LAND LAW Flashcards
1
Q
What’s the difference between ‘estates’ and ‘interests in land’?
A
- Estates: ownership
- Interests in Land: rights over someone else’s land
2
Q
Estate Contract
A
Arises at a very specific Point when the Parties exchange contracts.
3
Q
Who owns Land in England & Wales?
A
The Crown.
4
Q
Whose Property is Mines and Minerals?
A
Property of the Crown.
5
Q
Concept
**Choses in Action v Choses in Possession
Corporeal Hereditament vs Incorporeal Hereditament
A
- Chose in Action Intangible Personal
- Chose in Possession Tangible Personal
- Corporeal Hereditament Tangible Real
- Incorporeal Hereditament Intangible Real
6
Q
2 Estates
Also called tenure.
A
Freehold & Leasehold
7
Q
What is Legal Ownership and What is Equitable Ownership?
A
- Legal Ownership: Legal right to sell or transfer the piece of land.
- Equitable Ownership: Any beneficial rights, including the right to take money.
8
Q
RENTCHARGES
A
Paid by the Landowner of a Freehold Estate to a Third Party who normally has no other interest in the property.
These have changed since the introduction of the Rentcharges Act 1977, which looks to extinguish all rentcharges by 2037.
A rentcharge can be used to enforce a POSITIVE COVENANT.
9
Q
RIGHT OF ENTRY
A
This could be to a third party to legally take or resume possession of a property, such as if a tenant has breached the terms of a lease.
10
Q
When two Persons contributed to the purchase price but it is registered into the name of One of them.
A
The Other Physical Person Holds Equitable Interest by way of a Resulting Trust.
11
Q
5 Legal Rights
A
MERRP
Mortgages
Easements
Rentcharges
Rights of Entry
Profits a Prendre
12
Q
What are the Equitable Interests?
A
- Restrictive Covenants
- Estate Contracts
13
Q
When Equity steps in?
A
Equity steps in when someone has tried to create a legal intetest in land, but the attempt failed due to some lack of formality.
e.g. an equitable mortgage or equitable easement arise when a legal mortgage or legal easement have failed due to some lack of formality.
14
Q
What are the two systems to determine who owns freeholds title to land?
A
The Registered System
&
The Unregistered System
15
Q
Unregistered System:
what to prove?
A
- Good root title
- Unbroken chain of ownership for a minimum period of 15 years.
16
Q
Documents in Unregistered Title
A
- mortgage deed
- conveyance on sale
- deed of gift
- assent
17
Q
Third Party Rights that may be enforceable against the buyer after they complete the purchase
A
- Legal Interests thet bind all purchases of freehold estate irrespective of notice.
- Beneficial Interests binding on all under notice Except Equity’s Darling.
- Certain Equitable Interests- Entry of Land Charge on the HMLR Land Charges Register (these include equitable easements, restrictive covenants, estate contracts, mantrimonial homes rights and equitable mortgages). Registration as a land charge constitutes actual notice to all persons of the interest or right that is registered.
18
Q
Triggers for 1st Registration
A
- a conveyance on sale of freehold land
- an assent
- a deed of gift
- a grant of first legal mortgage
- a grant of lease for more than 7 years
Once the title is registered the unregistered title ceases to have legal effect.
19
Q
What’s the difference between a proprietary and personal right?
A
Proprietary : enforceable against 3rd parties and can be enforced by an action in rem (use/possession can be recovered) - don’t have to settle for damages
Personal : only binds original parties & damages is only remedy
20
Q
What proprietary rights are there?
A
- Freehold,
- Leasehold,
- Easement,
- Restrictive Covenant,
- Mortgage,
- Estate Contract,
- Beneficial Interest in a trust of land
21
Q
What is an owner’s right to airspace?
A
height restricted to necessary for
- ordinary use and
- enjoyment of the land (lower airspace)
22
Q
What are the rules on lower airspace?
A
If a structure overhangs a property in lower airspace, it trespasses irrespective of causing damage
23
Q
What tests are applied to determine if something is a fixture or fitting?
A
Degree of Annexation
Purpose of Annexation
24
Q
What’s the law on fixtures regarding a transfer of land?
A
A transfer of land automatically includes all fixtures, except those specifically excluded.
25
What is an easement?
A proprietary right to use land which belongs to someone else
Can be a legal (certain term) or equitable (uncertain term) interest
26
What is an estate contract?
