Land Law Flashcards

Question

What are the consequences of failing to report treasure found under the Treasure Act 1996?

Answer 1

Failing to report treasure can lead to criminal charges, and individuals may miss out on significant rewards for their finds.

Answer 2

The Infrastructure Act 2015 allows for deeper drilling, such as fracking, without requiring the landowner's permission.

Answer 3

They received lengthy prison sentences for not disclosing a hoard of rare Anglo-Saxon jewellery and coins, which could have earned them a reward.

Answer 4

The principle established in Ad Inferos is the 'Finders keepers' principle, which suggests that a finder of a lost chattel has rights to that chattel.

Answer 5

In Parker v British Airways, the court ruled that the plaintiff had rights to a bracelet found in an executive lounge based on the ancient common law rule that finding and taking control of a lost chattel grants the finder rights to it.

Answer 6

In Waverley BC v Fletcher, the court determined that a medieval brooch found just below the land surface belonged to the council, as it was found beneath the surface.

Answer 7

In Elwes v Brigg Gas Co, the court held that a prehistoric boat discovered 6 feet below the ground belonged to the landlord, not the tenant who found it.

Answer 8

Water that passes over or flows through land cannot be owned by the landowner.

Answer 9

If land is partly covered by water, the landowner does not own the water, but may need a license to extract large volumes, while small amounts for agricultural or domestic use may be owned.

Answer 10

In non-tidal waters, the landowner has rights to fish and keep the fish, while in tidal waters, the right to fish extends only to the ebb and flow of the water.

Answer 11

Ownership rights over wild animals depend on whether the animals are alive or dead.

Answer 12

The Suprajacent Zone refers to the airspace above land, which is divided into two levels: the Lower Stratum, where landowners have rights over immediate airspace, and the Upper Stratum, which is owned by no one.

Answer 13

Griffiths J stated that a landowner owns as much airspace as is reasonably necessary for the enjoyment of their property.

Answer 14

A landowner's rights over airspace typically extend to an altitude of about 200 meters, which is the height over which aircraft can legally fly.

Answer 15

The Civil Aviation Act 1982 states that no action for trespass or nuisance can be taken due to the flight of an aircraft over property at a reasonable height.

Answer 16

Article 8 of the Human Rights Act 1998 protects homeowners' right to respect for their private and family life.

Answer 17

In Hatton v United Kingdom, the case involved increased night flights from Heathrow Airport and whether it breached Article 8, concluding that while night flights cannot be stopped, affected individuals should receive more compensation.

Answer 18

Property in a legal context refers to the rights and interests that a person has in a tangible or intangible asset.

Answer 19

Property is not the thing itself but the right in or over the thing or object in question.

Answer 20

Subjects are individuals or corporations having legal entity, while objects are things of value accepted by the legal system as capable of control.

Answer 21

The subject obtains a proprietary right in the object through a legal relationship recognized by the legal system.

Answer 22

Types of property include personal property, choses in action, choses in possession, and real property.

Answer 23

Choses in action are intangible rights, such as shares, while choses in possession are tangible rights, such as a car.

Answer 24

Real property refers to property that is immovable, specifically land.

Answer 25

A key feature of property is that it binds third parties.

Answer 26

A property right is a Right in Rem, which is a legal right on an object that can be enforced against the whole world.

Answer 27

A personal right is a Right in Personam, which is a right against a person and is attached to the individual, not the land.

Answer 28

Key characteristics include a bundle of rights in relation to a thing, the existence of a 'thing', the value of the 'thing', transferability of the right, and the right to use or exclude.

Answer 29

The three key features of ownership are title (the legal right to the thing), rights of use/exclusion, and the right to alienate the thing.

Answer 30

The Oath of Salisbury on 1st August 1086, where it was established that all land was owned by the King and his subjects were granted rights in that land.

Answer 31

An estate is a slice of time or period of time in land.

Answer 32

It states that the only estates in land capable of subsisting or being conveyed or created at law are an estate in fee simple absolute in possession and a term of years absolute.

Answer 33

A freehold or fee simple estate is an estate of potentially unlimited duration, representing the amplest estate a person can have.

Answer 34

The term 'fee simple' originally indicated that the land was inherited by the general heirs of the current tenant.

Answer 35

This concept refers to an estate that has no set time period of ownership and can be inherited under the owner’s will or intestacy. If there is no one to inherit the land, it reverts to the Crown.

Answer 36

'Absolute' means that the estate has no restrictions preventing it from lasting as long as there are persons entitled to inherit it.

Answer 37

'In possession' indicates that the estate must be current and not a future right to use it. It does not require physical possession of the land itself.

Answer 38

A leasehold or term of years absolute is an estate of limited duration that lasts for a specified period, often referred to simply as a 'lease'.

Answer 39

A leasehold is a legal estate of limited duration with an end point to ownership, while a fee simple absolute in possession has no such limitations and is considered a stronger form of ownership.

Answer 40

Legal rights are created by compliance with statutory requirements and are enforceable against the whole world, while equitable rights arise from informal transactions and are enforceable against everyone except bona fide purchasers for value without notice.

Answer 41

It matters because legal rights are enforceable against everyone, while equitable rights can only be enforced against certain parties, excluding bona fide purchasers for value.

Answer 42

Legal interests in land include easements, profits a prendre, charges by way of legal interest, certain statutory charges, rent charges, and rights to re-enter.

Answer 43

An easement is a legal interest that grants a right to do something on the land of another.

Answer 44

A right to re-enter allows a party to reclaim land at the end of a lease.

Answer 45

Rights that are not classified as legal estates or legal interests can only exist in equity, such as restrictive covenants.

Answer 46

'Equity’s darling' refers to a bona fide purchaser for value of the legal estate without notice, who is protected from equitable rights.

Answer 47

Rent charges are a right to receive revenue from land other than through lease or mortgage, and they are very rare, with all abolished after 2037.

Answer 48

Fixtures are items that are attached to the land and are considered part of the property when sold, such as a fireplace or fitted kitchen.

Answer 49

The basic rule is that fixtures are fixed to the land and are considered part of it, while fittings are personal property that can be taken when moving.

Answer 50

One can determine this by applying two tests: the degree of annexation and the purpose of annexation.

Answer 51

The degree of annexation test assesses how permanently an item is attached to the land, considering whether its removal would cause damage.

Answer 52

The purpose of annexation is to determine if the item was fixed to the land for its own use or for the more convenient use of the land or building.

Answer 53

A fitted kitchen is an example of a fixture, while a dining table is an example of a fitting.

Answer 54

In Leigh v Taylor, items attached to the land for the enjoyment of the chattel itself were regarded as chattels, not fixtures.

Answer 55

'Chattels Real' refers to fixtures that are considered part of the land.

Answer 56

In Holland v Hodgson, it was noted that stones used to form a dry stone wall become part of the land, while the same stones stacked in a builder's yard remain chattels.

Answer 57

Buckland v Butterfield is significant as it contributes to the legal understanding of fixtures and fittings in property law.

Answer 58

Removing a fixture may cause damage to the property or the land, which is a key consideration in determining its status.

Answer 59

Items merely affixed for display do not qualify as fixtures, while those permanently attached are considered part of the land.

Answer 60

Fittings are considered personal property, meaning they are not attached to the land and can be taken when moving.

Answer 61

Fittings do not pass with the land when selling a property, as they are not classified as part of the land.

Answer 62

The permanence of an item affects its classification; items that are permanently attached are likely to be classified as fixtures.

Answer 63

Trusts can be created by declaring oneself as trustee of one's own property or by transferring property to trustees to hold for a beneficiary.

Answer 64

Express trusts are intentionally created by the settlor declaring themselves as trustee or transferring property to a trustee, and must be in writing as per section 53 (1)(b) LPA '25.

Answer 65

The subcategories of express trusts include fixed trusts, discretionary trusts, exhaustive trusts, and non-exhaustive trusts.

Answer 66

Fixed trusts specify the beneficiaries and their shares expressly, while discretionary trusts give the trustee the discretion to select beneficiaries and determine their shares.

Answer 67

Exhaustive trusts require trustees to distribute all income accruing to the trust fund, whereas non-exhaustive trusts allow trustees the power to accumulate income.

Answer 68

Implied trusts are not expressly granted and arise through implication or legal doctrine.

Answer 69

The types of implied trusts include resulting trusts, constructive trusts, and statutory trusts.

Answer 70

Resulting trusts arise when an express trust fails or when there is a presumed intention to create a trust.

Answer 71

Constructive trusts arise when equity presumes that the legal owner holds the trust property on trust for someone else.

Answer 72

Statutory trusts arise through legal doctrine as outlined in sections 34 and 36 of the LPA '25.

Answer 73

Concurrent interests in land refer to ownership by two or more persons at the same time, such as a couple purchasing a house together.

Answer 74

Successive interests in land occur when one person is entitled to possession of land in succession to another, such as a will leaving property to a spouse for life and then to a child.

Answer 75

Co-ownership occurs when two or more people are simultaneously entitled to ownership rights to the same piece of land.

Answer 76

The two types of co-ownership are joint tenancy and tenancy in common.

Answer 77

TOLATA '96 established that a trust for land automatically arises when land is owned by more than one person, giving trustees discretionary power to sell or retain the land.

Answer 78

Legal title to property can only be held upon a joint tenancy as per section 1(6) of the Law of Property Act '25.

Answer 79

Legal ownership can only be held as joint tenants, while equitable ownership can be held as either joint tenants or tenants in common.

Answer 80

A minimum of 2 trustees and a maximum of 4 trustees are required for trusts of land.

Answer 81

Joint tenancies involve co-owners who are wholly entitled to the entire property without distinct shares, meaning they all own all the land together and cannot exclude one another from using it.

Answer 82

The right of survivorship means that when one joint tenant dies, their interest in the property automatically passes to the remaining co-owners, and cannot be bequeathed in a will.

Answer 83

The four unities—Unity of Possession, Unity of Interest, Unity of Title, and Unity of Time—must all be present for a joint tenancy to exist, ensuring equal rights and interests among co-owners.

Answer 84

If any of the four unities is missing, the beneficial interest is held as a Tenancy in Common instead of a joint tenancy.

Answer 85

An express declaration by the grantor stating that the estate is to be held as a joint tenancy or tenancy in common is conclusive in determining the nature of the ownership.

