Land Law Flashcards
What is Land?
the term ‘land’ includes corporeal hereditaments and incorporeal hereditaments
Examples of Corporeal hereditaments?
Surface of land
Buildings and parts of buildings
mines and minerals
trees and plants
the air above the surface of the land
the ground below the surface of the land
fixtures
Examples of incorporeal hereditaments
Rights
easements
rents
limitation of land
The owner of land does no own the wild animals on said land but may hunt them. The owner may draw from a source of water on their land if they have the appropriate license
Difference between fixtures and fittings?
fixtures are regarded as being part of the land and therefore pass on sale. Whereas, fittings don’t and will not pass on sale unless they are specifically listed in the sale.
testing between fixtures and fittings?
Degree of Annexation: Greater the attachment of something to the land, the more likely it is considered to be a fixture
Purpose of Annexation: If an item was brought onto the land to make a permanent improvement, this will be considered a fixture (even if it is easily removed)
The purpose of annexation will always outweigh the degree of annexation
Ownership of Land in England and Wales
Land cannot be “owned” in the traditional sense.
The Crown owns all land; individuals hold “estates” in land derived from the Crown
Freehold and Leasehold Estates definition
Freehold Estate: Known as “fee simple absolute in possession,” lasts indefinitely.
Leasehold Estate: Term of years absolute, with a fixed duration (e.g., 6 months, 99 years).
Commonhold Ownership
Explanation
Used for flats or commercial leases; ensures compliance with obligations like maintenance fees, it requires:
- Freehold registered as commonhold land.
- Commonhold Community Statement defining rights/duties.
- Memorandum specifying land-related functions of the Association.
Five categories of legal interests?
Mortgages: Loans secured against property.
Easements: Rights benefiting land (e.g., right of way).
Rentcharges: Periodic payments to former landowners.
Profits à Prendre: Rights to take resources (e.g., timber).
Rights of Entry: Permission to access land under specific conditions.
Equitable Interests
Explanation:
Arise when deed formalities are not met but equitable interest may still arise such as:
Equitable mortgages (created without valid deeds).
Restrictive covenants binding successors.
Estate contracts granting rights (e.g., options to purchase land).
Formalities for Legal Interests
Written and marked as a deed.
Signed by the grantor with a witness.
Delivered to indicate intention.
Must be written, include all terms, and be signed by all parties.
Concurrent Interests in Land
Legal and equitable interests can coexist such as:
Legal Interest: Right of way by deed.
Equitable Interest: Restrictive covenant limiting property development.
Legal Estate: Ownership by lease or freehold.
Main documents in unregistered land?
A conveyance of sale
A deed of Gift
A Mortgage Deed
An Assent
What is the Epitome of Title for unregistered land?
As the original deeds will not be sent to the buyer, the seller will provide a chronological list of documents with a copy of each documents attached to the epitome
Legal and equitable interests on unregistered land?
All legal interests will pass on the sale of the land regardless of if the buyer had notice . Equitable interests will need to be registered as a land charge with the land registry as this will serve as actual notice to the buyer.
Types of notice when dealing with unregistered land?
Actual notice: Person having actual knowledge of the interest
Constructive notice: Person has notice of facts which they had made reasonable enquiry, they would have discovered themselves.
Imputed notice: Knowledge passed through agents of the buyer
Proof of adverse possession?
Person has actual physical possession of land
It is exclusive possession to them
Possession is without permission of the land owner
Must be held for a minimum of 12 years.
Failure to register a title
If the title is not registered to the buyer within 2 months of sale then the transfer of legal title to the buyer becomes void and reverts to the seller.
Class of title ranking
Absolute Freehold title
Possessory Title (based on factual possession rather than documented)
Good Leasehold title
Absolute Leasehold title (only awarded when HMLR have expected all superior leasehold and freehold of titles
How are Trust of Land and Co-Ownership defined?
Legal Estate - Held by trustees, enabling them to sell property but not benefit from proceeds.
Equitable Interest - Beneficiaries hold rights to sale proceeds and right to occupy
Trust arises automatically under statute when land is co-owned.
