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FLK2 > Land Law > Flashcards

Land Law Flashcards

1
Q

What is the degree of annexation test?

A

The test that is used to determine whether an item is a fixture of a chattel.

The more firmly the object is fixed to the land or building, the more likely it is to be classified as a fixture.

If the object rests on the land by its own weight, it is generally considered to
be a chattel.

The purpose of the annexation is more important than the degree of annexation. For example, what the annexation due to use or enjoyment. This test raises a presumption that the thing in question is NOT a fixture.

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2
Q

What constitutes lower airspace?

A

Landowner owns airspace necessary for reasonable ordinary use and enjoyment. Trespass occurs if a structure intrudes here, irrespective of whether there is damage.

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3
Q

What constitutes upper airspace?

A

Upper airspace extends to whatever is necessary for ordinary use and enjoyment of the land. Above that height, the owner has no greater rights than any other member of the public.

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4
Q

Corporeal Hereditaments

A

Corporeal hereditaments are physical things attached to the land –
called ‘fixtures’ in practice.

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5
Q

Incorporeal Heriditaments

A

Incorporeal hereditaments are the benefit of any proprietary
rights that the land has but which have no physical substance. For example, if a piece of land
has the benefit of an easement to park on the adjoining neighbour’s land, this proprietary
right is part of the land, and the benefit of it therefore passes with the land when it is sold.

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6
Q

What is the mirror principle in registration?

A

Mirror Principle

  • The register reflects all matters benefiting and burdening the property.
  • Overriding interests are not shown on the register but still bind new owners.
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7
Q

What is the curtain principle in registration?

A

Curtain Principle

  • That only legal ownership is shown on the register.
  • Beneficial ownership remains hidden behind the curtain.
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8
Q

What is the insurance principle in registration?

A

Insurance Principle

  • That the register accuracy is state-guaranteed.
  • Errors on the register are corrected, and losses are compensated (state indemnity, LRA 2002, s 23).
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9
Q

What is the Official Copy comprised of?

A

The Land Registry registered title documents are known as the official copies and are divided into 1) the property register 2) the proprietorship register 3) the charges register.

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10
Q

When does the buyer of registered land become the legal owner?

A

The buyer of a freehold estate is not recognised as the new legal owner until registration has taken place.

This is the effect of s 27 LRA 2002. It also has the effect that the tenant of a lease over seven years is not recognised as having a legal lease until the lease is registered. Equally, a legal mortgage is not created until it has been registered at the land registry.

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11
Q

What is the difference between a proprietary right and a personal right?

A

Proprietary rights give right to an action for repossession of the property. It is also capable of being enforced against a third party. There is a fixed list of proprietary rights!
* The freehold estate
* The leasehold estate
* An easement
* A mortgage
* A restrictive covenant
* An estate contract
For a right to be proprietary, it may need to satisfy certain substantive characteristics.

Personal rights give right to an action for damages only. (It is not capable of being enforced against a third party).

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12
Q

What is an estate in land?

A

A proprietary right of possession is called an estate in land.

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13
Q

What is the highest possible estate in land?

A

Fee Simple Absolute (freehold estate).

(The leasehold equivalent is ‘term of years absolute’).

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14
Q

What is the difference between a freehold estate and a freehold reversion?

A

The freehold estate refers to the outright ownership of land for an unlimited duration.

The freehold reversion is the interest retained by a freeholder when granting a lease.

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15
Q

What is an easement?

A

An easement is a proprietary right to use land which belongs to somebody else.
The use is more limited than an exclusive right to occupy or use.

An easement must be granted for a term equivalent to one of the legal estates (ie forever, like the freehold, or for a certain period, like a lease) to be a legal easement: LPA 1925, s 1(2)(a).

If the easement is granted for an uncertain duration, it is only capable of being an equitable
easement.

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16
Q

What does a right of entry give rise to?

A

A right of entry is a legal interest in the land.

It can be either:
1) A right for a landlord to re-enter leased premises and end the leasehold estate in the event of tenant default

2) It can be a rent charge - this is an owners right to hold the land if money owed is not paid (this is very uncommon).

Remember - a right of entry in a lease is also known as a forfeiture clause.

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17
Q

What is a restrictive covenant?

A

A promise relation to the land that is negative in nature, prevents a landowner from doing something on their land.

18
Q

What are legal interests in land vs equitable interests in land?

A

LEGAL Interests
- Mortgages
- Easements granted for a term equivalent to a freehold or leasehold estate.
- Rights of entry

EQUITABLE Interests
- Freehold Covenants
- Estate Contracts
- Interests in a trust of land
- Easements granted for an uncertain term

19
Q

What is the distinction between legal and equitable interests?

A

Remedy & Enforcement

1) Legal Interests offer wide range of remedies, including damages and equitable remedies.
By contrast, equitable interests only offer equitable remedies

2) Legal interests automatically binds new owners of land.
Equitable Interests bind only those with knowledge of the interest unless the equitable interest is either overriding or registered.

Legal interests usually take precedence over equitable interests if both exist on the same land.

20
Q

What are the three essential stages for transfer of a freehold?

A

1) Exchange of Contracts
2) Completion of the Deed
3) Registration

21
Q

What are the requirements for exchange of contracts of land which must comply with S 2 LP(MP)A 1989 ?

A

The contract must be in writing.

It must contain all the expressly agreed terms.

It must be signed by both parties.

22
Q

What are the requirements for completion of the deed for sale of land which must comply with s 1 LP(MP)A 1989?