Answer 86

1. Check if the four unities are present. 2. Determine if the grantor expressly stated the estate type. 3. Look for words of severance in the grant document. 4. Assess if circumstances suggest a tenancy in common.

Answer 87

Unity of Possession means that all tenants have an equal right to possess the entire property, with no tenant having the right to exclude others.

Answer 88

Unity of Interest requires that all co-owners have the same interest in the property, in terms of extent, nature, and duration.

Answer 89

Unity of Title means that all owners must acquire their title to the property through the same means or document.

Answer 90

Unity of Time requires that all co-owners acquire their interest in the property at the same time.

Answer 91

In registered land, the transfer form allows transferees to indicate whether they hold the property as joint tenants or tenants in common, clarifying the nature of ownership.

Answer 92

Words of Severance refer to phrases that indicate tenants wish to hold distinct and separate shares in property, demonstrating their intention to hold equitable interests as tenants in common.

Answer 93

Examples include: 'In equal shares' (Payne v Webb), 'Equally' (Lewen v Dodd), 'Share and share alike' (Heathe v Heathe), and 'To be divided between' (Peat v Chapman).

Answer 94

Equity presumes a Tenancy in Common over a Joint Tenancy in cases such as when money is advanced on mortgage by multiple persons, land is purchased in unequal amounts, land is bought as partnership property, or joint purchasers hold land for individual business purposes.

Answer 95

Transferring shares to another party results in the transferee becoming a tenant in common, as the four unities required for a joint tenancy are no longer present.

Answer 96

Methods of severing a joint tenancy include alienation (total or partial), mutual agreement among co-owners, mutual course of dealing, and severance by written notice under s.36(2) LPA 1925.

Answer 97

The only unity required for a Tenancy in Common is unity of possession, meaning all tenants have the right to possess the whole property.

Answer 98

In joint tenancies, there is an element of survivorship, meaning that upon the death of one tenant, their interest automatically passes to the surviving tenants, unlike in tenancies in common.

Answer 99

Under Sec 4 TOLATA '96, trustees have the power to postpone the sale of property for an indefinite period.

Answer 100

Trustees have a duty to have regard to the rights of beneficiaries as per Sec 6(5) of TOLATA '96.

Answer 101

When shares are transferred, the new owner becomes a tenant in common, as the necessary four unities for a joint tenancy are not maintained.

Answer 102

Improper execution of notice of severance can lead to legal disputes, as seen in cases like WX Investments v Begg and Fantini v Scrutton.

Answer 103

Equitable presumption refers to the legal assumption that parties hold property as tenants in common under certain circumstances, such as unequal financial contributions or partnership property.

Answer 104

Trustees can delegate their functions to beneficiaries who are of full age and capacity and are beneficially entitled to an interest in possession, as stated in Sec 9 TOLATA '96.

Answer 105

Key differences include the presence of survivorship in joint tenancies and the requirement of unity of possession in tenancies in common.

Answer 106

Bankruptcy can lead to severance of a joint tenancy, as seen in the case of Re Dennis, where the bankruptcy of one tenant affects the joint ownership.

Answer 107

Trustees should give effect to the wishes of the beneficiaries as far as is consistent with the general interests of the trust, and in case of a dispute, they should follow the wishes of the majority by value.

Answer 108

Exceptions include when the trust instrument excludes the section 11 duty, when the trust is created under a pre-TOLATA will, or when the trust arises from a pre-TOLATA disposition.

Answer 109

Section 10 replaces section 26(1) of LPA '25, stating that if the consent of more than two persons is required by the disposition creating the trust, the consent of any two is sufficient for the purchaser.

Answer 110

Overreaching occurs when beneficiaries with an interest in the land are overreached if someone pays two trustees for the land.

Answer 111

Section 14 allows any person with an interest in the land to apply to the court for an order to review the trustees' exercise of their functions or to declare the nature and extent of a person's interest in the property.

Answer 112

The court must consider the intentions of the trust creators, the purposes for which the property is held, the welfare of any minor occupying the land, and the interests of any secured creditor of a beneficiary.

Answer 113

Section 15(3) states that the court should also consider the circumstances and wishes of beneficiaries of full age entitled to an interest in possession, or in case of dispute, the majority according to the value of their combined interests.

Answer 114

Re Buchanan- Wollaston’s Conveyance

Answer 115

Section 15 (4) TOLATA '96 inserts section 335A of the Insolvency Act '86, which affects how co-ownership interests are treated in insolvency situations.

Answer 116

Joint tenants have a right of survivorship, meaning their interest passes to the remaining joint tenants upon death, while tenants in common can leave their property to anyone in their will.

Answer 117

The maximum number of trustees that can hold legal title is four.

Answer 118

Beneficial interest determines how the co-owners can use and benefit from the property, and it is crucial for understanding their rights upon death or in the event of a dispute.

Answer 119

The four unities required for joint tenancy are possession, time, title, and interest.

Answer 120

Upon the death of a joint tenant, their interest vests in the remaining joint tenants due to the principle of survivorship.

Answer 121

Equitable presumptions can lead to a tenancy in common being presumed over a joint tenancy in certain circumstances, particularly when contributions to the purchase are unequal.

Answer 122

Express statements clarify how co-owners wish to hold their equitable interests, but in the absence of such statements, the default position may be joint tenancy.

Answer 123

The absence of words of severance suggests that the co-owners intend to hold their beneficial interest as joint tenants.

Answer 124

If joint purchasers provide unequal shares of the purchase money, it may lead to a presumption of tenancy in common rather than joint tenancy.

Answer 125

One should split the discussion into legal and equitable interests, identifying the holders of legal title and their respective equitable interests.

Answer 126

The legal title is held by the first four individuals as trustees, and it must be held as a joint tenancy. The equitable interests are determined to be held on a beneficial joint tenancy.

Answer 127

Sections 14 and 15 of TOLATA '96 and relevant case law are applied.

Answer 128

The original purpose is significant as 2 out of the original 5 co-owners still believe in it, which may influence the court's decision.

Answer 129

An easement is an intangible right. It is a right that someone has over someone else’s land for the benefit of their own land. It is mostly benefitted a specific piece of land, increases enjoyment of their own land

Answer 130

- Positive = to do something e.g right of way - Negative = not to do something – prevented from doing something on their own land (very rare) e.g right to light

Answer 131

The land that bears the Burden

Answer 132

Plot of land that benefits from the easement (exercises their right over someone else’s land) When the dominant land is sold, the benefit of the easement is transferred to the new purchaser. Same with the servient land

Answer 133

- There must be a servient and dominant tenement - The easement must accommodate the dominant tenement - The dominant and servient tenements must be owned by different people - The easement must be capable of being the subject of a grant - Right claimed must be capable of being conveyed in a deed – must have the right to exist and be sufficiently certain with its definition

Answer 134

- Proximity – the plots of land don’t need to be attached or neighbouring they just need to be close – sufficient proximity for plot of land to benefit from easement - Nature of claim being made over the land – Business/Recreational Use – determine whether the right is of a benefit to the land and not to the owner of the land

Answer 135

Something that looks like an easement but is NOT an easement

Answer 136

* The right must not be excessive * The right must not involve the servient owner in expenditure – should not be spending money for the existence of the easement * The right must not be negative unless one of the exceptions * There must be a capable grantor and grantee – capable of creating that easement

Answer 137

- S.1 of LPA 1925 – Easement can only be legal interest if attached to a Dominant Tenement which is held under a normal freehold/leasehold - Created by statute, deed, registered disposition or by prescription

Answer 138

- Arise when the person has not followed the formalities for it to be a legal easement - Must be embodied in a written contract which equity perceives as enforceable s1(3) LPA 1925 and s.2 LPMPA 1989

Answer 139

Expressly and impliedly

Answer 140

- Express easements can be created through a grant (when the owner enters into an agreement with his neighbour between themselves) or through reservation where someone sells their land to someone else but they must still use it in some way so informs them they are reserving the use of that land and still reserving the easement

Answer 141

- Implied easements are made in one of 4 ways. Through necessity, common intention (both either through grant or reservation), the rule set out in Wheeldon v Burrows or through s.62 LPA 1925

Answer 142

Grant: You have a plot of land, and you sell a part of the land e.g vegetable patch etc – in the sale there is no express agreement for the purchaser to go through the land to get to their own but the right of way is implied through necessity otherwise the person who buys the plot of land cannot access it Reservation: Imagine the opposite way round and you cannot access your patch of land after selling the rest of it to someone else so you reserve your right of way to be able to enjoy your land and access it through necessity.

Answer 143

Grant: identical to necessity but easement is a needed for the use of the land but here it is not necessary – it has arisen through an agreement between the parties – common intention between the 2 neighbours ie they both know what they can and cannot do/benefit from e.g driveways Reservation: Very rare

Answer 144

Looks like an easement but isn’t one – quasi easement. Own both plots of land with a path to access the field and the house. You sell the house to Paul but keeps the field. He notices the footpath – provided the criteria is met, the easement can be created impliedly through this rule. Can only be GRANTED and not reserved Conditions that must be met: This case created the rule that upon the grant of part of land, there would pass to the grantee all quasi easements over the retained land provided: – a) they were continuous and apparent– b) were necessary to the reasonable enjoyment of the land sold c) had been and were in use by the seller for the benefit of the part sold.

Answer 145

Can turn a mere right into a proprietary right On conveyance s.62 transfers with the land all benefits which are attached to it: “A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey with the land, all buildings, erections, fixtures...liberties, privileges, easements, rights and advantages whatsoever, appertain or reputed to appertain to the land, or any part thereof...”

