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FLK2 > Land law > Flashcards

Land law Flashcards

1
Q

how is a land deed validly executed?

A

signed by the grantor in the presence of a witness who also signs.

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2
Q

what is the difference in enforcement of a proprietary right and a personal right?

A

proprietary right can be enforced against a third party whereas personal rights only bind the original parties to the right

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3
Q

what is an incumbrance?

A

an interest in land

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4
Q

what are 3 legal interests (that you encounter on the course)?

A

mortgages
easements granted for term equivalent to freehold or leasehold
rights of entry

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5
Q

what are 3 equitable interests (that you encounter on the course)?

A
  • freehold covenants
  • estate contacts
  • interest in trust of land
    -easements granted for uncertain term
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6
Q

what formalities are needed (there are 3) for a valid land contract?

A

must be in writing, contain all expressly agreed terms and be signed by both parties to be legally binding

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7
Q

how is a deed completed - what are the requirements of a valid deed?

A
  • deed must be clear on the face of the doc that it is intended to be a deed
  • deed must be validly executed
  • deed must be delivered
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8
Q

how is a valid express trust created for land?

A

must be evidenced in writing and signed by the declarant

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9
Q

what are circumstances which trigger compulsory registration?

A
  • transfer of freehold estate by sale, gift or court order
  • grant of lease / assignment for term of more than 7 years
  • first legal mortgage of freehold
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10
Q

what is the mirror principle in land law?

A

register should reflect all matters that the priority has the benefit of and all the matters that the property is subject to

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11
Q

what is the curtain principle in land law?

A

register records the ownership of the legal estate in the property, the legal title

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12
Q

what is absolute title (class of title)?

A

best form of ownership means land is only bound by interests that are registered on the title or overriding interests

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13
Q

what is qualified interest (class of title)?

A

title has some defects which it will specify on the register

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14
Q

what is good leasehold title (class of title)?

A

granted when land registry is satisfied as to the title of the leasehold only and not the freehold.

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15
Q

what is possessory title (class of title)?

A

usually given where there is a claim under adverse possession or squatters rights

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16
Q

what are the formalities of a legal mortgage?

A

deed and registration

(remember a deed: must be intended to be a deed on the face of it, be validly executed, delivered)

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17
Q

when are the 2 common scenarios that create an equitable mortgage?

A

1) mortgage of an equitable interest; and
2) defective legal mortgage

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18
Q

what are the requirements to make a valid equitable mortgage?

A

must be in writing and signed by the grantor

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19
Q

when does a lender’s power of sale become exercisable?

A

after the borrower has been in default for at least 2 months after it has become due

(power of sale is a proprietary right)

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20
Q

if a party wishes to allege they have been a victim of undue influence how do they prove this? (relevant for mortgages)

A

there is a relationship of trust and confidence; and
transaction which requires explanation

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21
Q

what are the Etridge guidelines for when a bank is put on inquiry/notice of undue influence? (what 3 things must it do)

A

1) write to spouse who is not granting mortgage not for their benefit and explain that it needs confirmation from an independent solicitor that they have explained the transaction to them
2) ask party to nominate independent solicitor, provide all info to that solicitor
3) it must not proceed to lend until confirmation is received from independent solicitor that transaction is fully explained

22
Q

how does priority occur on registered charges? (which has priority over another)

A

priority between registered charges depends upon order in which they were entered on the register

23
Q

how is priority conferred between equitable mortgages?

A

equitable mortgages rank in order of creation

24
Q

what are the 5 courses of action that a legal lender can do?

A

1) debt action
2) possession
3) sale
4) receiver
5) foreclosure

25
Q

what is an estate contract?

A

This is the effect of a binding land contract which passes an equitable interest in the land to the buyer which is called an estate contract

(Proprietary effect of the contract)

26
Q

what is an option agreement?

A

This is an estate contract that gives another party a right, during the option period, to serve notice that they wish to buy the land.

(If notice is served during the option period, then the seller must sell the land to the buyer. However, buyer is not obliged to exercise the option)

27
Q

what are the 3 remedies available for breach of a land contract?

A
  • damages
  • specific performance (court order compelling defaulting party to carry out positive contractual obligations)
  • injunction (prohibitory injunction = restraining somebody from doing something)
    Specific performance and injunctions are equitable meaning they are down to discretion of the court
28
Q

what is the insurance principle?

A

The accuracy of the register is guaranteed by the state.
If there is an error with the register, it will be corrected and anyone who has suffered any loss will be compensated.

