Land Law Flashcards
Goodman v Gallant [1986] 2 WLR 236
[U]pon a severance, each takes an equal aliquot share according to the number of joint tenants.
Carr v Isard [2006] EWHC 2095
Severance of a joint tenancy cannot be effected by will.
The right of survivorship takes precedence over any testamentary dispositions made by joint tenants.
a will purporting to dispose of an undivided share in jointly owned property does not of itself effect a severance
Gore and Snell v Carpenter (1990) 60 P & CR 456
Was not agreement
Hunter v Babbage (1995) 69 P & CR 548
Was agreement
Burgess v Rawnsley [1975] Ch 429
- Beneficial joint tenancy severed by oral agreement by one joint tenant to sell her share to the other joint tenant (even though the agreement was not specifically enforceable).
- Browne LJ: Whether or not there … [is] an oral agreement between … [the joint tenants is], of course, a question of fact.
- Course of Dealing’ or Mutual Conduct
- [A] mere verbal notice by one party to another clearly cannot operate as severance.(See: McDowell v Hirschfield Lipson & Rumney [1992] 2 FLR 126)
Mutual Agreement
Severance by (express or implied) mutual agreement between joint tenants.
An Act Which Operates Upon His/Her Own Share
Sale
Mortgage (First National Bank v Hegarty [1984] 1 All ER 139)
Gift
Lease
Bankruptcy (involuntary severance) - see: Re Pavlou (A Bankrupt) [1993] 1 WLR 1046; Re Dennis (A Bankrupt) [1996] Ch 80
Williams v Hensman (1861) 1 J & H 546
Such other act or thing
an act of any one of the persons interested operating upon his own share may create a severance as to that share Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common…
In Re 88, Berkeley Road, N.W. 9 [1971] Ch 648
I feel bound to conclude that the notice of severance [sent by registered letter], even though it never reached the plaintiff, was in fact sufficiently served for the purposes of section 36(2) of the [LPA 1925].
Kinch and Another v Bullard and Another [1999] 1 WLR 423
even if the addressee does not actually receive it.
Law regarding notice and posting letter
LPA 1925, s 196
Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the … person to be served …
Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the … person to be served and if that letter is not returned by the postal operator undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
Law regarding severance
LPA 1925, s 36(2)
Provided that, where a legal estate … is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity.
The Effects of Severance:
Converts an equitable joint tenancy into a tenancy in common
Excludes the future operation of survivorship
Separates off an equal aliquot share for severing joint tenants
Jones v Kernott [2011] UKSC 53
Does not rebut the presumption
joint legal ownership of the family home by a married or cohabiting couple, the mere fact of unequal contribution to purchase price will not normally be sufficient to rebut the presumption of a joint tenancy in equity
Exceptions to the Presumption of a Joint Tenancy
Unequal contributions to purchase price
Joint mortgagees
Commercial partnerships
Stack v Dowden [2007] 2 WLR 831
[I]t should be assumed that equity follows the law and that the beneficial interests reflect the legal interests in the property … in the domestic consumer context, a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved.
The burden will … be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon.
General Presumption:
presumption of a joint tenancy - ‘equity follows the law’
Words of Severance:
Words in the purchase deed indicating that the co-owners have distinct shares - tenancy in common.
Lewen v Dodd (1595) Cro Eliz 443: ‘equally’
Fisher v Wigg (1700) 1 Salk 391: ‘to be divided between’
Payne v Webb (1874) LR 19 Eq 26: ‘in equal shares’
Express Declaration
Co-owners’ declaration that property is to be held as joint tenancy or tenancy in common.
Equitable Title:
Joint tenancy Or Tenancy in common
Legal Title:
Only joint tenancy
LPA 1925, s 1(6) A legal estate is not capable of subsisting or of being created in an undivided share in land.
- NB also LPA 1925, s 36(2)
purpose of severance
LPA 1925, s 36(2):
No severance of a joint tenancy of a legal estate, so as to create a tenancy in common in land, shall be permissible.
Davis v Smith [2011] EWCA Civ 1603
Survivorship is an essential ingredient of a joint tenancy
Harris and Another v Goddard and Others [1983] 1 WLR 1203
- Severance is … the process of separating off the share of a joint tenant, so that co-ownership will continue but the right of survivorship will no longer apply. The parties will hold separate shares as tenants in common.