Answer 146

can only apply to a right that is capable of existing as an easement

Answer 147

Easement by prescription, also called a prescriptive easement, is a property right acquired when someone uses another person's property in a way that is open, adverse, and continuous. Prescriptive easements often arise on rural land when landowners fail to realize part of their land is being used, perhaps by a neighbor. - Common Law – “Time immemorial” - Since 1189 - Lost modern grant – 20 years - Statutory – Prescription Act 1832 * If you have used a right for 20 years without being told you cant you may automatically have right of way through prescription

Answer 148

- Unitary Ownership - Release - Abandonment - Act of Parliament

Answer 149

Conveyancing is the legal process of transferring ownership of a property or a piece of land from one person to another – involves using a written document such as a contract, deed or lease to transfer the property

Answer 150

- Law of Property Act 1925 - Law of Property (Miscellaneous Provisions) Act 1989

Answer 151

1. Pre-contractual stage 2. Post Contract/ Pre-Completion stage 3. Completion/ Post Completion Stage

Answer 152

“Subject to contract” or pre-contractual agreement entered into – offer made between the 2 parties, and it being accepted * It has no legal effect; * Either party is free to withdraw from the transaction without incurring any penalty to the other side. * Caveat Emptor rule: let the buyer beware – buyers’ roles to find out if there are any issues with the property or the contract – seller doesn’t have to make things aware to the buyer

Answer 153

- Need to see Client or Clients and request ID (money laundering purposes) - Need to provide details of Solicitor’s costs in advance – this is sent out to the client in writing and is known as the Client Care letter. - Need to check finances and where their money is coming from

Answer 154

- EPC – Energy performance certificate (usually done before the house gets put on the market) - Enquire with Seller – Property information form and Fixtures and Fittings Form (filled in by seller and sent to buyer by solicitor)

Answer 155

* Land Registry Fee * Search fees * Tax to be payable on the Property (Stamp Duty) * Deposit to be paid on exchange (usually 10%) * Arrange for mortgage

Answer 156

- Basic Valuation (mortgage lender sends someone out and just checks its standing and hat the price is reasonable) (not the same as a survey) – Smith v Eric S Bush [1990] 1 AC – still owe a duty for a buyer but only on the fact that the buyer is paying the price the property is worse - Home buyer’s valuation and survey report - Full structural survey (every place in the property is checked to highlight any issues and so the buyer can then go back to the seller with some negotiations) (you can sue surveyor if you find something after they said there is nothing)

Answer 157

It is proving to the Buyer’s solicitors by documentary evidence that the Seller owns the title and property he is purporting to sell. When does this take place? This will normally take place prior to exchange of contracts, so the buyer’s solicitors can raise any title problems before they exchange contracts. What is sent to the Buyer’s solicitor to investigate title? It depends on whether the land is registered or unregistered.

Answer 158

- Ensure that the seller is able to transfer what he has contracted to sell - Identify whether there are any defects in, or problems raised by the title which would adversely affect the interests of the buyer

Answer 159

1) Registered Land – Seller supplies buyer with official copies of registered title from the Land Registry. 2) Unregistered Land – Inspecting title deeds rather than through the land registry. Epitomes of title. Investigation of Title - Registered title In Registered land the documents that you would be likely to receive are: a. Official Copies of entries on the register. b. Copy of the Title Plan c. Copies or abstracts of any documents that are noted on the register e.g. a Conveyance containing restrictive covenants that is referred to in the Charges Register. d. Evidence as to any matters about which the register is not conclusive e.g. Interests that override. Investigation of title - Unregistered title In unregistered land the documents that you would expect to see is the Epitome of Title. - The Epitome will contain details of all the documents or abstracts of documents and events under which the legal estate and all legal and equitable interests have changed hands. - The Epitome will start with a Conveyance on sale which is at least 15 years old. This is known as the Root of title. - There must be an unbroken Chain of Title from the root to the current owner Other conveyancing documents that need to be included in the epitome apart from the conveyances of sale are: a. Mortgages and vacating receipts i.e. if paid in full b. Assents/ grants of probate etc – to show chain of title c. Powers of Attorney d. Deeds of Gift/Transfers of Equity e. Statutory Declarations etc

Answer 160

Normally we don’t need to look beyond the root of Title document and are not entitled to see any documents prior to this. There is however an exception to this rule under S45 LPA 1925, which says that if the root of title document itself refers to a plan, or the land is being sold subject to matters that are contained or referred to in a pre-root document then you are entitled to see a copy of that document.Such documents are known as pre-root documents. Once the root is established, the chain of ownership needs to be checked

Answer 161

Buyer’s solicitors The Buyer’s solicitor will investigate title to check the Seller can sell what he is purporting to sell and see if anything which affects the property which can bind the buyer. E.g. a restrictive covenant against user – this could be a potential problem if the property can only be used for residential purposes and the buyer wants to conduct a business from the premises. Seller’s solicitors The seller’s solicitor will investigate title to provide evidence of what the seller is purporting to sell and spot any problems in the title which you will need to disclose in the contract so that the seller is not in breach. It is a requirement to include title information if available, under the Law Society Conveyancing protocol. Mortgagee’s Solicitors If the Buyer is purchasing by way of mortgage, then the Buyer’s solicitor will investigate the title on behalf of the mortgagee to ensure adequate security for the loan, Buyer’s Solicitors will certify this to the mortgagee in the Report on Title when requesting funds.

Answer 162

To discover: i. The potential problem areas in relation to proof of ownership AND ii. You are also checking what is owned AND iii. You are also looking for third party interests which the seller has not disclosed as incumbrances, but which nevertheless are binding on the buyer because of their nature. Why investigate before exchange?  We investigate before exchange so that both parties can exchange contracts knowing with absolute certainty that they will be able to proceed to completion.

Answer 163

i) Check the contract matches up with documentation supplied ii) Check that all the documents are referred to in the contract, including those relating to restrictive covenants, easements etc iii) Check the property description and plan iv) Check no break in the chain of ownership

Answer 164

Sale by a Sole surviving co-owner Need to check how the co-owners held the property – Joint tenants or Tenants in common? UNREGISTERED TITLE - Look at the conveyance in which the co-owners bought the property. Look for a declaration of trust. - Does the conveyance state to hold as joint tenants in equity or a tenants in common. REGISTERED TITLE Look at the Proprietorship Register to see if there is a restriction in the following words: “No disposition by one proprietor of the land (being the survivor of joint proprietors) and not being a trust corporation, under which capital money arises is to be registered except under an order of the Registrar or of the Court” - If the above restriction is there, then the co-owners held the property as tenants in common. - If the above restriction isn’t in the register, then the co-owners hold as joint tenants

Answer 165

Registered Land - Just need a copy of the death certificate to show that the survivor is now absolutely entitled as beneficial owner. Unregistered land - Need the death certificate but also need to check the conveyance under which the joint tenants bought, to see that there is: * no evidence of severance * no bankruptcy proceedings registered against the names of either joint tenants * the conveyance by the sole survivor to the Buyer contains a clause stating the survivor is solely and beneficially entitled to the property

Answer 166

Registered Land - Just need a copy of the death certificate to show that the survivor is now absolutely entitled as beneficial owner. Unregistered land - Need the death certificate but also need to check the conveyance under which the joint tenants bought, to see that there is: * no evidence of severance * no bankruptcy proceedings registered against the names of either joint tenants * the conveyance by the sole survivor to the Buyer contains a clause stating the survivor is solely and beneficially entitled to the property

Answer 167

There are different types of powers of attorney that may be used: i) General Power under S10 – allows the attorney to deal with all the assets ii) Special Power – only permits attorney to deal with specific assets iii) an Enduring Power – this endures through the donors mental incapacity. These powers could only be created up to October 2007. iv) a Lasting Power – this is the same as the enduring power and replaced it in October 2007

Answer 168

In ordinary or special powers of attorney (not enduring or lasting), there are two possible conclusive presumptions that the buyer did not have knowledge of revocation: 1) If the sale was within 12 months of date of power - NB there is no logical reason for this presumption! OR 2) If the Buyer makes a statutory declaration that he had no knowledge of revocation, before or within 3 months after the sale to him. In practice the buyer or his solicitor should make this declaration immediately if the ordinary or special power is over 12 month old.

Answer 169

The Buyer’s solicitor should carry out a Company Search, if the Contract names the Company as the Seller. This is to check the Company exists and is not in administration etc. and to check if there are any charges over the property that the company has created. A Company is able to deal with land unless it is restricted to do so by the it’s articles of association or a restriction in the register. Execution of documents by a Company is different to an individual so documents should be checked to ensure they have been executed properly

Answer 170

Registered title i) Form DS1. - Application for discharge of registered charge, executed by mortgagee - This will be needed for all current mortgages i.e. or ii) e-DS1"s or ED’s” Electronic Notification of Discharge - The lender will electronically transmit the ED or e-DS1 to the Land Registry to discharge the charge. Unregistered title Receipt under section 115 LPA 1925 - This operates as a full receipt for all mortgage monies. A receipt is endorsed on the mortgage deed and provided it is signed by the lender and names the person making the repayment, who is the borrower, then this operates as a discharge of the mortgage. * Executed by the Lender (mortgagee) Building Society mortgages - Discharged by sealing the receipt and stating it is signed by the person authorized by the building society or use s.115 receipt as above)

Answer 171

- Executors or Administrators

Answer 172

- Grant of Probate - taken out by the executors appointed in the will - Grant of Letters of Administration - taken out by the administrators appointed under the intestacy rules

Answer 173

- PRs have all the powers of trustees of land - All PRs who prove the grant must be parties to the contract and the purchase/transfer deed in the case of a sale (to a purchaser) or to the assent (to a beneficiary) - However, a single proving PR may act on his own and can give a valid receipt for purchase money and therefore overreach the beneficial interests under the will or on intestacy Different to the general 2 trustee rule when trustees sell

Answer 174

Unregistered title Problem - What if PRs have already assented this property to someone else before the current sale. This could be due to a mistake if they are dealing with more than one property – BE CAREFUL THE PROEPRTY HASN’T ALREADY BEEN SOLD AND PUT INTO THE NAME OF THE BENEFICIARY The Buyer will take only take good title from the PR’s provided: 1) Conveyance to the purchaser contains the s.36(6) AEA 1925 statement in writing made by a personal representative that he has not given or made an assent or conveyance in respect of a legal estate, and 2) Check the original grant to ensure no memorandum of sale/assent has been endorsed on it for a previous disposition, as this would be considered notice and so no protection will be given from the s.36 (6) statement, and 3) Any prior disposition is not for valuable consideration Registered Title Section 36(6) AEA'25 does not apply because it does not need to - Purchaser relies on the provisions of the Land Registration legislation as the PR’s can be registered as the landowners. - However, most PR’s will not bother to register themselves and instead will provide the Grant of Probate to prove their authority to deal with the title to the property. Provided all the named PR’s join in the transfer this will be sufficient. If they had assented the property to a beneficiary, then would make an application to change the register so would appear on this

Answer 175

Has the power of sale arisen? - This power is available to every lender, whose mortgage is made by deed, once the legal date of redemption has passed – this date will be stated in the mortgage deed or in some cases no date is given but terms stipulated upon which the Mortgagor may at any time redeem the mortgage (S101 LPA 1925). Is the Power exercisable? - Protection for a purchaser is given under section 104 LPA 1925. A purchaser in good faith is not concerned with whether or not the power is exercisable, as he will still get good title. All a purchaser would need to do is check, by looking at the mortgage deed, whether the power has arisen. What is the legal effect of the sale by the mortgagee? - No receipt (unregistered title) or Form DS1/e-DS1/ED1 (registered title) is necessary in respect of: * the mortgage under which the power of sale is exercised and * any subsequent mortgages that the lender has priority over because they are “overreached” by the sale.

