Land Law Flashcards
Real Property
All property rights relating to land are real property (except leases - see personal property)
Fixtures are included within land, whereas chattels are personal property. Whether an object is a fixture or a chattel depends on the two stage test:
- The Degree of Annexation
- The purpose of the Annexation.
If there is damage caused when removing an item they will be classed as a fixture.
Rights in land can be divided into estates and interests.
Personal Property
All types of property (including leases) other than land.
How to acquire and transfer legal and equitable estates (including formalities)
Legal Estates: to create or transfer an existing legal estate, a deed is required (LPA 1925 s52(1)), unless an exception applies (e.g. short term leases that meet the requirements).
The deed must be:
> Clear on its face it is intended to be a deed
> Validly executed (signed, witnesses (by 1 witness) and delivered).
Equitable Estates: If the estate does not appear in s1(1) and s1(2) LPA then it is not legal and is equitable in nature.
Estate Contracts: Once a contract for the sale of a freehold has been made, equity views the purchaser as owning an equitable interest during this interval (the estate contract) between exchange and completion.
How to acquire and dispose of legal interests in land (including Formalities)
Legal interests
-To create or transfer an existing legal interest, a deed is required unless an exemption applies.
-The deed must be:
1. Clear on its face it is intended to be a deed
2. Validly executed (signed, witnessed(by one witness) and delivered)
Equitable interests
- Equitable interests in land can arise and should comply with the following formalities:
1. By express trust (signed, written document by the donor).
2. By contract to convey or create a legal interest with contract complying with s2 LP (MP) A 1989 and the claimant has clean hands, the remedy of specific performance will be granted.
3. Granting of a legal estate or interest which is void for lack of correct formalities - valid contract, complying with s2 LP (MP) A 1989 and the claimant has clean hands, the remedy of specific performance will be granted.
4. By grant of an estate or interest by a person who only owns an equitable interest - must comply with s53(1) LPA - ie signed written doc by donor
5. Granting of an interest that only exists in equity - must comply with s53(1)(b) LPA - Signed written doc by donor)
6. By constructive or proprietary estoppel - must comply with s53(1)(b) - ie signed written doc by donor.
7. Implied trusts - there are no formalities for the creation of a resulting or constructive trust, s53(2) LPA 1925.
Methods to protect and enforce 3rd party interests
Registered Land: interest must be protected by entry on the Land Register in order to bind, unless the interest falls within the list of overriding interests.
Unregistered Land: legal interests bind automatically. Other interests will either be covered by the Land Charges Act 1972 or be binding where the buyer has notice of them.
Different ways in which land can be held
Land may be held as:
- Freehold (Fee simple in absolute possession)
- Leasehold (Term of years absolute)
Title to Land: Registration of title to land: Estates that can be substantially registered.
The following estates and interests over unregistered land may be registered voluntarily by the owners at any time:
- Freehold
- Leasehold (that has more than 7 years unexpired)
- Leases of any length where the right to possession is discontinuous
- Leases of any length granted to take effect in possession more than 3 months after the date of grant.
- A rent charge that is either perpetual or for a term of which more than 7 years are unexpired.
- A ‘profit a prendre’ is gross that is either perpetual or a term of which more than 7 years is unexpired.
- A franchise that is either perpetual or for a term of which more than 7 years are unexpired.
Trigger events for converting unregistered land to registered title…
- A transfer of an unregistered estate in land.
- A transfer of unregistered leasehold with more than 7 years to run at the time of transfer.
- A grant of a new legal leasehold in land for a term of more than 7 years or for a term of any length to take effect in possession after a period of 3 months from the date of the grant.
- A first legal mortgage of an unregistered freehold or leasehold (provided the lease has more than 7 yrs unexpired).
The buyer must apply for first registration within two months of the event. Failure to do so will result in an equitable interest or mortgage until registration has been completed.
Once completed, title depends on what is entered on the register at HMLR.
How to protect interests…
Interests affecting a registered estate are protected by either a notice or restriction:
Notice - A notice will appear in the charges register. It can be used to protect easements/profits, equitable leases, restrictive covenants, home rights and estate contracts but not a trust for land.
Restriction - A restriction appears in the proprietorship register. It is used to protect a trust for land.
What is overreaching?
A beneficial interest under a trust for land can be overreached if the buyer pays the money to a minimum of two trustees or a trust corporation. The buyer takes free of such interests.
Interests that override registration and interests that need to be protected on the register
Overriding interests: Are interests which override the register which a purchaser of registered land must conduct further enquiries to discover.
Unregistered interests which override on First Registration (Sch 1 Land Registration Act 2002):
Para 1. Legal leases <7 in duration
Para 2. An interest belonging to a person in actual occupation.
Para 3. Legal easement or profit
Para 4. Local land charge.
Unregistered interests which override a registered disposition (Sch 3 LRA 2002)
Para 1. Legal leases of <7 in duration
Para 2. An interest belonging to a person in actual occupation
Para 3. Legal easement or profit
Para 4. A local land charge.
An interest of a person in actual occupation:
This is a proprietary interest over the property together with signs of obvious actual occupation of the property (i.e. personal presence not necessary but it should have a degree of permanence and continuity and not be temporary).
Interests that need to be protected on the register:
Equitable interests and home rights are protected by:
- Entry of restriction in the proprietorship register where it is a trust for land
- Entry of a notice in the charges register where it is an easement/profit, equitable lease, restrictive covenant, home right or estate contract.
Core principals of unregistered title to land: Role of title deeds
A seller of unregistered land must prove title by a conveyance by deed or legal mortgage which is:
- At least 15 years old
- Shows ownership of the entire legal and equitable interest in the land
- Contains a description of the land
- Does not cast any doubt on the title.
A buyer of unregistered land must investigate title and inspect the land to identify any third party interests.
Legal estates and rights (apart from puisne mortgages which are protected by a land charge) bind the world.
Equitable interests (apart from trusts for land) are protected by registration of a land charge or the doctrine of notice.
Land Charge
The equitable interests that can be protected by a land charge are:
- c(i) - a puisne mortgage
-c(iv) - an estate contract
d(ii) - a restrictive covenant
d(iii) - an equitable easement
F - A home right.
A land charge is not registered against the land but against the estate owner and registration is deemed actual notice of the interest from the date of registration and will bind any buyer whether or not they have knowledge of it. If the land charge is not registered then it is void against any buyer for money or money’s worth.
Continuing Role of Doctrine of Notice
The doctrine of notice applies to:
- Over reachable interests that have not been successfully overreached.
- Restrictive covenants entered into between freeholders of land before 1 Jan 1926.
- Equitable easements created before 1 Jan 1926.
- Interests arising by estoppel.
Buyer is bound by the above equitable interests unless they are a bona fide purchaser for value of a legal estate or legal interest without notice (actual, imputed, or constructive) of the equitable interest.
Legal formalities for transfer of freehold estate - deed and registration
Deed - complying with requirements:
1. Deed must be clear it is intended as a deed - labelled as a deed
2. Deed must be validly executed - signed in presence of witness
3. Deed must be delivered - dating doc.
Standard transfer deed used TR1
Deed must be registered at land registry - COMPULSORY - not legally recognised as owner until reg taken place!
This notified land registry of transaction and new owner to update records accordingly.
Sale of freehold process
1.Exchange of contracts - not necessary but usual. In writing + contains all terms + signed by both parties = valid land contract.
2.Completion of the deed
3. Registration at LR - legal title passes!