- Its special feature is the right of survivorship, whereby the right to the whole of the property accrues automatically to the surviving joint tenants or joint tenant on the death of any joint one joint.
- Notice in Writing- a desire to sever must evince an intention to bring about the wanted result immediately.
A.G. Securities Appellant v Vaughan and Others Respondents [1988] 2 WLR 689
4 unties
Hammersmith & Fulham LBC v Monk [1992] 1 AC 478
In property law, a transfer of land to two or more persons jointly operates so as to make them, vis-à-vis the outside world, one single owner.
Possession:
all co-owners must be equally entitled to possession of every part of the co-owned land.
Interest:
all co-owners’ interests must be the same in nature, extent and duration.e.g. if legal - all freehold or all leasehold (LPA 1925, s 1(1))
Title:
all co-owners must have acquired their title by the same means
all by transfer or grant; or all by way of adverse possession
Time
the interests of all co-owners should vest at the same time.
Burton v Camden LBC [2000] 2 AC 399
Lord Millett:[E]ach joint tenant is … the owner of the whole
Each] tenant in common … has a separate and distinct interest of his own.
Tenancy in common
LPA 1925, s 34(2)
Tenants in common retain (undivided) shares of entitlement
Only unity of possession is required
No right of survivorship between tenants in common
Joint tenancy:
LPA 1925, s 36(1)
Legal title and equitable title can be held by way of joint tenancy. Maximum of four joint tenants of the legal title - LPA 1925, s 34(2)
Law Commission, Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Com No 271, 2001):
We consider that … the remaining unregistered land should be phased out as quickly as possible and that all land in England and Wales should be registered. (para 2.9)
Law of Property Act 1925 (LPA 1925
s 1(1) The only estates in land which are capable of subsisting or of being conveyed or created at
law are -
(a) An estate in fee simple absolute in possession
(freehold)
(b) A term of years absolute (leasehold)
Martin Dixon, Modern Land Law (11th edn, Routledge 2018) 101.
To describe a parcel of land as ‘unregistered’ means one thing only:
that title to the land … is established from old-fashioned title deeds
and is not to be found on the register of titles’.
Sen v Headley [1991] Ch 425, Nourse LJ
Title deeds are … the essential indicia of title to unregistered land.
Law of Property Act 1969, s 23
Good root of title- 15 years
legal interest
LPA 1925, s 1(2)
The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are -
(a) An easement
(b) A rentcharge
(c) A charge by way of legal mortgage
(d) … any other similar charge on land [created by statute]
(e) Rights of entry
The mortgage must be protected by the deposit of the title deeds
LPA 1925, s 85(1) ‘… a first mortgagee shall have the … right to possession of documents …’ (s 86(1), s 87(1)).
equitable interest
LPA 1925, s 1(3)
All other estates, interests, and charges in or over land take effect as equitable interests.
‘Equity’s Darling’:
bona fide purchaser of a legal estate for value without notice.
Pilcher v Rawlins (1872) LR 7 Ch App 259
… an absolute, unqualified, unanswerable defence …’
Midland Bank Trust Co. Ltd v Green [1981] AC 513
‘… purchaser for value …’
‘Value’ includes money, money’s worth and other forms of consideration.
‘… of a legal estate …’
Freehold or leasehold (or a legal mortgage).
The Equitable Doctrine of Notice
Actual notice
Constructive notice
Imputed notice
Actual notice
LPA 1925, s 199(1):
A purchaser shall not be prejudicially affected by notice of –
(ii) any … instrument or matter or any fact or thing unless –
(a) it is within his own knowledge …
Constructive Notice
LPA 1925, s 199(1):
A purchaser shall not be prejudicially affected by notice of –
(ii) Any instrument or matter or any fact or thing unless –
(a) it … would have come to his knowledge if such inquiries and inspections had been made as ought reasonably have been made by him …
Hunt v Luck [1901] 1 Ch 45
person … either from his knowing something which should have put him on further inquiry or from his willfully abstaining from enquiry,
if he does not choose to do this, then whatever title he acquires … will be subject to [those] rights …
Kingsnorth Finance Co Ltd v Tizard and another [1986] 1 WLR 783
Finlay J: What is such an inspection as ought reasonably to be made must, I think, depend on all the circumstances
Imputed Notice
LPA 1925, s 199(1)
A purchaser shall not be prejudicially affected by notice of –
(ii) any … instrument or matter or any fact or thing unless –
(b) … it has come to the knowledge of his counsel … or of his solicitor or other agent … or would have come to the knowledge of his solicitor or agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.