Answer 176

A transaction at an undervalue occurs where the consideration is well below the market value of the Property. It can occur on: - - transfers of equity in divorce settlements; or - deeds of gift e.g. where elderly people give property to their children free of charge to avoid having to pay nursing home fees etc; OR - An assent (i.e after the donor’s death as part of the devolution of the donor’s estate).

Answer 177

There is a potential problem, if the individual becomes bankrupt within the period of either 2 (company) or 5 years (individual) following the undervalue transaction. To be challengeable by the Trustee in Bankruptcy, the undervalue transaction must have taken place at a relevant time. It is prudent for a subsequent Buyer to assume that the relevant time is 5 years – if you go back and look for the last 5 years, you may proceed if the individual has not been bankrupt in the last 5 years

Answer 178

Where there is a transaction at an undervalue in an unregistered title (the epitome will give notice of the “relevant surrounding circumstances”) i.e. you will be aware of the transaction being at an undervalue. - A Land Charges search should be done against the donor to check for bankruptcy proceedings (“relevant proceedings”). This should be done from the date of the donor’s acquisition until 5 years after his date of disposal of the property. - If proceedings are revealed, the Buyer will not be protected. - If the Buyer happens to have actual knowledge of the proceedings, he will certainly not be protected REGISTERED TITLE - In registered land, if you are aware of a transaction at an undervalue (“relevant surrounding circumstances”) - A Land Charges Search should also be done in relation to registered title to check for any bankruptcy proceedings. This is the same as for unregistered land

Answer 179

These could include parent/child, Doctor/patient or Trustee/beneficiary etc! For a transaction to be valid you must show: i) Transaction is at a fair price (you should get an independent valuation) ii) All terms known and understood by the subordinate party iii) Each party has received or had opportunity to take independent legal advice If do not have the above = voidable at subordinate's request

Answer 180

* Local Authority search and enquiries – LLC1 and Con 29 * Coal Mining Search * Index Map Search * Land Charges Search * Other searches dependent upon the location of the property * Physical search or inspection of property * Environmental Searches * Water and Drainage searches

Answer 181

1. Gazumping occurs when a seller accepts a verbal offer from one buyer but then accepts a higher offer from another buyer before the sale is legally finalized. Gazundering happens when a buyer lowers their offer just before the exchange of contracts, often taking advantage of the seller's vulnerable position

Answer 182

S.2 LP(MP) Act 1989:  contract must be in writing  incorporating all the terms  single document signed by both parties or two identical documents What should be involved in the contract? i. Parties to the contract ii. Description of the Property of Land iii. Incumbrances over the Property or Land iv. Tenure v. Contract date and rate vi. Completion date vii. Title Guarantee viii. Conditions of sale – Law Society Standard Conditions of Sale (5th ed 2018 edition): 1. vacant possession 2. completion date and time 3. interest 4. deposit 5. Fixtures and Fittings Exchange of contract - In person - By Telephone – Domb v Isoz [1980] 1 All ER 942 Can use various formulas – Formula A(one solicitor has both sides of the contact), Formula B (passing between solicitors over the phone) and Formula C (long chain) - By Post

Answer 183

a. Ownership of land post exchange of contract - Lysaght v Edwards (1876) 2 ChD 499 b. Passing of risk (Paine v Mellor) The purchaser bears the risk if any accident happens to the estate after the exchange of contracts and should therefore insure against such a possibility. At the same time, the vendor cannot treat the estate as entirely their own. If the vendor does not take reasonable care of the estate, or wilfully damages it, they are liable to the purchaser in damages ( Clarke v Ramuz (1891) 2 QB 456).

Answer 184

- Condition 5.1 of the Law Society Standard Conditions of Sale provides that the purchaser retains the risk. The vendor however still owes a duty of care to the purchaser and is obliged to “transfer the property in the same physical state as it was at the date of contract.” This duty continues as long as the vendor is entitled to possession of the property and does not terminate if the vendor vacates the property before completion. c. Variation of contracts – must be signed by both parties At this stage the seller holds the LEGAL TITLE and the buyer holds the EQUITABLE TITLE

Answer 185

Buyer’s Solicitor - Prepare transfer deed - Prepare mortgage deed - Certificate of title/Report on Title to lender - Requistions to Seller’s Solicitors - Completion Statement to Client Buyer needs to do Pre-Completion searches If land is registered: * If selling whole of land then – OS1 * If selling part of the land then an OS2 * Gives the Buyer 30 working days priority period from date of search If land is unregistered: * Land Charges search against all the estate owners named in the title documents. * Gives the Buyer 15 working Days priority period to complete purchase Seller’s Solicitor: - Request Mortgage Redemption figure - Receive and approve Transfer deed from * Buyer’s solicitor and ensure Seller signs this in readiness for Completion. - Reply to Seller’s requisitions - Send Completion Statement to Client

Answer 186

- Completion in Person - Completion by Post Delayed Completion - Making time of the essence - Raineri v Miles [1981] AC 1050 – issue a notice to complete on the first day they are late completing – have 10 working days if they do not then the seller has the right to terminate the contract and keep their deposit Post completion Solicitors acting for Seller and Buyer must finalise the process

Answer 187

Seller’s Solicitor: - Contact Buyer’s solicitors and send over documents - Release keys and pay Estate Agents fee - Deal with discharge of any mortgages - Letter to Client with payment of balance due if any. Buyer’s Solicitor: - Complete Mortgage Deed - Pay Stamp Duty Land Tax and submit return to HMRC within 14 days of completion. Penalty of £100 if late submitting return.

Answer 188

1. Registered Land - Complete and submit to HMLR an AP1 within 30 days of OS1 search 2. Unregistered Land – Complete and submit to HMLR an FR1 within 2 months of Completion. Must adhere to the above time limits for submitting stamp duty form and applying for registration of title Buyer’s Solicitor needs to check registration of title is successful following completion and to send copies of the Title Information Document received from the Land Registry to the Buyers (and lender if applicable) – Legal and Equitable title are now transferred to the Buyer.

Answer 189

 A covenant is an agreement by lease, deed or another legal contract

Answer 190

 Restrictive covenants are binding conditions that are written into a property’s deeds or contract by a seller to determine what a homeowner can or cannot do with their house or land under particular circumstances

Answer 191

the covenantor (who carries the burden) and covenantee (who carries the benefit).

Answer 192

Positive covenants: burdens imposed on the covenantor to carry out a specific act e.g. a covenant to repair a wall or to keep property in good repair Negative Covenants: these prohibit specified kinds of activity or development of the covenantor’s land for the benefit of the covenantee’s land e.g. a covenant against building on the land.

Answer 193

a. S56(1) LPA 1925: has the effect that a covenant will be enforceable by all persons who are named generically in the covenant. E.g: X covenants with Y and all owners for the time being of Blackacre. The unnamed owner can enforce the covenant even though he is not mentioned in the conveyance. o This section applies to only those persons who are identifiable and in existence at the date of the covenant. A person who acquires a benefit under s 56 may pass it on successors in title by annexation or assignment. b. The Contracts (Rights of Third Parties) Act 1999: has made extensions to the rights of any third party to enforce a covenant entered into after May 2000. Covenants can now be enforced by anyone for whose benefit a party named in the deed was expressly contracted or was purportedly made for their benefit but they are not expressly referred to by name. c. The benefit of a covenant not entirely personal may be assigned in writing as a chose in action under S136 LPA. Notice should be given to the covenantor d. S78 LPA 1925: Provides that a covenant relating to land of the covenantee is presumptively ‘made with the Successor in Title (SIT) and the persons deriving title under him or them and shall have effect as if such successor and other persons were expressed’. o This section has two limitations: only applies to covenants that touch and concern the covenantee’s land and only apply to covenants that were entered into after 1925

Answer 194

1. The covenant must touch and concern the land. 2. The covenantee must have a legal estate in the dominant land 3. The transferee of the dominant land must also take legal estate in that land. 4. There must have been an intention that the benefit should run

Answer 195

Covenant needs to benefit the land and not be for the personal benefit of the covenantee. It needs to confer benefit on the land and not the landowner. Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board (1949) 2 KB 500 P & A Swift Investments v Combined English Stores Group (1989) - Lord Oliver set out the test to discover whether or not a covenant ‘touches and concerns’ the land: o The covenant must benefit the estate owner for the time being and it would cease to be of benefit to the covenantee if separated from the ownership of the benefited estate. o The covenant must affect the nature, quality, mode of use or value of the benefited land. o Even where (1) and (2) are satisfied, the covenant will not be regarded as ‘touching and concerning the land’ if the benefit in some way expressed to be personal to the covenantee

Answer 196

This would be either a fee simple absolute in possession (freehold) or a term of years absolute (leasehold) under s1 of the LPA 1925.

Answer 197

Under s 78 LPA the SIT does not need to have the same legal estate in land as the original covenantee. Smith and Snipes Hall Farm case: the original covenantee sold his land to the first plaintiff who then leased the land to the second plaintiff. Under s78 the first and second plaintiffs could enforce the covenant. The court held that the effect of s 78 is that a covenant is enforceable on behalf of not only the original covenantee but all SIT and all persons deriving title from such successors.

Answer 198

The parties must intend that the benefit of the covenant is to run with the land. It had to be shown that the parties to the deed intended the covenant to be enforceable by the original covenantee and subsequent SITs. It had to be shown that the benefit was attached or ‘annexed’ to the land. This was done expressly at the time of conveyance or assigned in a separate document. Recently the benefits of most covenants are impliedly passed via s78 LPA.