What is joint tenancy?
Each owner holds property 100% each
Doctrine of Survivorship applies interest passes to surviving co-owners.
Cannot be passed via will or intestacy.
What is Tenants in common?
Each owner can determine their share of the property
No survivorship so each co-owner’s share can be passed by will or intestacy.
Shares may be equal or reflect contribution proportions
What is a declaration of trust?
Formal agreement outlining co-owners’ respective shares.
Helps avoid disputes and ensures shares are distributed as intended.
Methods of severance of Joint Tenancy in Equity?
Written Notice: Clear intent delivered to co-owners
.
Mutual Agreement: All co-owners agree to sever.
Course of Dealings: Consistent behaviour indicating division of shares.
Forfeiture: Excludes a co-owner benefiting from a crime.
Bankruptcy: Converts interest to tenancy in common.
What is overreaching?
Process transferring beneficiaries’ interests from the land to sale proceeds.
Requires payment to two or more trustees or a trust corporation.
Protects buyers from behind-the-scenes interests (e.g., Form A restriction).
Key Characteristic of a Lease
A lease grants the tenant a “term of years absolute.
Essential features of a lease?
Certainty of term: Defined start and end dates.
Exclusive possession: Tenant can exclude all others, including the landlord.
Formalities: Generally requires a deed unless it is a short-term lease (3 years or less).
Rent is not a mandatory requirement for a lease to exist.
What is a lease?
Grants an estate in land.
Provides statutory protections (e.g., security of tenure).
Can be assigned or sublet.
What is a license?
A personal right; no interest in the land.
No statutory protections or transferability.
Courts prioritize the substance over the label when distinguishing between the lease and license.
Sublease vs. Assignment
Sublease: Tenant grants a new lease for a shorter term than their own lease. They remain liable for the head lease obligations.
Assignment: Transfers the tenant’s entire leasehold interest to another party, who assumes responsibility for the lease’s covenants.
What is Fixed-Term Tenancies?
Defined for a set duration, e.g., 3 months or 999 years.
May include break clauses, allowing termination before the full term.
Requires clear provisions for rent reviews in long-term leases to adjust rent periodically.
What is periodic Tenancies?
Renew automatically at the end of each period (e.g., weekly, monthly, yearly).
Can be created explicitly or implied (e.g., if tenant occupies property and pays rent without a formal agreement).
Require appropriate notice to terminate, usually matching the tenancy period
What are landlord covenants under a lease?
Quiet enjoyment.
Not to derogate from grant (e.g., no actions to undermine tenant’s use of the premises).
Repair and maintain structure (statutory in residential leases).
What are tenant covenants under a lease?
Payment of rent.
Use of premises as agreed.
Compliance with repair and alteration conditions.
Forfeiture of Lease
Landlord’s right to terminate the lease for tenant breaches:
Forfeiture clause must be explicitly included in the lease.
Serve a Section 146 Notice (under LPA 1925), specifying breach and allowing time for remedy.
Remedies for Breach of Covenant
For non-payment of rent:
Commercial Rent Arrears Recovery (CRAR).
Forfeiture (if specified in the lease).
Debt action.
For repair breaches:
Damages or specific performance.
Jervis v. Harris clause: Allows landlord to repair and recover costs as debt.
Continuing Liability for landlords and tenants and Authorised Agreement Assignments
Under the Landlord and Tenant (Covenants) Act 1995, tenants are released from covenants after lease assignment.
Landlords can require an Authorised Guarantee Agreement (AGA), making the outgoing tenant a guarantor for the immediate successor in title.
There are no automatic releases of convenants for landlord
Methods of termination of Leases?
Expiry: Lease ends naturally after the fixed term.
Surrender: Mutual agreement to terminate the lease.
Merger: Tenant becomes the landlord (or vice versa), fusing interests.
Forfeiture: Ends lease due to breach of terms.
Frustration: Rare; lease obligations end due to unforeseen events (e.g., destruction of land).
Effect of Assignment on Tenant Covenants?
Assignee inherits responsibility for tenant covenants (e.g., paying rent, repair obligations).
