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.
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
3
Q
what is an incumbrance?
A
an interest in land
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
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
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
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
8
Q
how is a valid express trust created for land?
A
must be evidenced in writing and signed by the declarant
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
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
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
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
13
Q
what is qualified interest (class of title)?
A
title has some defects which it will specify on the register
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.
15
Q
what is possessory title (class of title)?
A
usually given where there is a claim under adverse possession or squatters rights
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)
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
18
Q
what are the requirements to make a valid equitable mortgage?
A
must be in writing and signed by the grantor
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)
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
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
what is an estate contract?
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
what is an option agreement?
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
what are the 3 remedies available for breach of a land contract?
- 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
what is the insurance principle?
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
If a person finds gold or silver under their land - does this belong to them?
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
what is an easement?
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
what is the dominant tenement?
person who receives the benefit of the easement is granted and their land, which is benefitted by the easement
32
what is the servient tenement?
person who grants the easement land is the grantor and their land, which is burdened by the easement
33
what is the time frame for when an easement arises by prescription (long use)?
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
what are the only two modes of implied acquisition of an easement that work for reservation situations?
necessity
common intention
35
if an easement is implied intro a transfer deed of a freehold estate - what is the status of the easement?
it is a implied legal easement because its status comes from the legal status of the document that it is implied into
36
what are the 4 requirements in Re Ellenborough Park for easements?
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
what is a grant of easement?
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
what is a reservation of easement?
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
if a lease is acquired via prescription - is it legal or equitable easement?
it is a legal easement
40
what are the 3 disqualifying factors that stop a right being an easement?
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
if an express legal easement is not registered is it enforceable against a new owner of the registered land?
no - if it is not registered, it cannot bind the buyer as the purchaser of the registered legal estate.
42
when will an implied legal easement be binding as an overriding interest?
if it has been exercised within the last year - therefore, easement qualifies as overriding interest which binds the new owner
43
what are the 3 formalities needed for an express legal easement? (and 4th requirement if the servient land is registered)
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
what are the 2 formalities needed for an express equitable easement?
1) must be made in writing
2) must be signed by the grantor
45
what are the 4 different ways that an easement can be implied via acquisition?
1) necessity
2) common intention of the parties
3) rule in Wheeldon v Burrows
4) LPA 1925 s62
46
how is an implied legal easement created?
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
how is an implied equitable easement created?
if easement is implied into a contract or an equitable lease it is an implied equitable easement
48
how is an easement created via implied acquisition by common intention?
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
what are the 5 requirements for an easement to be implied via the rule in Wheeldon v Burrows?
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
what does implied easement via s62 LPA do?
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
for the upgrade method to work for implied easement via s62 LPA what are the 3 conditions that need to be met?
(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)
52
what type of covenant runs with the land?
restrictive covenants (as they are an equitable interest in the land and can be enforced against successors in title if they are properly created and registered)
53
what does LPA s78 provide for for covenants that are automatically annexed to dominant land = what does this mean?
covenant automatically annexed to the dominant land because it provides that a covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and its successors in title unless expressly excluded. [annexation means the benefit of the covenant automatically passes to the new owner without needing specific mention to the transfer]
54
for a positive covenant when the land is sold - who has the burden of the covenant?
the original covenantor remains liable for the covenant and can be sued. therefore, you get indemnity insurance so you can seek recovery from new owner.
55
what is the doctrine of mutual benefit and burden (freehold covenants)?
if you enjoy the benefit of the land therefore, must accept the linked burden of contributing/paying (whatever the covenant says).
56
what is the rule on when covenants form part of a building scheme = are they enforceable against each other?
building scheme creates a framework where all plot owners can enforce covenants against each other, providing conditions for a building scheme are met. allows mutual enforceability of restrictive covenants as if they were local laws.
57
what is a positive covenant?
something that cannot be complied with without putting your hand in your pocket. spending time, money or energy
58
what is a restrictive covenant?
can be complied with by inaction
59
what are the 4 requirements in Tulk v Moxhay? (passing restrictive covenants)
1) the covenant must be restrictive
2) covenant must accommodate the dominant tenement
3) must be intention for burden of covenant to run
4) must be notice of covenant
60
how must a covenant be protected for registered land (element 4: tulk v moxhay - must be notice)?
covenant must be protected for registered land by the entry of a notice in the charges register of the servient title (LRA 2002, s32)
61
how must a covenant be protected for unregistered land (element 4: tulk v moxhay - must be notice)?
covenant must be protected by a class D(II) Land Charge
62
how is a covenant expressly annexed?
the words of the covenant are sufficient to make the benefit part and parcel of the dominant land from the outset
63
if there is a registered legal interest in land (eg, express easement, mortgage, right of entry) does a purchaser of value take these when they buy the land?
yes, they take the land burdened which takes the land subject to them
64
do purchaser for value take land subject to equitable interests?
yes they do, they take land subject to all equitable interests protected by entry of a notice on the charges register [eg, restrictive covenant, estate contract and equitable easement]
65
what is overreaching?
concept which applies only to beneficial interests behind a trust. operates to move the beneficiaries' equitable interest from land into money.
overreaching ensures buyer/lender takes land free of beneficial interests; it protects beneficiaries in that they will have an interest in the money.