Answer 199

- General rule: burden of a covenant will never run at common law. The purchaser from the covenantor will not be bound by any covenants they agreed with the covenantee. The covenantor remains liable after sale Austenberry v Corporation of Oldham (1885)29 Ch D 750

Answer 200

A. Chain of indemnity covenants The original covenantee will remain liable on the original covenant. The original covenantor will take out an indemnity covenant with any purchaser in order to protect himself against subsequent breaches of covenant over which he will have no control. Then on a later sale another indemnity covenant will be taken again with the new purchaser. The disadvantage: as the chain grows it is more likely to break. The original covenantor may have died or become insolvent. The only remedy is damages which may not be appropriate. B. A long lease This may be enlarged into a fee simple under s.153 LPA 1925. It is suggested that this will allow the freehold to be subject to the same covenants as those contained originally in the lease. The burden of leasehold covenants can run at law and this case the leasehold rules continue to apply. This is rarely used and is cumbersome and artificial C. The rule in Halsall v Brizell (1957) Ch 169 This is also known as the doctrine of mutual benefit and burden. It is used to enforce positive covenants. The purchaser takes certain benefits under the conveyance then the purchaser cannot avoid the burdens of an associated covenant even where it imposes positive duties

Answer 201

Case facts: An estate was developed, and each owner agreed by deed that they would contribute towards the upkeep of certain communally enjoyed benefits including the drive, the sewers and the repair of the sea wall. Since each owner had the right to enjoy the benefits, the court held that they had the obligation to contribute towards the upkeep. The rule holds that if you have the right to use your neighbour’s drive or sewers then you have to bear some of the costs of upkeep, even when you are not the original convenantor.

Answer 202

1. Rights of re-entry: Dominant owner can reserve a right of entry which will be exercisable upon breach of a positive covenant. Disadvantage: The chain can break down; hard to locate original owner or he may have become insolvent. 2. A grant of a lease: the land can be leased rather than sold. Disadvantage: Rarely used/cumbersome method of ensuring a positive covenant enforced. 3. A rent charge: It is possible to annex a right of entry to a legal rent charge which itself is a legal interest in land. Disadvantage: Complex and legalistic

Answer 203

1. The covenant is one that benefits and protects the dominant land so the covenant must be one that ‘touches and concerns’ the land. 2. The claimant has a legal or equitable estate in the land of the original covenantee. In equity this is very wide and under s78 LPA 1925 the claimant not only does not need to have the same estate as the original covenantee, but also any occupier may enforce the benefit of a restrictive covenant. 3. Need to show that the benefit of the covenant has passed to the covenantee

Answer 204

Annexation, Assignment or a Building scheme

Answer 205

Involves ‘nailing’ of the covenant to land. The land itself must be clearly identified. Once the covenant is annexed either expressly or impliedly the benefit will pass in equity on each successive transfer of the land. a. Express Annexation At common law, the question of annexation rested on the question of intention. The conveyance had to annex the covenant expressly. Re Ballard’s Conveyance (1937) Ch 473: Held that there was no express annexation of a covenant which purportedly benefitted the whole of an estate of 1700 acres. If the words ‘to each and every part’ of the covenantee’s land are used. These words allow a broad interpretation to be taken of the passing of the benefit. In Marquess of Zetland v Driver (1939) Ch 1: The CA held that where a covenant was expressly annexed to any part of the dominant it would be enforceable by a subsequent purchaser of a part of the dominant land b. Implied annexation A covenant can be implied annexed from surrounding circumstances, but the benefit of the covenant must be clearly referable to a defined piece of land and the parties must have intended that the benefit attach to the land and not to the covenantee personally. This is obviously difficult to enforce and has become far less relevant in view of the far reaching effects of s 78 LPA 1925 c. Statutory annexation: s78(1) LPA 1925 If there are no words of express annexation and the covenant cannot be impliedly annexed then it may be statutorily annexed under s 78 LPA 1925.

Answer 206

1. A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed. For the purposes of this subsection in connexion with covenants restrictive of the user of land “successors in title” shall be deemed to include the owners and occupiers for the time being of the land of the covenantee intended to be benefited. 2. This section applies to covenants made after the commencement of this Act, but the repeal of section fifty-eight of the Conveyancing Act, 1881, does not affect the operation of covenants to which that section applied Federated Homes Ltd v Mill Lodge Properties Ltd (1980) 1 WLR 594

Answer 207

Difference between assignment and annexation is that assignment will only take place when the land is transferred by a person who enjoys the benefit of the land. Annexation is effected the moment that the covenant is granted. At common law the assignment of a covenant must satisfy the requirements of s136 LPA 1925. In equity, these conditions must be satisfied: 1. The covenant that is assigned must be capable of benefitting the dominant land. 2. The dominant land must be ‘certain’ or ascertainable 3. The assignment must have taken place contemporaneously with the transfer of the dominant land so that it is actually part of the transaction. Effect of assignment: assignee can enforce covenant against covenantor or his SIT if it is restrictive

Answer 208

‘ a local law for the area cover which it extends and has the practical effect of rendering each purchaser and his SIT subject to the restrictions and of conferring upon them benefits of the scheme, as between themselves and all other purchasers and their respective SIT.’ Each owner of the property within the area gets to enforce the individual covenants as covenantees and they themselves are subject to the covenants as covenantors.

Answer 209

1. Both the C and D have derived the title from the same vendor 2. Common vendor must prior to the sale of the plots now owned by the C and D have laid out a definite scheme of development. 3. There must have been an intention to impose not only the purchasers of land within the development but also on their SIT, a scheme of mutually enforceable restrictions 4. Every purchaser must have bought his land in full knowledge of the scheme and with an intention to be bound by its mutually enforceable restrictions 5th requirement added in Reid v Bickerstaff (1909): the area to which the scheme extends must be clearly defined.

Answer 210

Rule subject to four conditions: 1. The Covenant Must be Negative in nature. 2. The covenantee must at the date of the covenant have owned land benefited. 3. The original parties intended that the burden should bind successors in title. 4. The person against whom the covenant is being enforced has notice of it.

Answer 211

Removal of freehold covenants - Express discharge or variation - Implied agreement - Declaration by the court

Answer 212

declaration of the court to confirm the implied waiver of a covenant or that a covenant is void for lack of registration the Lands Chamber has the right to modify/extinguish a restrictive covenant if the applicant can show that: 1. The restriction is obsolete due to changes in the character of the property neighbourhood; 2. The covenant impedes reasonable use of the land and is either of no real value to the benefiting land owner or is contrary to the public interest; 3. The benefiting land owners have already agreed expressly or impliedly, by their acts or omissions to the discharge or modification of the covenant; and 4. The proposed discharge or modification will not be injurious to the benefiting landowners

Answer 213

- Is an equitable interest in land s 1(2) LPA 1925 Registered land - Notice (binds any third party purchaser of freehold). No notice on charges register no protection Unregistered land - Covenant after 1/1/26 Class D (ii) land charge - Before 1926 subject to the doctrine of notice.

Answer 214

- Common law: damages - Equity: injunctions/specific performance

Answer 215

 A contract that allows one party to rent property owned by another party for a specified period and payment Proprietary Right

Answer 216

S.205(1) LPA 1925

Answer 217

- Fixed term tenancies - Periodic tenancies - Tenancy at will - Tenancy at sufferance

Answer 218

- Legal lease over 3 years should be created by deed (S52 LPA 1925) - Legal lease for less than full market rent can be created without any special formalities (s54(2) LPA 1925) - Periodic tenancy can arise automatically where a tenant at will starts paying rent calculated at a periodic basis.

Answer 219

 A contractual authorization by the owner to do something on the owner’s land that would otherwise constitute as a trespass  Personal right

Answer 220

- Bare Licence - Contractual Licence - Licence coupled with an interest - Licence coupled with an estoppel

Answer 221

1. A lease gives rise to an interest in land - a proprietary right which can be enforced against anyone - whereas a licence confers a mere personal right which, in ordinary circumstances, can only be enforced against the person who has granted that right. 2. As a lease is an estate in land, and not a mere personal right, it is, in theory, capable of being transferred to a third party (by an “assignment”) and of passing on the death of the tenant - Whereas a licence, being a mere personal right, cannot, ordinarily, be transferred to a third party. 3. Certain statutes give rights to tenants but not to licensees.

Answer 222

LONDON COLLEGE OF BUSINESS LTD V TAREEM LTD 2018 EWHC 437 - Owners and Occupiers of property should ensure they are clear as to whether the arrangement is a licence or a lease irrespective of the name they use to describe it! Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835 – discusses lease vs Licence PER LORD DENNING IN FACCHINI V BRYSON [1952] 1 TLR 1386: EXCLUSIVE POSSESSION FOR A FIXED TERM AT A RENT WILL NORMALLY CREATE A TENANCY – UNLESS: ' .... THERE HAD BEEN SOMETHING IN THE CIRCUMSTANCES, SUCH AS A FAMILY, ARRANGEMENT, AN ACT OF FRIENDSHIP OR GENEROSITY, OR SUCH LIKE TO NEGATIVE ANY INTENTION TO CREATE A TENANCY'

Answer 223

1. Certainty of premises (i.e. the premises demised by the lease must be sufficiently defined); 2. Certainty of term (i.e. the duration of the lease must be certain – a lease must commence at a “time certain” and the maximum time limit of the lease must be sufficiently defined); 3. The tenant must have the right to exclusive possession of the premises during the term. 4. And, in order for a landowner to grant a lease / tenancy, the proper formalities (if any) must be observed

Answer 224

GIVES THE TENANT (IN LAW) COMPLETE CONTROL OVER THE PREMISES DEMISED TO HIM – IN PRACTICE THIS CONTROL IS OFTEN SUBJECT TO THE TERMS OF THE LEASE STREET V MOUNTFORD 1985 - House of Lords held whether there was a lease or a licence depended on whether there was Exclusive possession or not, labels are irrelevant - Exclusive possession means that the tenant has complete control over the land specified in the lease. - When attempting to work out if the party has exclusive possession the court will ask : * How the premises were intended to be occupied? * How did the parties to the lease/licence agreement conduct themselves in reality when the premises were occupied? NO E.P = NO LEASE!!!!!

