!!!! Land Law Flashcards
Real vs Personal Property
- Real- all property that is generally considered to be immovable- so land itself and any third-party rights in the land
- Personal- anything that isn’t ‘real’ property- so anything that is moveable
fixtures vs chattels and the test for these
- fixtures- anything that is a fixed part of the land- anything that can only be removed with some sort of demolition
- chattels- personal possessions with no connection or fixture with the land
2 fold test
- degree of annexation- if detaching it causes significant damage, it is a fixture- if it is just resting on its own weight it is a chattel
- purpose of annexation- why the item is there- if it is intended to be permanent, it is a fixture, if its just temporary it is a chattel
legal vs equitable estates in land
legal- name on the title deeds- represents who has the legal right to sell or transfer that piece of land
equitable- any beneficial rights an individual or third party may have in a property- including the right to take money from it
equitable example- contribute equally to purchase price but only one name on the deed- both entitled to take/benefit from the land to the extent of their individual contributions- but only the person with their name on the deed can sell it unless the other obtains a court order
LPMPA formal requirements for a deed
- clear on the face of it that it is intended to be a deed
- validly executed as a deed (written, signed, witnessed, delivered to person who will benefit from it)
what are the 2 types of legal estates and the 4 types of legal interests that can currently be created
legal estates- leasehold and freehold
legal interests- easements, mortgages, rent charge, rights of entry
all need to meet requirements of a deed and be registered with HMLR to be legal
equitable interests- how are they created and what are the most common types?
if there is a failure to comply with the requirements to create a legal interest in land- eg forget to register with HMLR or the interest doesn’t fall into one that’s capable of being a legal interest- then it will take effect in equity
egs
- restrictive covenants
- beneficial interests under a trust
- estate contracts
- proprietary estoppel
what is unregistered land and how do you prove you own it?
- not registered at HMLR
- prove it with title deeds and showing they have good root of title (show an unbroken chain of ownership for the last 15 years from the time the landowner is trying to dispose of the land)
4 classes of title granted by HMLR and definition of them
- absolute title- best class of title and is a guarantee to the land owner against any other person trying to claim a legal interest in the land
- possessory title- this arises where the land owner cannot produce sufficient documentary evidence to prove their ownership
- qualified title- granted if there is a specific defect in the title and will be stated on the register
- good leasehold- occurs if someone tried to register their leasehold interest for the first time, but the freehold has not yet been registered
legal and equitable rights- are they binding in unregistered land?
legal- binding under the principle that legal rights bind the world
equitable- bind anyone if registered on the land charges register or will bind everyone EXCEPT a bona fide purchaser for value without notice
overriding interests- what are they?
equitable rights are split into those that can be registered as a land charge and those that are overriding
definition- these are rights which ‘override’ a registrable disposition and will bind any future landowner even if they are not included on the title deeds.
the only way to discover these are by making enquiries and visiting the property
summary of main points to consider when looking at third-party rights
(when are legal rights binding, when are equitable rights binding, 3 types of notice)
legal rights
- continue to bind all future owners, no need to be registered as a land charge (except puisne mortgages)
equitable rights
- must be registered as land charge OR
- binding by the doctrine of notice (bona fide purchaser for value without notice)
notice can take one of three forms
- actual notice
- constructive notice- deemed to have notice of anything you should have known about if you made reasonable enquiries
- imputed notice- extends constructive notice to any agent instructed by the purchaser
how does the doctrine of overreaching apply in unregistered land?
- defence mechanism to protect purchasers and allow them to take the property free of any unknown equitable interests
- it works by removing the interest from the land when it is sold and instead placing it with the sale proceeds or whoever the sale proceeds are paid to
- this means the purchaser is not bound by the interest but equally the interest holder doesnt lose their right because of the land being sold
- so you claim against land owner, not land itself
- relates to interests that have been created under a trust of land- so legal owner must be separate from equitable owner
Joint tenants vs Tenants in common- how are interests held
- joint tenants is a legal interest
- tenants in common can only be beneficial
sequence of key steps taken by buyers solicitor if there is a mortgage
- approve draft contract
- receive mortgage offer
- exchange contracts
- prepare draft transfer
what survey is best for a relatively new house that needs refurbishments
- homebuyers valuation
and - survey report
when does principle private residence exemption for CGT apply?
If the area of land exceeds the statutory limit, then the gain will be apportioned and that part relating to the land falling within the permitted limit of 0.5 hectare (5,000 square metres) will benefit from the exemption. The remainder will fall outside the exemption
does the principal private residence exemption for CGT apply to buy-to-let properties that haven’t been used by the seller as their residence?
no-because the exemption only applies to a property which has been the only or main residence of the seller throughout their period of ownership, although certain periods of non-residence are permitted. The fact that the property has been used as a residence by the tenant(s) is irrelevant in this context.
Can a solicitor act in a contract race?
The solicitor can act provided all buyers are immediately informed that there is a contract race and the client gives consent to this disclosure
under the standard conditions of sale- if a buyer gives a seller a 10% deposit, and the seller then has a related purchase- how should the deposit be held by the seller’s solicitor?
All or part of the deposit may be used as a deposit on the seller’s related purchase, with the balance held as stakeholder until completion.
types of title guarantees
- full title guarantee (when they have full legal title)
- limited title guarantee (when you only have a limited personal knowledge of the property (acting as professional executor) including the deceased’s ownership of it and any matters affecting it)
under the standard conditions of sale, can the buyer occupy a house following exchange of contracts but before completion?
- yes on the basis that the buyer is a licensee not a tenant
If someone over the age of 18 lives with seller of a property- what step is required in relation to them?
They must sign the contract to agree to release all rights they may have in the property and to vacate on completion
What would be the purpose of carrying out an official search of the index map of an unregistered property with no title deeds?
- to identify whether the whole or any part of the property has a registered title
Energy performance certificate facts
- dont need them for a listed building if it would alter its character or appearance
- is valid for 10 years
- contains recommendations about how to reduce energy use
- must be obtained before the property is marketed for sale
- gives a rating from A to G
2 main parts of a local search
- local land charges search
- standard enquiries of the local authority
what is the role of the NLIS- National Land Information Service?
it provides a single point of enquiry for making pre-contract searches
Do enquiries need to be made by a buyer’s solicitor regarding building regulations consent?
Yes- there is no time limit for enforcement proceedings for breach of building regs
what does it mean if a building is listed as an asset of community value?
the property cannot be sold unless a community interest group is given the opportunity to make a bid for the property
case law with regard to failure to get building regulations consent for improvements- what does it say about buyers solicitor
It confirms that a buyer’s solicitor will have acted negligently if they fail to take all reasonable steps to obtain copies of building regulations consents
what is the effect of an Article 4 Direction in respect of all building operations?
Prevents any building works being carried out upon the house without planning permission having been granted
how long have the council got to undertake enforcement action regarding planning permission?
within 4 years of completion of the building works
