or implied trust
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7
Q

When land is placed in a trust, how are the types of interest laid out?

A

The legal title is separated to the equitable interest. The trustee/settlor holds the legal title and the beneficiary has an equitable interest.

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8
Q

What types of trusts can exist as equitable interests?

A

Express
Implied (resulting or constructive)

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9
Q

What are resulting trusts in the context of equitable interests?

A

A person who is not the legal owner who contributes directly to the purchase price - the person obtains an equitable interest proportionate to their contribution.

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10
Q

What are constructive trusts in the context of equitable interests?

A

A person who is not the legal owner makes a contribution to the property by way of mortgage payments or making substantial improvements. It is quantified by taking into account the parties’ conduct, the direct and non-direct financial contributions and any non-financial contributions.

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11
Q

What interests are equitable by nature?

A

Beneficial interests under a trust
Restrictive covenants
Estate contracts

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12
Q

What are estate contracts and examples of such?

A

A contract which exists between the period of exchange of contracts and completion.

Examples - sale of freehold or leasehold, an option, right of pre-emption, grant of a lease and a grant of an easement or profit

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13
Q

What is a home right?

A

A statutory right of occupation of the matrimonial home for a non-owning spouse or civil partner.

They do not create an interest in land and exist independently under a trust.

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14
Q

What interests do licences grant?

A

A licence only grants a personal right and does not create an interest in land - it is binding between the original parties.

They can be revoked at any time.

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15
Q

What are the formalities to create or transfer a legal estate or interest?

A
  • Must be in writing
  • Must be clear on its face that its a deed
  • Signed
  • Witnessed
  • Delivered
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16
Q

What is an exception to the formalities to create or transfer a legal estate or interest?

A

Parol leases which must be:

  • For 3 years or less (including periodic leases)
  • The tenant must have the immediate right to possess and enjoy the land
  • The tenant must pay market rent
  • The landlord must not charge a fine or premium (one-off capital sum)
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17
Q

What are the formalities for a contract for the creation or transfer of rights in land?

A
  • Must be in writing
  • Must incorporate all expressly agreed terms in one document
  • Be signed by or on behalf of all parties
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18
Q

How can equitable rights in land be created?

A

By grant of an estate/interest which can only exist in equity e.g. restrictive covenants

By grant of an estate/interest by a person who only owns an equitable right

By a contract to create or transfer a legal estate or interest

Failure to comply with formalities of a legal estate transfer/creation

By express trust (must be written)

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19
Q

When will equity recognise an equitable property right when there has been an invalid deed or a contract for the creation or transfer of rights of land?

A

It must have:

  • A valid contract
  • Complying with section 2 LPMPA
  • Clean hands
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20
Q

How do you create a legal easement?

A
  • Must be in writing
  • Must be clear on its face that its a deed
  • Signed
  • Witnessed
  • Delivered
  • Must be granted for a period equivalent to a freehold or leasehold i.e. forever or a fixed duration.
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21
Q

What is the concept of co-ownership?

A

Where more than one person owns land at the same time (concurrent).

When there is concurrent sharing a trust of land is created.

22
Q

When can trusts of land arise?

A

When a landowner intentionally sets up a trust of their land by transferring the title of the land to trustees for the benefit of others.

Where a person acquires an interest of land owned by another due to conduct.

The land is acquired by more than one owner jointly.

23
Q

Who are trustees and who are beneficiaries?

A

Trustees are the legal owners of the property.

Beneficiaries are the equitable owners of the property.

24
Q

Can a legal estate be held as both joint tenants and tenants in common.

A

No - the legal estate cannot be severed and must be held as joint tenants.

25
Q

What happens if a legal estate is conveyed to a minor?

A

This operates as a declaration of trust where the land is held in trust for the minor.

26
Q

What happens if a legal estate is conveyed to a minor and an adult?

A

The land is vested in the adult in trust for the minor.

27
Q

If a minor is appointed as a trustee, what happens when they turn 18?

A

They do not automatically become trustees when they reach the age of 18.

28
Q

What are the minimum and maximum requirements for the number of trustees?

A

Maximum = 4.

There is no minimum.

29
Q

What are the powers of the trustees?

A

They have all the powers of an absolute owner.

They must consult the beneficiaries (where practicable).

30
Q

What are the two types of co-ownership?

A

Joint tenancy
Tenancy in common

31
Q

What are the key characteristics of a legal joint tenancy?

A

The right of survivorship

They are jointly entitled to the whole of the property (i.e. no shares).

32
Q

What is the right of survivorship?

A

On the death of a joint tenant, their interest passes automatically and immediately to the surviving joint tenant.

33
Q

What are the key characteristics of a legal tenancy in common?