A contractual right to a legal estate, whether freehold or leasehold
An equitable interest arises from the contract
27
What happens if the current owner of a freehold estate dies without next of kin and without a will?
Land is regarded as bona vacantia and estate reverts to the Crown.
28
What is freehold reversion?
The residue of the estate where a leasehold is granted.
29
What is a commonhold?
A type of freehold: an alternative to a long lease, with no overall landlord
Freehold older which is a commonhold association.
Introduced by the Commonhold and Leasehold Reform Act 2002, it allows for the freehold ownership of individual units (such as apartments or flats) within a larger development or building, combined with shared ownership and responsibility for common areas like lobbies, gardens, and staircases.
Key aspects of Commonhold ownership include:
Individual Unit Ownership: Each owner holds the freehold title to their specific unit (e.g., an apartment) indefinitely, unlike a leasehold, which is limited by the lease's duration.
Commonhold Association: The communal areas are managed by a "commonhold association," a company made up of the individual unit owners, who share responsibility for the maintenance and management of these areas. Each unit owner is a member of this association.
Shared Responsibilities: Owners pay for the upkeep of common areas through service charges or contributions agreed upon by the association. Decisions about management and repairs are made collectively.
This system aims to give property owners greater control and stability compared to leasehold, where landlords (freeholders) often retain significant influence over property management, ground rents, and lease terms.
30
What are the remedies available for breach of a land/estate contract?
- Damages
- specific performance &
- injunction
(at discretion of court & equitable principles apply)
31
When do we have an equitable interest where a valid/ deed contract is not created?
1. Complies with the formalities.
2. Specific performance is available.
32
What are the requirements for a valid mortgage in UK law?
Valid deed
+
Registered as a charge
33
What are the requirements for a valid mortgage in UK law?
Proper Execution of the Mortgage Deed
The mortgage must be executed by deed, which is a formal, written document. The essential formalities include:
Written Form: The mortgage must be in writing, as required by Section 53(1)(a) of the Law of Property Act 1925.
Signed by the Borrower: The deed must be signed by the borrower, who is transferring a legal interest in the property as security.
Witnessed and Delivered: The signature must be witnessed by an independent party, and the deed must be delivered (typically considered done when the deed is signed and handed over).
5. Compliance with the Law of Property Act 1925
Under the Law of Property Act 1925, a legal mortgage must comply with specific legal provisions, including:
Form of Charge: The mortgage is usually created by way of a legal charge, which gives the lender rights over the property if the borrower defaults.
Registration:
For registered land, the mortgage must be registered at the Land Registry to be legally effective. The lender's charge over the property is entered into the register, which protects the lender’s interest.
For unregistered land, the mortgage must be registered under the Land Charges Act 1972.
6. First Legal Charge
Typically, a valid mortgage grants the lender a first legal charge over the property, meaning that the lender has priority over other creditors in the event of default and repossession.
34
What 2 rights are automatically granted by mortgage to a lender?
1. Right to Possess Property (to ensure it’s vacant for sale)
2. Power to Sell Property
35
In what 2 ways can an equitable mortgage arise?
1. Mortgage of an Equitable Interest: borrower holds equitable interest in land - they are not the legal owner
2. Defective Legal Mortgage: not a valid deed OR not completed by registration; but (for either) complies with estate contract requirements
36
What is ‘Equity of Redemption’?
Borrower has an equitable right to redeem
Equity will look unfavourably & be prepared to declare void any term trying to postpone/prevent redemption
Market value LESS outstanding debt
37
What 3 principles apply to equity of redemption?
1. It supplements legal right to redemption
2. No postpone/prevention of redemption: won’t allow a clause that prevents redemption altogether; an option to purchase may be declared void if granted at same time as mortgage
3. No collateral advantages: solus tie is upheld if ends within mortgage term; other collateral terms struck out if unconscionable
38
What procedure should a bank take to not be liable for undue influence?
1. Write to party granting mortgage NOT for their benefit, saying that they need confirmation from an independent solicitor that transactions been explained to them
2. Ask party to nominate solicitor
3. Provide all info to solicitor
4. Don’t proceed to lend until confirmation received
39
What is the order of priority for equitable mortgages?
Order of **creation**
40
What happens to the order of priority where an equitable mortgage is protected by notice?
* That mortgage will take priority over a subsequent legal mortgage
* Will not affect priority between competing equitable mortgages though - always on date of creation
* Legal mortgage will take priority over equitable mortgage not protected
41
How can priority rules of mortgages be modified?