29
Q

If a person finds gold or silver under their land - does this belong to them?

A

No this is an exception to the rule as a landowner is not entitled to all minerals under the land and any mines of gold or silver belong to the crown

30
Q

what is an easement?

A

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

31
Q

what is the dominant tenement?

A

person who receives the benefit of the easement is granted and their land, which is benefitted by the easement

32
Q

what is the servient tenement?

A

person who grants the easement land is the grantor and their land, which is burdened by the easement

33
Q

what is the time frame for when an easement arises by prescription (long use)?

A

where it has been exercised for at least 20 years uninterrupted enjoyment (this creates a legal lease)
must have been used without force, without secrecy and without permission

34
Q

what are the only two modes of implied acquisition of an easement that work for reservation situations?

A

necessity
common intention

35
Q

if an easement is implied intro a transfer deed of a freehold estate - what is the status of the easement?

A

it is a implied legal easement because its status comes from the legal status of the document that it is implied into

36
Q

what are the 4 requirements in Re Ellenborough Park for easements?

A

1) there is a dominant and servient tenement
2) the right accommodates the dominant tenement
3) there is diversity of ownership
4) right is capable of lying in grant as it is clearly defined (must lie in grant)

37
Q

what is a grant of easement?

A

when landowner sells or leases part of their land and gives the buyer/tenant an easement over the land which they have retained - give the buyer an easement

38
Q

what is a reservation of easement?

A

exists where landowner sells or leases part of their land to buyer/tenant and retains right over the land sold or leased
- keeps an easement for themselves

39
Q

if a lease is acquired via prescription - is it legal or equitable easement?

A

it is a legal easement

40
Q

what are the 3 disqualifying factors that stop a right being an easement?

A

1) exercise of right must not amount to exclusive possession of servient tenement
2) exercise of right by dominant owner must not involve additional, unavoidable expenditure by servient owner
3) exercise of right must not depend on permission

41
Q

if an express legal easement is not registered is it enforceable against a new owner of the registered land?

A

no - if it is not registered, it cannot bind the buyer as the purchaser of the registered legal estate.

42
Q

when will an implied legal easement be binding as an overriding interest?

A

if it has been exercised within the last year - therefore, easement qualifies as overriding interest which binds the new owner

43
Q

what are the 3 formalities needed for an express legal easement? (and 4th requirement if the servient land is registered)

A

1) must be clear it is intended to be a deed
2) signed by grantor and witnessed
3) delivered
(also needs to be registered)

44
Q

what are the 2 formalities needed for an express equitable easement?

A

1) must be made in writing
2) must be signed by the grantor

45
Q

what are the 4 different ways that an easement can be implied via acquisition?

A

1) necessity
2) common intention of the parties
3) rule in Wheeldon v Burrows
4) LPA 1925 s62

46
Q

how is an implied legal easement created?

A

implied into a transfer deed or a legal lease as the easement takes the status from the status of the document it is implied into

47
Q

how is an implied equitable easement created?

A

if easement is implied into a contract or an equitable lease it is an implied equitable easement

48
Q

how is an easement created via implied acquisition by common intention?

A

it is implied to give effect of the common intention of the parties - there must be a specific purpose eg, parties must intend for the property to be used in some definite and particular manner (general intention is not sufficient)

1) dominant land is sold or leased for specific purpose
2) purpose is known by both parties
3) easement claimed is essential to achieve common purpose

49
Q

what are the 5 requirements for an easement to be implied via the rule in Wheeldon v Burrows?

A

1) only applies where right being claimed would have been a grant to C
2) right must have been enjoyed as quasi-easement by seller or landlord before land divided
3) must have been ‘continuous and apparent’
4) must be necessary for reasonable enjoyment of the dominant land
5) must be in use by the common owner at date of transfer or lease of dominant land

50
Q

what does implied easement via s62 LPA do?

A

it transfers the benefit of an easement to the new owner when the dominant land is sold.

also has an upgrade method (an informal permission is upgraded to a full easement on the grant of a new conveuance - which is a legal lease or transfer deed)

51
Q

for the upgrade method to work for implied easement via s62 LPA what are the 3 conditions that need to be met?

A

(1) land has been divided by a lease or transfer deed
(2) an informal permission arises
(3) there is a new lease or transfer deed (where informal permission is upgraded to a lease on the grant of the new lease or transfer deed)

FLK2 (6 decks)

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