Land law Flashcards
how is a land deed validly executed?
signed by the grantor in the presence of a witness who also signs.
what is the difference in enforcement of a proprietary right and a personal right?
proprietary right can be enforced against a third party whereas personal rights only bind the original parties to the right
what is an incumbrance?
an interest in land
what are 3 legal interests (that you encounter on the course)?
mortgages
easements granted for term equivalent to freehold or leasehold
rights of entry
what are 3 equitable interests (that you encounter on the course)?
- freehold covenants
- estate contacts
- interest in trust of land
-easements granted for uncertain term
what formalities are needed (there are 3) for a valid land contract?
must be in writing, contain all expressly agreed terms and be signed by both parties to be legally binding
how is a deed completed - what are the requirements of a valid deed?
- 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
how is a valid express trust created for land?
must be evidenced in writing and signed by the declarant
what are circumstances which trigger compulsory registration?
- 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
what is the mirror principle in land law?
register should reflect all matters that the priority has the benefit of and all the matters that the property is subject to
what is the curtain principle in land law?
register records the ownership of the legal estate in the property, the legal title
what is absolute title (class of title)?
best form of ownership means land is only bound by interests that are registered on the title or overriding interests
what is qualified interest (class of title)?
title has some defects which it will specify on the register
what is good leasehold title (class of title)?
granted when land registry is satisfied as to the title of the leasehold only and not the freehold.
what is possessory title (class of title)?
usually given where there is a claim under adverse possession or squatters rights
what are the formalities of a legal mortgage?
deed and registration
(remember a deed: must be intended to be a deed on the face of it, be validly executed, delivered)
when are the 2 common scenarios that create an equitable mortgage?
1) mortgage of an equitable interest; and
2) defective legal mortgage
what are the requirements to make a valid equitable mortgage?
must be in writing and signed by the grantor
when does a lender’s power of sale become exercisable?
after the borrower has been in default for at least 2 months after it has become due
(power of sale is a proprietary right)
if a party wishes to allege they have been a victim of undue influence how do they prove this? (relevant for mortgages)
there is a relationship of trust and confidence; and
transaction which requires explanation
what are the Etridge guidelines for when a bank is put on inquiry/notice of undue influence? (what 3 things must it do)
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
how does priority occur on registered charges? (which has priority over another)
priority between registered charges depends upon order in which they were entered on the register
how is priority conferred between equitable mortgages?
equitable mortgages rank in order of creation
what are the 5 courses of action that a legal lender can do?
1) debt action
2) possession
3) sale
4) receiver
5) foreclosure