66
how does overreaching occur?
to overreach, the money must be paid to at least 2 trustees / legal owners. money can be purchase money paid by a buyer, or mortgage money lent by a lender.
67
what type of land does overreaching apply to (unregistered or registered)?
it applies to both registered and unregistered land
68
what are overriding interests?
they are interests which will be binding even though they do not appear on the register of title of the burdened land
69
what are the 3 different categories of overriding interests in LRA 2002, Schedule 3?
1) legal leases for term of 7+ years
2) equitable interests held by people in actual occupation of the land
3) implied legal easement
70
what is equity's darling?
a purchaser of land who has acted in good faith and doesnt have notice of the interest.
71
what interests are not subject being put on the land charge and therefore, have the doctrine of notice?
equitable easements and restrictive covenants created before 1926 and equitable interests under a trust that haven't been overreached
72
what is the consequence of failing to register land after 2 months?
it reverts to the seller
73
if you fail to register a land charge correctly - who is it binding on and who is it not binding on?
it is binding on someone who is gifted or inherited the land
not binding on a purchaser of the land
74
what must an equitable easement granted post 1926 be protected by?
be protected by an entry of a D(iii) land charge to be enforceable against purchaser of the burdened land. would be entered against the name of the woman
75
if a purchaser conducts reasonable searches and didn't have actual, constructive or imputed notice of an interest = is the interest enforceable against the purchaser?
no because they are equity's darling as an equitable interest in unregistered land is not enforceable against a bona fide purchaser for value without notice
76
what happens if an equitable interest created post 1926 over unregistered land is not protected by way of land charge?
failure to register such an interest will make it void against a subsequent purchaser for value
77
what is actual notice?
purchaser actually knows of the equitable interest
78
what is imputed notice?
notice received by the buyer's agent eg, solicitor on land purchase
where agent has notice, whether actual or constructive of an interest that knowledge is imputed to the buyer
79
what is constructive notice?
occurs when purchaser should have made an enquiry 'reasonable' but has failed to make such enquiry - they are then fixed with constructive notice due to their failure
80
can a donee (someone who is gifted or inherits estate) be equity's darling even if they dont have notice?
no - they can never be equity's darling even if they dont have notice as it only applies to a purchaser
81
how is a trust of land created?
must be evidenced in writing and signed by the declarants (people granting it)
82
what are the 4 unities of title for co-ownership? [joint tenancy]
1) unity of possession = no one can be excluded from any part of the land
2) unity of title = acquire title from same doc
3) unity of interest = must be of same nature and duration
4) unity of time = interest must vest at the same time
83
what is the only unity that is required for tenants in common?
unity of possession
(can have the others but not necessary)
84
what is severance?
it is the process where joint tenants can convert an interest into a separate share held as tenants in common
85
can legal joint tenancy be severed?
no it cannot - the legal owners will remain as joint tenants
86
can an equitable joint tenancy be severed and if so - how?
yes it can - it can be severed by either notice, in writing or certain kinds of behaviour
87
can you severe a joint tenancy in a will?
no it has to be severed during the severing joint tenant's lifetime
88
as severance can occur by writing - does it need to be signed?
no it doesnt need to be signed but must demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately
89
who must severance be served on?
all equitable JOINT TENANTS not tenants in common
90
how can severance occur by 'other acts or things'?
1) unilateral act = by joint tenant operating on its own shares
2) mutual agreement = of joint tenants
3) any course of dealing = which indicates that the interests were mutually treated as constituting a tenancy in common (mutual conduct)
91
how can a joint tenancy be severed via a unilateral act? [what are the 3 types of alienation]
total alienation = eg, selling, disposing of their interest
partial alienation = eg, severing owner disposes temporarily of interest by way of mortgage or lease
involuntary alienation = declared bankrupt
92
how do you sever a joint tenancy via mutual agreement?
occurs when all equitable joint tenants agree that the person's interest is severed - doesnt need to be a contract but must amount to an agreement that one person's interest is separate or severed
93
how do you sever a joint tenancy via mutual conduct?
occurs when the parties embark on a course of dealings which demonstrate they are treating their shares in property as separate. may cover ongoing negotiations although this is unclear as that would suggest no mutuality
94
who can make an application under s14 TOLATA to the court on the resolution of disputes involving co-owned land?
anyone with an interest in the land can apply to the court
95
what can the court order a person to do when dealing with resolution for co-owned land s14 TOLATA?
can order trustees to do an act but cannot order beneficiaries to buy each other out
96
what must the court have regard to when deciding a resolution for co-owned land s14 TOLATA?
criteria is evenly weighed: purpose for which land was brought, interest of minors, interest of secured creditors and circumstances and wishes of beneficiaries of full age
97
in practice what do the courts give more weight to when deciding resolutions for co-owned land s14 TOLATA?
interest of creditors (especially when debt is spiralling out of control) or sufficient equity in property to purchase an alternative
98
when is a notice to sever joint tenancy deemed served?
deemed served if it is delivered to the recipient's last known place of abode or business, regardless of whether it is read
99
what is security of tenure?
the right for the tenant to remain after the formal arrangement ends and request a new lease
100