Landlord can enforce covenants against the assignee due to privity of estate.
The outgoing tenant may require an Authorised Guarantee Agreement (AGA) to act as a guarantor
Assignment Formalities
Assignments of legal leases must be executed by deed.
If not by deed, the assignment is void, but it may still transfer equitable interests if it complies with contract law.
Effect of Assignment on Subleases?
Subleases remain valid after an assignment of the head lease.
Incoming tenant (assignee) becomes the new landlord for subtenants.
The assignee inherits responsibility to fulfil covenants in the head lease while managing subtenants.
Definition of Easements?
An easement is a non-possessory right enjoyed by one landowner over another’s land.
Requires two pieces of land: the dominant tenement (benefited) and the servient tenement (burdened).
Examples of Easements?
Right of way.
Right to light.
Right to water.
Right to use pipes or cables running through adjoining land
Creation of Easements?
Express grant -when land being sold seller will consider if the land being sold any rights to be retained or rights reserved over the land
Implied grant - by necessity, common intention
By statute
By prescription - must show they used benefit for 20 years unchallenged and did not ask permission
What is Profits à Prendre?
A profit allows the holder to take something from another’s land:
Right to fish or hunt.
Right to extract minerals, timber, or produce.
Profits may exist in gross (independent of land ownership) or appurtenant (linked to a dominant tenement)
legal requirements to make an easement or profit
Must be created by deed
Must be indefinite or fixed term
creation of covenants?
Must be covenantor (benefit) and covenantee (burden)
types of covenants?
Can be positive (maintaining a fence) and negative ( not to build more than one dwelling on piece of land)
Enforcing covenants
The original covenantee to enforce against the covenantor even after the piece of land has been sold
passing the burden of covenants
Can be passed in equity if:
Negative in nature
accommodates the dominant tenement
Burden was intended to run with the land
passing the benefit of covenants
Can be passed in equity if:
Must touch or concern the land
and one of the following must apply:
Annexation - benefit is attached to the land
express assignment - the benefit is expressly assigned when the land is sold
building schemes - scheme of development has been setup where an estate is built
passing burden and benefit at common law?
Burden:
Generally does snot pass at common law, however if there is chain of indemnity this will break the rule
Benefit:
Touches and concerns the land
intended to run with the legal estate held by the covenantee
At the time covenant was made, the covenantee held the legal estate to be benefited
The assignee of the original covenantee holds the estate
Definition of a Mortgage?
A mortgage is a loan secured against land.
Borrower (mortgagor) grants a charge to the lender (mortgagee) in exchange for funds.
Allows repossession and sale of property if the borrower defaults.
What are legal mortgages?
Created by deed; must meet formalities (e.g., signed, attested, delivered)
What are equitable mortgages?
May arise through a written agreement.
Can be created if the mortgagor only holds an equitable interest.
Arises where a legal mortgage is defective but meets equity’s requirements.
Protection of Mortgages (Registered Land)?
Legal Mortgage: Must be registered to secure priority and enable power of sale.
Equitable Mortgage: Protected by registering a notice on the title.
Priority of interests is determined by date of registration.
The Right to Redeem
Borrower’s right to pay off the loan and reclaim the property.
Any clause postponing redemption excessively or making it illusory is void.
Example: Delaying redemption for 19 out of 20 years of a lease is invalid.
Methods of mortgagee’s Remedies
Sue for Debt: Recovery of unpaid loan amounts
.
Possession: Take control of property (requires court order for dwellings).
Foreclosure: Rarely used; extinguishes borrower’s rights, transferring ownership.
Power of Sale: Sell the property to recover the loan; activated by default (e.g., arrears).
Appoint Receiver: Manage or sell property, typically in commercial mortgages.
Priority of Mortgages
Determined by registration order (registered land) or deed possession (unregistered land).
Earlier registrations/deeds have priority.
Later equitable mortgages must be registered to gain priority over unregistered interests.
Undue Influence in Mortgages
Lenders must ensure co-owners, especially non-owning spouses, understand the transaction.
Independent legal advice and full financial disclosures are required.
Failure to address undue influence risks invalidating the mortgage.