* By postponement of pre-existing interest
* Lenders agree to alter position/order with agreement registered
42
What remedies are there for a lender?
1. Debt Action
1. Appoint a Receiver
1. Foreclosure
1. Possession
1. Right to Sell
43
What can’t be done WITHOUT a court order for an equitable mortgage?
* Possession
* Right to Sell
44
When does the lender’s right to sell arise?
As soon as one payment becomes due
45
When is a lender’s right to sell exercisable?
When one of the following applies:
- **Notice** requiring payment served & borrower defaults
- Interest unpaid for at least **2 months**
- Some **breach** of another mortgage provision
46
What duties does a lender owe when exercising a right to sell?
(a) **reasonable care** to obtain **proper price** for property
(b) Perfection as to price isn’t necessary
(c) Must get **expert advice** on method of sale, marketing strategy and reserve price
(d) Lender has **unfettered discretion as to when to sell**
47
What is the difference between a legal and equitable easement?
**Legal:**
- granted for equivalent of freehold or leasehold estate.
- Binds all
**Equitable:**
- not granted for a fixed time period.
- Binds *if known*
48
What is a positive and negative easement?
* Positive: use servient land in a particular way
* Negative: prevents servient owner from doing something on their land by giving dominant owner right to receive something
49
What is a positive and negative easement?
Positive: use servient land in a particular way
Negative: prevents servient owner from doing something on their land by giving dominant owner right to receive something
50
What are quasi-easements?
Potential easements - they would become easements if the land was divided e.g. a path
51
Easement or a License?
1. Tests in Re Ellenborough Park
2. Consider disqualifying factors
3. Acquisition - expressed/implied/prescription
52
What are the tests in RE Ellenborough Park for determining if a right is an easement?
* Dominant & servient land (2 identifiable pieces of land, one with benefit and one with burden)
* **Owned by different people**
* proximity.
*Right must apply to land
* Right must Lie in Grant:
- capable grantor & grantee;
- capable of reasonably exact description; &
- judicially recognised
53
For the right to ‘accommodate the dominant tenement’, what must be considered?
Determining whether there is direct beneficial impact on dominant land:
- benefit the land
- Affects nature, quality and use of land
- Right is not expressly personal
- Dominant and servient land are sufficiently proximate (can have a field in middle)
54
What rights have been judicially recognised as easements?
Right of
- way
- drainage
- support
- sport and leisure facilities
- recreational activities
55
Exclusive Possession: can’t deprive servient owner of use of land - consider ouster principle & whether they have ultimate possession and control
Payment: servient owner can’t be required to spend extra money for the right; servient must allow dominant tenement to carry out repairs at own expense
Permission: initial permission allowed but right can’t be exercised with permission everytime
1. **Exclusive Possession: can’t deprive servient owner of use of land** - consider ouster principle & whether they have ultimate possession and control
2. **Payment**: servient owner can’t be required to spend extra money for the right; servient must allow dominant tenement to carry out repairs at own expense
3. **Permission**: initial permission allowed but right can’t be exercised with permission everytime
56
How is a legal easement expressly created?
1. Created by deed
2. For a certain term (freehold or leasehold)
3. Where servient land is registered, easement must be registered
If not, may be an equitable easement if recognised as estate contracts:
- in writing
- contain all terms
- signed by both parties
57
What is necessary for an express equitable easement?
1. Uncertain term
2. In writing
3. Signed by grantor
**No registration needed** (**can be protected by notice**)
58
What are the 4 methods of implied acquisition of easements?
1. Necessity (landlocked land)
2. Common Intention (land used for purpose E needed for purpose)
3. Rule in Wheeldon v Burrows (grants only)
4. S62 LPA 1925 (grants only)
59
What is the Rule in Wheeldon v Burrows and its requirements?
* Only for grants (new owner)
* Quasi easement
* continuous and apparent (degree of permanence & some evidence as to its existence)
* Necessary for reasonable enjoyment of land (lower bar than necessity)
* In use at date of transfer
Where an owner sells/leases land, the new owner/tenant impliedly acquires all rights the original owner exercised i.e. quasi easements
60
What is the effect of S62 LPA 1925? What are its requirements
**Section 62 of the Law of Property Act 1925 (LPA 1925)** is a significant provision in UK land law that deals with the **automatic transfer of rights and benefits when land is sold or conveyed**. Its primary effect is to ensure that when a legal estate is transferred (e.g., in a sale), certain easements, rights, and privileges that benefit the land are automatically passed to the new owner, **even if they are not explicitly mentioned in the conveyance document.**
P & S Platt Ltd v Crouch (2004): This case confirmed that Section 62 can apply to create easements even when there has been no prior diversity of ownership, provided that the rights were continuous and apparent.