A

No right of survivorship

Each owner is regarded as having a distinct share in the land - this can be equal or unequal.

34
Q

How can you determine whether it is a joint tenancy or a tenancy in common in equity?

A
  1. Are all four unities present?
  2. Is there an express declaration of trust within the deed?
  3. Are there are words of severance within the deed?
  4. Does equity presume a tenancy in common?
35
Q

What are the four unities?

A

Unity of possession - each co-owner has a right to possess all of the land.

Unity of interest - each owner must have identical rights over the land

Unity of title - each co-owner must have acquired their interest from the same document

Unity of time - the co-owners must receive their interests at the same time

36
Q

How do you know if there is an express declaration of trust within the deed?

A

It would contain wording such as ‘Transferred into their joint names as express joint tenants in equity’.

37
Q

What words of severance can indicate that co-owners should have distinct shares?

A

‘To A and B in equal shares’ or ‘Half to A and half to B’ both indicate tenancies in common.

The mention of distinct shares is usually the tell tale sign.

38
Q

Does equity presume a tenancy in common?

A

There is a presumption that the co-owners will be joint tenants in equity on the basis that equity follows the law.

This can be rebutted.

39
Q

How can the presumption that co-owners will be joint tenants in equity be rebutted?

A

When the property is acquired for business use

Unequal contributions to the purchase price

Post-acquisition money management

40
Q

How can a joint tenancy in equity be severed?

A

Formal severance with written notice

OR

Informal severance

41
Q

In terms of severing an equitable joint tenancy, how should the written notice be served?

A

It must use appropriate wording to state they wish to end the joint tenancy immediately

It must be received by all the other joint tenants or deemed to have been received.

42
Q

Can a written notice to sever an equitable joint tenancy be sent by post?

A

For registered post - it is deemed sufficiently served if the letter is not returned.

For ordinary post - it is deemed sufficiently served if it is left at the last known place of abode or business in the UK of the person to be served.

43
Q

How can informal severance of an equitable joint tenancy be effected?

A

Where one tenant disposes of their equitable interest by sale, gift, lease or mortgage (must be in writing and signed)

Mutual agreement (oral agreements can suffice)

By mutual conduct (a common intention)

Bankruptcy - involuntary assignment of the equitable interest to the joint tenant’s trustee in bankruptcy

Homicide - where one joint tenant kills another

Post-acquisition money management

44
Q

What is the effect of severance on an equitable joint tenancy?

A

Where there are two joint tenants in equity, they both become tenants in common of equal shares.

Where there are three or more joint tenants in equity, only the co-owner who severs their joint tenancy becomes a tenant in common.

The share is proportionate to the number of joint tenants.

45
Q

What types of implied trusts can arise due to the parties’ conduct?

A

A resulting trust

A constructive trust

46
Q

How can a resulting trust of land be implied?

A
  1. When a person who does not hold legal title makes a contribution to the purchase of the property
  2. There is no evidence that the contribution was intended as a gift or loan
  3. The contribution must be all of part of the purchase price at the date of acquisition

If all are present, the person holds a beneficial interest in the property proportionate to the contribution made.

47
Q

How can a constructive trust of land be implied?

A

An agreement + detrimental reliance

OR

Conduct + direct financial contribution

48
Q

In terms of implied constructive trusts of land, how can the test of ‘an agreement + detrimental reliance’ be set out?

A

The agreement can be at any time of the purchase or subsequent to it. It is irrelevant if the agreement is based on a trick or is deceitful.

The non-legal owner must have shown they relied upon the agreement to their detriment or significantly altered their position e.g. paying for improvements, paying all of the household bills, working unpaid in the legal owner’s business.

49
Q

In terms of implied constructive trusts of land, how can the test of ‘conduct + direct financial contribution’ be set out?

A

The court looks at the conduct of the parties where they infer a common intention to share the property beneficially

Payment towards the mortgage payments or the initial purchase price can be seen as a direct financial contribution.

50
Q

How are disputes settled between co-owners (i.e. between married/divorcing couples)?

A

Section 14 TLATA
Section 15 TLATA

51
Q

What types of applications may fall under section 14 TLATA in terms of disputes between co-owners?

A

Disputes as to whether the land should be sold

Authorising transactions without the consent of all the trustees

Disputes regarding the occupation of trust land

Disputes regarding size of co-ownership interests

52
Q

What are the types of circumstances that a court should consider when exercising its powers under section 14 of TLATA in terms of disputes between co-owners?

A

The welfare of any resident children

The interests of secured creditors

The intention(s) of the parties

The purpose(s) of the trust of land

The circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property

Flashcards (10 decks)

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