Answer 225

Stribling v Wickham (1989) - the nature and extent of accommodation - the number of sharers - the relationship between the sharers - the intended mode of occupation - the actual mode of occupation - the course of negotiations

Answer 226

- Sham clauses negate exclusive possession and are false clauses regarding provision of services, retention of keys, introduction of 3rd parties - Some landlords deliberately get tenants to sign different agreements at different times to create the illusion of no unity of title – not always a sham but needs analysis. - Key: substance of the agreement not its form

Answer 227

 If there is more than one occupier, then it needs to be established if they are joint occupiers under one joint lease or individual leases or licences Do all the occupiers take their interest under a single lease – are they Joint Tenants? - To be JT’s need all 3 major hallmarks of a lease and the 4 unities 4 Unities are: o Time o Title o Interest o Possession If have 3 hallmarks and 4 unities then parties take interest as joint tenants under one lease.

Answer 228

It was held that the four agreements were independent of each other and did not confer on any one occupant the right to exclusive possession of the whole. In these circumstances, the agreements constituted licences and not leases. What is more, where the agreements were entered into at different times (i.e. there was no “unity of time” so as to create a legal estate) and the remaining occupiers could not collectively exclude a new occupier nominated by the owner, then there would be no exclusive possession and no joint tenancy had been created.

Answer 229

In the Antionades case, the couple signed separate agreements, each described as a ‘licence’. Each ‘licence’ purported to reserve to the ‘landlord’ the right to introduce a third party into the flat - The question was: ‘Was the arrangement a licence or a tenancy?’ - The House of Lords decided that, on the facts, the right of the landlord to introduce a third person in to the flat was a ‘sham’ – a ‘pretence’ that was never intended to be acted upon. The flat was simply too small. It had one bedroom in which there was a double bed. As this right was never intended to be acted upon, the couple had exclusive possession of the flat as against the landlord – and were tenants.

Answer 230

certain situations can only give rise to licences because, in the nature of those circumstances, the parties only ever intended that there should be a licence Examples: - ‘Lodgers’ – Markou v De Silvesca, - ‘Service Occupiers’ - ‘Purchasers’ (allowed into possession before completion)

Answer 231

‘The personal lease’ – not binding on third parties – a lease as between the landlord and the tenant but a licence as between the tenant and third parties See also: Kay –v- Lambeth LBC [2006] 2 WLR 570 Clearly, you cannot grant what you do not have and, as Quadrant had no title, it could not grant a legal estate. However, per Lord Hoffman: ' …. it is putting the cart before the horse to say that whether the agreement is a lease depends upon whether it creates a proprietary interest '. The landlord / tenant relationship arises out of the contractual agreement between the parties and any inability to create a legal estate does not prevent the creation of a lease. What was granted in Quadrant’s case was something that might be described as “a personal lease”.

Answer 232

For tenants: - Rent Act 1977 - Housing Acts of 1988 and 1996 - S21(5) HA 1988 stops landlords from obtaining a court order for possession until 6 months after the commencement of an Assured Shorthold Tenancy - Landlord and Tenant Act 1954 - The Private Tenancies (2022) Act - Renters (Reform) Bill proposes large scale change

Answer 233

For licensees: - Limited - Protection from Eviction Act 1977 S591) : 28 days notice of eviction - Notice to quit only terminates periodic tenancies/ licences. If it’s a contractual licence is terminated unlawfully then damages can be sought under s27 Housing Act 1988.

Answer 234

https://www.gov.uk/government/publications/covid-19-and-renting-guidance-for-landlords-tenants-and-local-authorities/coronavirus-covid-19-guidance-for-landlords-and-tenants

Answer 235

A Bill to make provision changing the law about rented homes, including provision abolishing fixed term assured tenancies and assured shorthold tenancies; imposing obligations on landlords and others in relation to rented homes and temporary and supported accommodation; and for connected purposes.

Answer 236

form of proprietary security interest for the advancement of a loan – the purpose of a loan is often to finance the purchase of a home

Answer 237

Mortgager – Borrower Mortgagee – Lender (Bank, Building Society etc) – they acquire a proprietary right over the land (if the borrower decides to sell the property, the mortgage needs to be extinguished otherwise the purchaser will be bound by the mortgagee’s interest)

Answer 238

The money to finance the purchase of the home comes mainly from borrowing the money from a bank or building society. The money is then repaid back to the mortgagee with interest, but it is repaid over a prolonged period of time. The mortgagee secures the loan with the creation of a mortgage over the property and the mortgage (also known as a legal charge) operates to secure the amounts with interest that has been borrowed – they don’t obtain a share in the property (if the value of the house was to increase, the mortgagee doesn’t derive any benefit from this)

Answer 239

- worldwide banking crisis in 2008 - Covid 19

Answer 240

1. Acquisition mortgage 2. Non-acquisition mortgage/2nd Mortgage

Answer 241

1. Legal Mortgage Under LPA 1925 there were two methods for the creation of mortgages: a. A demise for a term of years absolute, subject to a provision for cessor on redemption. (creation of long lease) ss. 85 (freehold) 86 (leasehold) LPA 1925 b. A charge by deed expressed to be by way of legal mortgage. s.87 LPA 1925 S.23(1)(a) LRA 2002 – Mortgage of registered land can only be created by registered charge. S.52 LPA 1925 – mortgage must be created by deed 2. Equitable mortgage - where the formalities to create a legal mortgage have not been completed. - where the asset being mortgaged is only an equitable interest

Answer 242

- Legal right to redeem - the mortgagor has right to redeem (i.e. pay off) the mortgage on the date specified in the mortgage contract - Equitable right to redeem - right to redeem beyond the date fixed by the contract. “once a mortgage, always a mortgage” - Thornborough v Baker (1675)

Answer 243

- The right to redeem (pay back) at common law is usually 1 to 6 months after the date of the Deed. - Equitable right to redeem - the mortgagor has the right to redeem the mortgage at any time after the legal date to redeem has passed simply by paying the principal debt, interest and costs

Answer 244

wider rights that a mortgagor has under the mortgage. There should be “no clogs or fetters on the equity of redemption”. “No clogs or fetters on the equitable right to redeem” - Clauses in a mortgage that can constitute a clog on the equitable right to redeem – * Restricting the right to redeem * Options to purchase * Collateral advantages * Unconscionable terms and unreasonable interest rates

Answer 245

“equity will not permit any device or contrivance being part of the mortgage transaction or contemporaneous with it to prevent or impede redemption. A mortgage cannot be made irredeemable.”

Answer 246

Samuel v Jarrah Timber and Wood Paving Corp ltd [1904] AC 323 such clauses are void and contrary to the principles of equity and the nature of the mortgage.

Answer 247

- Provided that the terms of the collateral advantage are not unconscionable or do not in fact restrict the right to redeem, they will be valid.

Answer 248

Multiservice Bookbinding Ltd v Marsden [1979] Ch 84 – a term will be unconscionable (and hence unenforceable) where it is in substance objectionable and has been imposed by one party on the other in a morally reprehensible manner.

Answer 249

- Consumer Credit Acts 1974 and 2006 – gives protection to second mortgagors and other loans. - Financial Services and Markets Act 2000 – Provides protection to mortgages entered into after 31st October 2004. Covers first mortgages of residential property. Consumer must be treated fairly and not subject to excessive or hidden charges.

Answer 250

1. Right to sue on the covenant 2. Right to Possession 3. Power of Sale 4. Right to appoint receiver 5. Right of foreclosure

Answer 251

 This applies where there the mortgagor has more than one mortgage. The law lays down rules as to who is first in the queue to recover outstanding sums: 1. are the mortgages legal or equitable? 2. Is the title to land registered or unregistered? 3. When were the mortgages registered?

Answer 252

Evidence of undue influence or pressure put on the mortgagor by the mortgagee.

Answer 253

The relationship of the parties is one where one party is assumed to be more powerful than the other and they could easily take advantage of this position to put pressure on the other side in negotiations.

Answer 254

- UI covers situations wherever there is abuse as well as exploitation of trust and confidence, reliance or dependency reposed in another; - Arises whatever the relationship; - Trust and confidence can be either proven or in some cases assumed. - Burden of proof shifts to other party where trust and confidence has been deposed in them - No necessity to prove manifest disadvantage in Actual UI; there is a necessity with Presumed UI

Answer 255

- Lending institution should take steps to ensure that the claimant receives legal advice. Claimant to be advised to use alternative solicitor to partner. Doesn’t have to. - Lending institution to provide advising solicitor with all relevant financial information - Lender must inform solicitor of any concerns it has over genuineness of the potentially vulnerable party’s consent or understanding. - Lender to receive written confirmation form the solicitor that all steps have been followed and that appropriate advice was given. - If solicitor signs to this effect, lender is provided with written certificate from advising solicitor that all steps have been complied with

Answer 256

“For future transactions - that is those taking place after Etridge – the practical steps indicated by the House in Etridge will give the mortgagee the security they have bargained for and will essentially reduce the risk of a mortgage being set aside for UI to a minority of cases – cases which will only arise because of the mortgagee’s failure to follow the simple guidelines.” M. Dixon

Answer 257

 An informal way of acquiring an estate in land – not just ‘squatter’s rights’ but also boundary disputes.  An area of law where there is a cross over between property law, human rights and criminal law.  An area of law which also highlights tensions between productive land usage, whilst not undermining land registration.  The meaning of adverse possession hasn’t changed over time, but the way a claim is established has

Answer 258

1. A claimant must be in possession of the land: a. must in factual possession of the land –and possession must be exclusive b. must have intention to possess the land See: Heaney v Kirkby [2015] UKUT 178 which confirms Powell v McFarlane (1979) 38 P & CR 452. 2. Possession must be ‘adverse’. 3. The adverse possession must be for the prescribed time period.

Answer 259

The claimant must be in control of the land they are seeking to claim through adverse possession. Powell v McFarlane (1979) 38 P & CR 452. Per Slade J: ‘Factual possession signifies an appropriate degree of physical control The most straightforward way that a claimant can establish that they are in factual possession is if they have enclosed the land in some way – e.g. by fencing around it. Seddon v Smith (1877) per Cockburn C.J - Whilst desirable fencing/ enclosure of the land is not an essential indicator of factual possession as demonstrated in: - Pilford v Greenmanor Ltd [2012] EWCA Civ 756 To be in factual possession of the land, the claimant must be have exclusive possession of the land i.e. must be depriving the title owner of use.

Answer 260

The court will look for evidence of the claimant’s intention to possess the land. This is often demonstrated through conduct - Buckinghamshire County Council v Moran [1990]. Intention may be more implicit in cases where there is a genuine boundary dispute where a claimant genuinely believes that they are entitled to the land. - Lodge v Wakefield City Council [1995] 38 EG 136 - Hughes v Cook (1994) The Independent 21 March 1994.