61
What is an implied equitable easement?
Where the easement were implied into a contract or an equitable lease
62
What are the requirements for enforcing an express legal easement for reg or in reg land?
* Duration: **certain term or forever**
* Created by** deed**
* **Registered land: must be registered;**
**Unregistered land: bind the world & overriding interest upon 1st registration**
63
What are the requirements for an express/implied equitable easement **on registered land** to be enforced?
* Must be protected by n**otice on Charges Register to bind future servient owners**
* always binds the** grantor**
* always binds someone **gifted or inherited the land.**
64
What are the requirements for an express/implied equitable easement on **unregistered land** to be enforced against new owner of survient land.
* must be protected by **D(iii) Land Charge at Land Charges Register**
* always binds **the grantor**
* always binds **someone gifted or inherited the land.**
65
What remedies are there for enforcing an easement?
Prohibitory injunction
Mandatory injunction (to remove obstruction)
Damages in lieu of injunction or in addition
66
How long for prescription to create a legal easement and what will defeat it?
20 years uninterrupted reasonably regular use (1 yr = interruption)
Without:
- force
- secrecy
- permission
67
What is a legal easement
Reserved for ever or set period of time
If not, it will be an equitable easement
68
If an implied easement is implied into a tenancy document, when will the easement come to an end?
When the lease ends
69
What is a grant?
Person who sells land gives a right over the **retained land**.
70
How can easements be created?
* express creation
* implied creation
* prescription (20 years)
71
What is required for a deed?
clear it’s intended to be a deed
witnessed
signed by grantor witness
delivered (dated)
72
When is an implied legal easement enforceable in registered land?
actual knowledge of new owner, or
obvious, or
exercised in the prior year.
73
hen is an implied legal easement enforceable against the subservient owner for unregistered land?
Binds and becomes overriding interest on first reg. no need for notice or registration and doesn’t trigger registration.
74
What’s an express legal easement?
Expressed in a deed
75
What’s an express equitable easement?
Expressed in writing and signed by grants but falls short of a deed
76
What sort of easement does wheeldon v burrows create?
Only creates grants
Legal into deeds and equitable into contracts.
77
Can s62 and the rule in burrows be used for reservations?
No, only grants
78
What is a mixed covenant?
- It contains both positive and restrictive Elements:
It may be separated into different covenants, if possible.
- An obligation with a condition attached (not do sth without consent) in which case it is viewed as a whole.
79
What process should one follow when determining whether benefit / burden of a freehold covenant has passed to a successor covenantor/covenantee?
- restrictive covenant = equity.
- positive covenant = common law.
80
Requirements for a Deed
(LPA 1989)
1. Clear on the face of it that it is intended to be a deed.
2. Signed and Witnessed.
3. Delivered (Sealed and Dated).
81
What are equity for BURDEN of a restrictive covenant passing?
- Must be restrictive covenant
- Must benefit the dominant tenement:
- Must benefit land, not owner;
- Land must be proximate
—————————————————
- Intention for burden to run (assumed)
—————————————————
- Notice of covenant:
*registered = notice on Charges Register;
*unregistered = D(ii) Land Charge
82
What are the equity rules for BENEFIT of a restrictive covenant passing?
1. Covenant must ‘touch and concern’ the dominant land
2. Benefit must pass by either:
- Annexation (fixed to land express or statutory) assumed
- Assignment (expressly gives benefit to next purchaser)
- Building Scheme
83
What are the equitable remedies for breach of restrictive covenant?
Most common = injunction (prohibitory or mandatory)
Damages but not as of right
Equitable principles apply e.g. delay
84
What is required for a s.84 discharge/modification?
* only applies to restrictive covenants
* apply to Lands chamber
* Grounds:
obsolete, or
hinders reasonable use, or
express or implied agreement, or
dominant will not suffer
85
What triggering events are there?
* Transfer of freehold by sale, gift or court order
* An assent (pass by death)
* Grant of lease of 7 or more years
* Assignment of lease with 7+ years to run
* First legal mortgage with 7+ years to run
* Grant of lease to take place in 3+ months from date of grant
86
What is the exception to the basic rule of priority?