Land Charges
Scheme introduced by the Land Charges Act 1925 (LCA 1925).
LCA 1925 consolidated and replaced by the Land Charges Act
1972 (LCA 1972).
Classes of Land Charge - LCA 1972, s 2
Class A: charges created by a person applying under statute - s 2(2)
Class B: charges created by statute - s 2(3)
Class C - s 2(4):
Class C(i): a puisne mortgage - ‘a legal mortgage which is not
protected by the deposit of documents …’
Class C(ii): a limited owner’s charge
Class C(iii): a general equitable charge
Class C(iv): an estate contract - ‘a contract … to convey or create a legal estate, including a contract conferring … a valid option to purchase, a right of pre emption or any other like right.’
Class D - s 2(5):
Class D(i): an Inland Revenue charge
Class D(ii): a restrictive covenant - entered into on or after 1 January 1926.
Class D(iii): an equitable easement - created or arising on or after 1 January 1926.Class F - s 2(7)
a charge affecting any land by virtue of the [Part IV of the Family Law Act 1996]
Family Law Act 1996 - ‘Home Rights’:
s 30 (1) This section applies if -
(a) one spouse [A] is entitled to occupy a dwelling-house …
(b) the other spouse [B] is not so entitled
s 30(2) … [B] has the following rights [‘home rights’]-
(a) if in occupation, a right not to be evicted or excluded from the dwelling-house … except with the leave of the court …
requirement to REG
LCA 1972, s 3(1)
A land charge shall be registered in the name of the estate owner whose estate is intended to be affected
Diligent Finance Co. Ltd v Alleyne and Another (1972) 23 P & CR 346
Omission of middle name (Erskine Owen Alleyne) rendered a Class F land charge unenforceable against the mortgagee.
The Effect of Registration:
LPA 1925, s 198(1) The registration of any instrument … [under the Land Charges Act 1972] shall be deemed to constitute actual notice … to all persons for all purposes.
Effect of Non-Registration:
LCA 1972, ss 4(1)-(8):
Classes A, B, C(i)-(iii) and F - void against a purchaser for value.
Classes C(iv) and D(i)-(iii) - void against a purchaser for ‘money or money’s worth’.
The Issue of Adequacy:
Midland Bank Trust Co. Ltd v Green [1981] AC 513
- Failure to register an estate contract (Class C(iv)).
- The courts will not enquire into the adequacy of the consideration
Law regarding a certificate
LCA 1972, s 10(4)
The certificate, according to its tenor, shall be conclusive …
Ministry of Housing v Sharp [1970] 2 QB 223
Validly registered land charge(s) not shown on the search
certificate - action in negligence against the Land Registrar
Compensation Provision:
LPA 1969, s 25(1):
Where a purchaser of any estate or interest … has suffered loss by reason that the estate or interest is affected by a registered land charge … [prior to the root of title] … the purchaser shall be entitled to compensation for the loss.
Intro
- Key parties
a. Howard- Original Covenantee
b. Kurt- Original Covenantor
c. Heller- Covenantee
d. William- Covenantor - Purpose of advice
a. Does the benefit pass
b. Does the burden pass
c. By law or equity - Key legal issues
a. the method of enforcement regarding the fencing.
b. If burden passes to William can he discharge the burden
c. If the benefit passes to the Heller can they gain remedies from the court.
Title
- freehold land as defined in section 1(1A) of LPA
- land is absolute under 9(1a) and 9(2) LRA 2002 as it is clearly stated in the proprietorship register.
- use of section 23-24 LRA 2002 both Howard and Kurt have the right to sell the land.
Content
- Define covenant
a. A covenant is a type of promise, usually contained in a deed, made between a covenantor and a covenantee’
b. ‘[C]ovenants are often fundamental to the enjoyment of property.’ - Type of covenant
a. Negative convents are one that prohibited the action of the covenantor as seen in the land register
b. Positive covenant are ones that require effort or money to complete an action
Enforceability
P & A Swift Investments v Combined English Stores Group [1989] AC 632
Lord Oliver: The relationship between the [covenantor] … and a [covenantee] is, of course, contractual.