Answer 261

 No statutory definition of ‘adverse’  It is now interpreted as the claimant must be acting as a trespasser i.e. the claimant must not have permission to be there. Buckinghamshire CC v Moran [1990] Ch 623 per Slade LJ

Answer 262

* The Limitation Act 1980 Sch 1 para 5 addresses oral tenancies and states that as long as the tenant continues to pay rent, the lease continues to renew itself. However, if the tenant were to not pay rent the clock would run against the landlord from the date that the first period ended. * The potential problems with oral periodic tenancies are evidenced in the case of Mitchell v Watkinson [2013] EWHC 2266 Ch

Answer 263

Acquiescence leaves the true owner vulnerable to adverse possession - Zarb v Parry [2011] EWCA Civ 1306

Answer 264

 The prescribed time period depends on whether adverse possession was before or after the Land Registration Act 2002.  Also, if post LRA 2002, it depends on whether the land is registered or unregistered. o Pre Land Registration Act 2002 – 12 years under the Limitation Act 1980 s.15 o Post Land Registration Act 2002 - 10 years if land is registered

Answer 265

Where there are successive squatters on a piece of land, for example the first squatter leaves his interest in the land to pass under will or intestacy – their individual periods of occupation can be added together to establish a claim for adverse possession. The successor however must move in immediately and remain in possession for the remainder of the necessary period. How can a true title owner prevent an occupant from remaining in possession for the prescribed time - period? 1. Retake possession of the land – without resorting to (threats of) violence! (Criminal Law Act 1977 s.6) 2. Squatter leaves voluntarily 3. Squatter provides the true owner with acknowledgement of title o Edginton v Clark [1964] 1 QB 367 o Ofulue v Bossert [2009] 1 AC 990

Answer 266

The Limitation Act 1980 (LA) regulated adverse possession before the Land Registration Act 2002 was enacted and still regulates adverse possession of unregistered land even post the LRA 2002. The Limitation Act dictates that the claimant must be in adverse possession for 12 years. During these 12 years occupation must be continuous. The idea behind having a limitation period was to ensure that landowners do not ‘go to sleep’ on their claimsIf the paper owner does not bring an action to recover possession within 12 years they lose the right to bring proceedings (s.15 LA) If all the elements of a claim are established the title owner not only loses the right to sue he also loses title to the land in question (s.17 LA) Importantly the Limitation Act 1980 allows an extension of the necessary time period where the dispossessed (true title) owner is: - Subject to a disability - Where there are beneficiaries with life interests who are not yet in possession ( s.15(2))

Answer 267

Just like with unregistered land , before the LRA 2002 adverse possession of registered land was dealt with by the Limitation Act 1980. Just like with unregistered land, if all elements of a claim were established and the occupant had been in possession for the requisite 12 years the title owner lost his right to recover the land (s.15 LA). The difference was s. 75 LRA 1925 which states that: in the case of registered land the owner’s title was not automatically extinguished at the end of 12 years occupation (as the register would need to be changed to reflect this). At the end of the prescribed period the true owner would hold the estate on trust for the squatter who could then apply for registration in place of the dispossessed owner (s.75(2) LRA1925). Until this happened the squatter had an overriding interest as per the Land Registration Act 1925 s. 70 1 (f)

Answer 268

1. Adverse possession undermined registered title- registration of title provided no protection from ‘land theft’ 2. Rules were based on an unregistered system of title – inappropriate in a system which encouraged land registration 3. Difficulty in justifying adverse possession in registered land- one of the reasons that adverse possession may be considered to be in public interest is because it simplifies investigation of title however this obviously does not apply to registered land.

Answer 269

Limitation Act 1980 no longer applies to registered land, thereby drawing a distinction between adverse possession in registered and unregistered land. Unregistered land – The old rules under the Limitation Act 1980 continue to apply to unregistered land.

Answer 270

Registered land is now dealt with under the LRA 2002 Sch 6. para 1 (1) states that an application to change the register can only be made if someone has been in occupation for a minimum of ten years.

Answer 271

- Disabilities – cannot apply for a change of registered proprietor if the ‘true owner’, the registered proprietor is mentally ill and so cannot understand the implications of proceedings or act to object. - Trusts - where there are beneficiaries with a life interest in possession. - Death of registered proprietor - The registered proprietor died and the estate was being administered - Bankruptcy - The registered proprietor has gone bankrupt and their estate is being administered by the trustee in bankruptcy. - A company is being wound up.

Answer 272

 If the person in adverse possession does apply for registration of title after 10 years, the registered proprietor is notified, therefore made aware (if they are not already) of the situation and given the opportunity to object to this change.  If the registered proprietor objects – application for AP is usually rejected.  Much harder to claim AP now

Answer 273

Where the land in question is registered it does not matter how long the squatter has been in occupation – they have no rights over the land unless they make a successful application to be registered as the proprietor. This means that, the registered proprietor cannot lose title with no knowledge of the occupation – or against his will. Martin Dixon calls this the ‘emasculation’ of adverse possession’ - Adverse possession only likely to be successful when land genuinely is not in use - Also supports the ideal that all land becomes registered

Answer 274

Pre 2003 system of adverse possession was incompatible with human rights- European Convention on Human Rights 1950 Protocol 1 Art.1 (ratified into English law under the HRA 1998). - see Beaulane Properties Ltd v Palmer [2005]4 All ER 461 – « pre 2003 case law caused hardship to the registered proprietor, and gives unwarranted windfalls to underserving land thieves» Particularly regarding unregistered land where occupation for the prescribed time automatically entitles the adverse possessor to title – potential breach of Art 1 – right to enjoy property. AP deprived property without compensation. - J.A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

Answer 275

Sch.6 of the LRA 2002 Para 1: The applicant may apply if he has been in adverse possession of the land for the prescribed time ending on the date of application. The title owner is informed of this claim. Anyone with any legal rights over the property are also informed, for e.g. the bank if the property is subject to a mortgage

Answer 276

The applicant can still sometimes be registered even despite a counter notice from the registered proprietor, but only if one of 3 conditions is met: 1. The circumstances are such that equitable estoppel operates. 2. There is a reasonable mistake as to the boundary between plots: Sch 6 para 5 (4)c o Hopkins v Beacon [2011] EWHC (Ch) o Zarb v Parry [2011] EWCA Civ 1306 o IAM Group PLC v Chowdrey [2012] EWCA Civ 505 3. The applicant for some other reason is entitled to the land ( Sch 6 para 5(3) : where the adverse possessor does have some right in the land – for e.g. they are entitled under intestacy or under a will.

Answer 277

- The register proprietor does not dispute the claim, they do not serve a counter notice. - The registered proprietor actually consents to the alteration. - A counter notice is served but the squatter can establish the 3 conditions on the previous slide. - The squatter remained in occupation for 2 years after the first application was rejected

Answer 278

- The claimant becomes successor in title to the registered proprietor- this means that if the registered proprietor had absolute title to the land, the person successfully claiming adverse possession now has absolute title. - The successful claimant takes subject to the same interests over the estate i.e. if there any covenants, easements over the land he will still be bound by these. - However, if there any charges over the land the new owner is not subject to these i.e. if the land is subject to a mortgage he will not be liable

Answer 279

Best v Chief Land Registrar [2015] EWCA Civ 17 - The squatter in question’s occupation of the premises amounted to a criminal offence under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.144. This provision was intended to stop protesters occupying properties – not aimed at AP.

Answer 280

What is registered is not ‘land’ per se, but rather an ESTATE in land. This means that several estates can be registered regarding one particular parcel of land. There are 4 classes of interest: - Registered interests - Registered dispositions - Interests which may override a registered disposition - Minor interests

Answer 281

Allows the purchaser to very quickly and easily see: - Who owns the land - Whether the parcel of land has any rights over other land - Whether any people/land have rights over the land that they are purchasing Each individual register has a unique title number and is split into 3 parts ; the property register, the proprietorship register and the charges register Information regarding land registration is held at the land registry Significantly entry on the register is NO GUARANTEE of the right itself, its merely intended to make the purchaser AWARE of the existence of the right

Answer 282

1. Substantive registration: With substantive registration comes a state backed guarantee of title (subject to rectification) 2. Protection of burdens: The burden of Minor interests must be protected by registration (although this is no guarantee of the right itself- its effect is merely to bring the existence of the right to the attention of a potential purchaser). 3. If rights aren't protected by registration they may still be protected if the person entitled to the right is in actual occupation of the land- see sch3, para 3 2002 Act 4. The register cannot be an absolute mirror image of the state of the land as some overriding interests still subsist after the LRA 2002. These interests are not on the register but still bind a purchaser.

Answer 283

The system is based on 3 principles: - The Mirror Principle - The Curtain Principle - The Insurance Principle Remember the system is designed to simplify conveyancing. In registered land the transfer is effectual and complete only when the transferee is recorded in the Land Register as the new proprietor.

Answer 284

This means the register is intended to reflect accurately all the facts material to a given title. A purchaser is not concerned with the past history of title, nor is he required to carry out the sort of inquiries and inspections that may be expected in unregistered land; the doctrine of notice has no application - EXCEPTION: Overriding Interests (see later)

Answer 285

Trusts are kept off the title in order to simplify the transfer of legal estate. - Idea that interest held under a trust should remain hidden behind a curtain (s.78, 2002 Act) - The idea is that purchasers should not preoccupy with themselves with the nature and extent to interests behind the trust, rather he or she should ensure that such interests are overreached by paying money to the trustees (at least 2 in number)

Answer 286

The title is guaranteed by the state and is indefeasible without compensation. - Separate registers are created for each registrable estate in a parcel of land. With substantive registration comes a state backed guarantee of title (subject to rectification) - The state guarantees the accuracy of the register. This means that if that land registry make a mistake which prejudicially effects the registered proprietor they would be able to claim an indemnity (compensation) for this mistake (see sch 8 of the LRA (2002))

Answer 287

A registered title comprises an area of land in respect of which a person is the registered owner. Each title is subdivided into a property register, a proprietorship register and a charges register.