A

A deed must be clear on the face of the document that it is intended to be a deed.

The deed must be validly executed.

The deed must be delivered.

23
Q

What is a conveyance?

A

A deed for the sale of unregistered land.

24
Q

What is a transfer (TR1)

A

A deed for the sale of registered land.
Legal estates must be transferred by deed (s 52(1) LPA 1925

25
Q

When does LEGAL title pass after the sale of land?

A

For registered land, legal title transfers only after registration. (The buyer does this by sending the completed deed to the land registry).

For unregistered land, legal title passes at completion of the deed. (The new owner must then register the land with the Land Registry for the first time within TWO MONTHS of completion, otherwise the legal title will revert back to the seller.

26
Q

What does valid execution under s 1 LP(MP)A 1989 involve?

A

For a deed to validly executed, it must be signed by the seller in the presence of a witness.

The witness needs to sign the deed to confirm that they have in fact witnessed the signing off the deed. This is attesting the signature.

If the seller is a registered company, it can execute the deed in one of several ways….
- Two directors signing in the presence of a witness.
- One director and the company secretary signing in the presence of a witness.
- Affixing the common seal of the company.

27
Q

What is the difference between conveyancing and a conveyance

A

Conveyancing is the process of transferring ownership of land or property.

A conveyance is a legal document that formally transfers ownership.

28
Q

How to validly vary a land contract?

A

All material variations to land contracts must comply with s 2 LP(MP)A 1989.

  • It must be in writing
  • It must contain all expressly agreed terms
  • It must be signed by both parties
29
Q

What is a right of pre-emption?

A

A right of pre-emption is a type of estate contract that gives another party a right of first refusal in the event the land owner decides to sell their land.

30
Q

What happens where a legal interest fails (because of incorrect formalities or whatever)

A

In this situation, the courts will recognise an equitable interest in the land providing there is:
- a document which complies with s 2 LP(MP)A 1989
- and the remedy of specific performance is available (and the claimant has clean hands)

31
Q

When does compulsory registration occur?

A

Unregistered land: If the land has never been registered, certain events (called triggering events) require it to be registered for the first time.

Registered land: If the land is already registered, the same events require the Land Registry to update the records.

32
Q

What are key triggering events for compulsory registration?

A

These are the circumstances when registration becomes mandatory:

Transfer of freehold estate:
This happens when the freehold is sold, given as a gift, or transferred by a court order.

Grant of a long lease:
A lease is granted for more than seven years.

Assignment of an existing long lease:
This applies to unregistered land where a lease with more than seven years remaining is transferred to a new owner.

Transfer on death (assent):
When land is inherited and transferred by a personal representative through:
- An assent (document confirming the transfer after death), or
- A vesting assent/deed for a freehold or a long lease (over seven years).

Future leases:
If a lease is granted to start more than three months after the grant date.

First legal mortgage:
When a property is mortgaged for the first time, either:
- A freehold property, or
- A long leasehold (over seven years).

33
Q

If mortgages can be both legal and equitable interests, how do you determine the status of a particular agreement?

A

If the mortgage is being granted over a legal estate by the legal owner, the mortgage is capable of being an legal interest.
Then ask: has it been granted by deed and properly registered?

If the mortgagor (the borrower) only holds an equitable interest in the land OR the mortgage is a defective legal mortgage (ie, it does not comply with the requirements of a deed or hasn’t been registered) then it’s likely an equitable mortgage.

34
Q

What are the formalities for creation of a legal mortgage?

A

Formalities for Legal Mortgage:
Must be created by deed s 1 LP(MP)A 1989.
Must be clearly on the face of the document intended to be a deed.
Must be validly executed
Must be delivered.

Registration of a legal mortgage requires the following:
- For registered land, the mortgage must be registered at the Land Registry (failure to register the mortgage will mean it won’t be a valid legal mortgage but it may be a defective equitable mortgage).

35
Q

What are the two types of equitable mortgage?

A

1) Mortgage of an equitable interest: (can be created informally, in accordance with s 53(1)(c) LP(MP)A 1989. It need only be in writing and signed by the grant to be valid).

2) Defective legal mortgage: (a failed legal mortgage will be effective as an equitable mortgage where it complies with s 2 LP(MP)A 1989. It needs to be in writing, contain all agreed terms and signed by both the mortgagor and mortgagee).

36
Q

Discharge of Mortgages

A

A mortgage is fully discharged once it has been repaid in full. All references to it must be removed from the Land Registry.

DS1 Form : Used to discharge mortgage over the entire property.

DS2 Form : Releases part of the land from the mortgage

37
Q

What should lender’s do when they suspect undue influence?

A

Lenders face a risk where undue influence is established, so they are put on inquiry of undue influence if:
A non-commercial relationship exists.

The transaction benefits only one party.

Steps for Lenders:
- Write to the party granting security, explaining that they must seek independent legal advice.
- Ensure the solicitor has full transaction details.
- Wait for confirmation from their solicitor before proceeding.

38
Q

What is a Solus Tie?

A

In mortgage agreements, where the lender makes it a condition of the mortgage that the borrower buys all its supplies from the lender. This is generally in commercial agreements with breweries and oil companies and will be upheld where the commercial transaction ends within the mortgage term.

39
Q

What is the order of priority for registered legal mortgages based on?

A

Priority between registered charges depends upon the order in which they are
registered. (Irrespective of the order in which they were signed).

40
Q
A

FLK2 (4 decks)

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