LPA 1925, s 56: (1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument.
contracts (Rights of third parties) act 1999, s1 which state , a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract.
Cannot pass in law
a. Austerberry where lord Lindley state that was not prepared to say any covenants is to run with the land, this was affirmed in later case of Rhone v Stephens.
- negative substance
a. Haywood which given the principle that for transfer in equity require the negative substance, this was again affirmed by Rhone v Stephens as was seen that equity will enforce negative covenants against freehold land
Tulk v Moxhay
4 points negative substance benefited must be owned by the covenantee. 3. An intention for the Burden. 4. notice of the covenants.
- benefited must be owned by the covenantee.
a. Covenant is touch and concern - Roger v hosegood which established that covenant must affect the mode of occupation and value of the land. This was affirmed in P&A swift investments
Meet the benefit land must have retained the property at the date of the creation of the covenants - London Country Council v Allen -
- An intention for the Burden.
a. S79(1) LPA where states shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself his successors in title and the persons deriving title under him or them
- notice of the covenants.
a. S32 LRA 2002 these covenants were entered on the land register. Therefore, under s29(2) they are protected and binding on the land
- Easement of fencing
a. valid easement as established in Crow v Wood
b. covenant of fencing and obligation can be held enforceability by the means of a easement
c. However, very limited due to the case of sugar where justice smith refused to accept the wording of the covenant as an easement, thereby mean the Heller could try to enforce the burden of fence but is possible to fail.
Discharge
- Termination of Covenants
- Express release (compensation).
- Implied waiver/discharge.
a. Acquiescence in breach over a number of years.
b. Hepworth v Pickles [1900] 1 Ch 108
c. Shaw v Applegate [1977] 1 WLR 970 - Section 84(1)(b) - Consent:
(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction … have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or
Benefit in law
to touch and concerns the land
2. Intention
- Successor must be that original covenantee must held a legal estate
- Title is derived from or under the original covenantee
- to touch and concerns the land
a. P&A Swift which gives the principle which was establish that for a touch and concerns affects the nature, quality, mode of user or value if the land.
- Intention
a. Smith and Snipes Hall Farm LD v River Douglas Catchment Board where was seen that be shown that it was the intention of the parties that the benefit … should run with the land
- Successor must be that original covenantee must held a legal estate
Principle of Webb v Russell - they must be a privity of the estate between the parties
- Title is derived from or under the original covenantee
a. Smith and Snipes hall Farm LD which state can be enforced at the suit of the covenantee and her successors in title and the persons deriving title under her or them.
- Assignment
a. Express assignment (transfer) of the benefit to the covenantee’s successor (must be in writing: LPA 1925, s 136(1)).
b. Miles v Easter [1933] Ch 611
- Annexation
a. Express words of annexation’ are used in the covenant which indicate that the benefit should run with the land.
b. Rogers v Hosegood [1900] 2 Ch 388- something which inhered in or was annexed to the land bought.
c. Crest Nicholson Residential (South) Ltd v McAllister- need to be expressed
a. Statutory Annexation
b. LPA 1925, s 78(1):
c. 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…
d. Federated Homes Ltd. v Mill Lodge Properties Ltd [1980] 1 WLR 594
Bevan: ‘The effect of the Federated Homes decision and subsequent case law [in particular Crest Nicholson Residential (South) Ltd v McAllister [2004] 1 WLR 2409] can be condensed into four qualifications or requirements for the operation of s 78:
(1) The covenant must have been granted on or after 1 January 1926 …
(2) The covenant must ‘touch and concern’ the covenantee’s land …
(3) There must be no contrary intention excluding the operation of the provision …
(4) The land to be benefited must be identified or be capable of identification …
- Damages
a. Against the original covenantor: common law.
b. Against the original covenantor’s successor/s in title:
c. Senior Courts Act 1981, s 50.
- Injunction
a. Jaggard v Sawyer [1995] 1 WLR 269
b. Mandatory injunction.
3. Wakeham v Wood (1982) 43 P & CR 40
4. Covenant: ‘[N]o building which shall be erected on the said land … shall be of sufficient height to obstruct the present view of the sea and beach from the property.’
a. Negative/prohibitory injunction.
Jaggard v Sawyer [1995] 1 WLR 269
c. Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287
i. Damages in Lieu of an Injunction
(1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to defendant to grant an injunction:-