Answer 288

Originally the only interests capable of substantive registration were the fee simple absolute in possession and the term of years absolute of which more than 21 years remained unexpired. Now Under the LRA 2002: - Fee Simple - Leases with over 7 years left to run - Expressly created easements where the servient land has registered title - Expressly created profits

Answer 289

Registered disposition take effect subject to overriding interests and as these do not appear on the register purchaser needs to inspect the land and make enquiries. Ask the Q: Does a third party interest in land override or require protection on the register? These are hazards for potential purchasers!!!!

Answer 290

- S70(1)(a) easements and profits, including equitable easements. - S70(1) (f) rights acquired or in the process of being acquired under the limitation acts S70(1)(g) - rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed. Most litigated category of overriding interest. The person claiming an overriding interest had to prove that: - He had a right subsisting with reference to land - He was in actual occupation or in receipt of rents and profits - No inquiry had been made of him concerning his interest. S70(1)(k) - leases granted for a term not exceeding 21 years - Again this area was reformed by the 2002 Act. - Third party rights which need to be protected by entry on the register. Supposed to be the main manner in which interests are protected. It includes all interests which are neither registrable nor overriding - 2 such interests: - Comprising interests that in unregistered land would be registrable under the LCA which bind a purchaser if protected by entry on the register - Comprising interest of beneficiaries under trusts of land and strict settlements which are capable of being overreached.

Answer 291

Scheme generally that equitable interest are either registrable or over reachable and that legal interests will bind a purchaser either because they are registered or because they are overriding. - Problem interests in registered land may fall into one class and sometimes into another; in particular where someone with an interest is in actual occupation, he may either protect his interest by entry on the register or rely on his occupation as entitling him to an overriding interest.

Answer 292

- Came into force 13 October 2003. - Fundamental objective of the new act is that the register should be a complete and accurate reflection of the state of the title of the land at any given time so that it is possible to investigate title to land online, with the absolute minimum of additional enquiries and inspections - One of the major features of the LRA is a system of electronic conveyancing. Key change here is that it is a move from a system of registration of title to one where the fact of registration itself gives a person title to the land. - Registration of title is now compulsory when any of the trigger events occurs Trigger events: - Grant of a lease for more than seven years - Transfer of an existing lease with more than seven years to run - Sale of fee simple

Answer 293

* The need to create the legal environment in which it was possible to conduct conveyancing in electronic form and which reflected the possibilities that electronic conveyancing could offer; * The unsatisfactory nature of the legislation that governs land registration * The need to create principles that reflected the fact that registered land was different from unregistered land and rested on different principles. The fundamental objective was “the register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land on line with the absolute minimum of additional enquiries and inspections

Answer 294

- Changes to the nature and scope of overriding interests in registered land - Substantial changes to the law of adverse possession for registered land - System of electronic conveyancing - Expansion of the situations in which registration of land is compulsory

Answer 295

- Formerly called overriding interests - Now separation of interests that override into 2 categories: 1. A broad category of interests which override on first registration of title ( Schedule 1) including leases of up to and including seven years , the property rights of people in occupation, easements and profits 2. A shorter list of interests which override on a later disposition of land which is already registered including again leases of up to and including seven years, the property rights of people in occupation, easements and profits but with the exceptions re rights of occupiers where the interests of those in actual occupation are not readily discoverable. S71(b) imposes a duty for the person applying for registration of a disposition to disclose information about any rights of which he is aware might fall within the scope of schedule 3 and thus override

Answer 296

To strengthen the idea of the register as a mirror of all rights in the registered land, under Schedule 3 the rights of a person in actual occupation will not override a purchaser where either: - Enquiries have been made of the rights holder and he has failed to disclose the right in circumstances where he could reasonably be expected to disclose it; or - The right holder’s occupation is not obvious on a reasonable inspection of the land, and the person potentially bound did not have actual occupation of the interest at the time of the disposition. - A person who did not know they had a right cannot be expected to disclose under Schedule 3.

Answer 297

Notices are now the appropriate way of protecting interests that are intended to endure changes in the ownership of land which carries the burden of such interests. Restrictions prevent the registration of a disposition that does not comply with the terms of restriction

Answer 298

- Sch 4 allows for the alteration of the register- including rectification of the register. - Rectification of the register: this is where a mistake which prejudicially effects the title of the registered proprietor is corrected - Where the register is rectified an indemnity can be claimed. No indemnity is available for an alteration

Answer 299

Compulsory registration is triggered by an increased list of events. Under the LRA 1925 registration of title was compulsory on: - Conveyance on sale of a fee simple - Grant of a lease for more than 21 years, or assignment of a lease with more than 21 years to run LRA 1997 made the following compulsory: - A deed of gift - An assent executed by personal representatives - A first legal mortgage where the mortgagee took possession of the title deeds to the property Under the LRA 2002 two more situations have been added: - A grant of a lease for more than 7 years - Transfer of leases with more than 7 years to run.

Answer 300

 This is encouraged and governed by Section 3. Since the whole country has now become an area of compulsory registration, voluntary registration is now not only possible in all cases but is encouraged by reduced fees. 5 types of legal estate may be registered with their own titles: - Freehold - Legal lease with over 7 years to run - Rent charge - Franchise - Profit a prendre in gross

Answer 301

incorporates a draft Bill to achieve its proposals: 1. Reducing fraud 2. Mines and minerals 3. Adverse possession 4. Registration of easements 5. Clarifying the powers of the First-tier Tribunal (Property Chamber)

Answer 302

- There is no central register - Buyers will have to look at all the documentation available e.g. Deeds of Conveyance, Mortgage Deeds etc. This is known as ‘Investigation of title’ - The buyer used to have to look back at least 60 years and the seller had to provide all this documentation - Sec 23 Law of Property Act 1969 –only need to check back 15 years from the ‘good root of title’

Answer 303

- A document which is at least 15 years old which deals with both the legal and equitable interests (commonly a Deed of Conveyance/Transfer) - All the documentation from the ‘root’ document to present day must then be produced to the buyer so title can be investigated - However, note section 45 LPA ’25 – when can go ‘behind the root’ - Buyer will be checking not only that the seller can sell the property but also there are no breaks in the chain of ownership and for any third party interests affecting the land e.g. mortgages, easements - Effective method of registration of these 3rd party interests?

Answer 304

1. Legal Estates: * Sec 1 (1) LPA ‘25 – Freehold and Leasehold 2. Legal Interests: * Sec 1 (2) LPA ‘25 – there are 5 legal interests * Legal estates/interests= Binding in rem - binding on the whole world and so no need to protect 3. Equitable interests: * Sec 1 (3) LPA ‘25 – examples include life interests, contracts to buy land and interests arising under a trust * Equitable interests = Binding in personam – need protecting to bind third parties

Answer 305

Look at 2 sets of rules: 1. Land Charges: * Land Charges Act 1972 * If such an interest is registered as a land charge it will put a buyer on notice and so they will take subject to it 2. Bona Fide purchaser rule: * ‘Equity’s Darling’ - Binding upon everyone except the Bona Fide Purchaser for value of the legal estate without notice

Answer 306

- Governed by Land Charges Act 1972 - If such an interest is registered as a Land Charge then it protects the person with the benefit of this interest as it puts the Buyer on notice i. If the interest is a land charge – against who or what is it registered? ii. What interests are land charges? iii. Effect of registration as a land charge? iv. Effect when not registered as a land charge?

Answer 307

i. If the interest is a land charge – against who or what is it registered? Registered at the Central Land Charges Register in Plymouth – against the estate owner (not the land itself) ii. What interests are land charges? There are 6 different classes: - Class A - Statutory charges – rare - Class B - Statutory charges – rare - Class C - 4 subclasses (created on or after 1 January ‘26): o C1 = Puisne mortgage (usually 2nd legal mortgage not protected by deposit of title deeds) o C2 = Limited owner’s charge – not applicable nowadays o C3 = General equitable charge o C4 = Estate contract – e.g. contract to convey a legal estate, right of pre-emption - Class D - divided into 3 subclasses o D1 = Inland Revenue Charge o D2 = Restrictive Covenants - if created on or after 1 January 1926 o D3 = Equitable Easements - because no valid. Deed on creation OR could only grant an equitable interest - Class E = Annuities - rare - Class F = Spouse’s right of occupation iii. Effect of registration as a land charge? Sec 198 (1) LPA ‘25: It will be deemed actual notice of the matter Problems can occur if register against incorrect spelling of estate owner’s name for example NB: Register against the estate owner not the land itself and against all estate owners in the chain of title iv. Effect when not registered as a land charge? Depends upon the type of Land Charge: - Classes A, B, C1, C2, C3 and F: o Void against any purchaser (of either a legal or equitable interest) for value o Example: If A has a puisne mortgage (C1 legal mortgage) but does not register as a land charge and B has an equitable mortgage over the property - B will take free of A’s interest - Classes C4, D1, D2 and D3 and E: o Void against a purchaser of the legal estate for money or money’s worth o Midland Bank v Green [1981] AC 513

Answer 308

1. What is the rule? * Legal interests - binding upon the world * Equitable interests - binding against all persons EXCEPT THE BONA FIDE PURCHASER FOR VALUE OF THE LEGAL ESTATE WITHOUT NOTICE IE - ‘Equity’s Darling’ 2. What does this rule mean? * Bona fide = acts in good faith * Purchaser for value = pays money for the property * Of the legal estate = Buyer of the freehold or leasehold title * Without notice = If has notice of an equitable interest would be subject to it

Answer 309

1) Actual Notice: * Purchaser knows about it himself 2) Constructive Notice: * Purchaser would find out about the interest if i) checked the Deeds to the property and inspected the property - rule in Hunt v Luck [1902] 1 Ch 428 * Caunce v Caunce [1969] 1 WLR 286 * Kingsnorth Trust v Tizard [1986] 1 WLR 783 3) Imputed Notice: * If the purchaser’s solicitor or agent was aware of the equitable interest then it is deemed the purchaser himself knows about it * Jared v Clements [1903] 1 Ch 428 * Note: A purchaser of an equitable interest cannot rely upon this rule as they are not a purchaser of the legal estate

Answer 310

Investigation of title: 1. Do Land Charge search against all estate owners (at least 15 years but as far back as you can) 2. Check the title deeds thoroughly (from the Root to present day) 3. Inspect the land for any interests not registrable as Land Charges 4. Do a Local Search Completion nowadays: A. All areas of England & Wales now subject to compulsory registration B. Apply for first registration within 2 months of completion