Where a transaction is for valuable consideration (i.e. not gifted or inherited), new owner is only bound by
* properly registered registrable dispositions (legal),
* interests protected by notice (equitable) and/or
* overriding interests (equitable and legal)
Basic rule, therefore, only applies to transactions not for valuable consideration
87
What are 2 methods of protecting equitable interests and their definitions?
1. Notices: entering a notice on Charges Register of burdened land - binds subsequent purchasers
2. Restrictions: short-term entries that direct purchaser to do something specific to properly register purchase; don’t last beyond ownership e.g. short leases and beneficial interest in trust.
88
What is compulsory land registration?
When unregistered land is sold for the first time after 1st December 1990, the unregistered title must be registered
89
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
When are the tenants released from their covenants?
Upon assignment.
BUT the assignor remains liable for any breach before assignment.
| The tenant will not be liable for subsequent tanant's breach of covenant
90
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
91
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
Who is liable in case of a pre-1995 lease which has been assgned?
The ORIGINAL landlord and te ORIGINAL Tenant
UNLESS one of them expressly releases the other.
92
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
What Authorised Guarantee Agreement (AGA)?
Under **the Landlord and Tenant Act 1995**, the landlorg can require the outgoing tenant to enter an **Authorised Guarantee Agreement**, in which the tenant is guarantor for his immediate siccessor in title.
IN COMMERCIAL LEASE
In residential lease, it will be for teh courts to decide if the Landlord imposed the condition lawfully in any particular case.
93
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
What happens when the tenant has given an AGA, but the lease has been assigned many times since then?
The Tenant's liabiity ends after teh second Assignement
e.g.
BOB - LUCIE - LILLY - NICK
Bob;s liability would have ended on the assignment of the lease from Lucie to Lilly.
94
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
What happens when the Tenant creates a lease for LONGER than his own lease?
Will operate as an Assignment of Lease.
95
# CONTINUING LIABILITY FOR COVENANTS - LANDLORD AND TENANT ACT 1995
Is the Subtenant liable to Perform Covenants under the Head-Lease?
Generally no. There is no Privity of Contract or Privity of Estate.
May be possible for the Head Landlord by virture of the fact that the user covenant is **a restrictive** **covenant**.
BUT the Tenant will be liable for anyone occupying the Premises (So they will incorporate same covenants in the sublease.
96
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Does the Tenant have the right to assign the lease or grant sub-leases?
Yes.
UNLESS Prohibited by the Lease.
97
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Restrictions on Tenant's Power to sublet or assign or both.
- **Absolute Covenant**: total bar to assignment.
- **Qualified Covenant**: bars from assignment unless the landlord gives *consent* OR certain conditions are met or both.*
| ***The Consent may not be unreasonably withheld.**
98
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Whean can the Landlord withhold consent in case of a Qalified covenant?
1. Bank Reference for the Incoming TEnant Not provided.
2. Proposed Use = Breach of the Specified Use of Covenant.
3. The ALndlord thisnks that teh Incoming Tenant will not be able to pay the rent.
99
# ASSIGNMENT OF LEASES AND SUBLETTINGS
When should the Landlord reply to the Tenant's request for assigment or subletting?
Within a reasonable time.
100
# ASSIGNMENT OF LEASES AND SUBLETTINGS
What is the formality for **assignement**?
**DEED.**
Even if the legal lease was made orally.
101
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Is there Privity of Contact Between the Landlord and the Incoming Tenant?
No.
**Privity of Estate.**
102
# ASSIGNMENT OF LEASES AND SUBLETTINGS
What can the Tenant do when the Landlord refuses to consent?
Seek a Declaration of teh Court that the conduct of the landlord is underasonable.
If the Court disagrees with the tenant, the tenant will be in breach of covenant.
103
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Effect of Assignment when the Landlord refuses to consent.
* Effective between assignor and assignee,
* BUT there will be a breach of covenant.
104
# ASSIGNMENT OF LEASES AND SUBLETTINGS
Assignment of the Head Lease
The Sub Lease remains valid.
105
Effect of a termination of a Lease on a Sublease
The Sub- Lease will end as well.
Exept Merger or Surreder -
The sublease will contnue.
106
# TERMINATION OF LEASES
TERMINATION OF LEASE
1. Expiry of Lease
2. Termination by Notice (Either Landlord or Tenant - If there are joint landlords or tenants/ anyjoimt landlord may serve a notice to quit).
3. Surrender and Merger (By Deed)
(Tenant annot be their own landlord).
