Land Law Revision

Question 1

A landowner is allowed rights in airspace only to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it. Thus, a landowner cannot object to the passage of aircraft over his land during normal flight.

Question 2

The minimum period of ownership that a seller of land with unregistered title must demonstrate is 15 years

Question 3

The traditional method of proving ownership of unregistered land is by the production of documents. When land is unregistered, the seller’s title must begin with a document called the ‘root of title’

Question 4

Possessory title is the class of title which may be awarded by HMLR if the application for title is based on factual possession of the land rather than documentary evidence.

Question 5

A buyer may take free of a beneficiary’s interest under a trust through a legal process called overreaching. The purchase money is paid to a minimum of two trustees and this payment transfers the interest of the beneficiary from the land to the money.

Question 6

An estate contract includes contracts to purchase land, options to purchase land, and the like. Such contracts and options give the buyer an equitable interest in the property.

Question 7

The right of occupation enjoyed by a non-owning spouse or civil partner is not capable of being an overriding interest. Thus, that spouse or civil partner will register their home right as a notice on the registered proprietor’s register of title.

Question 8

If there is a fixed term tenancy without a break clause, neither party may bring the tenancy to an end unilaterally before the term has expired. However, the parties can mutually agree to bring the tenancy to an end. If the parties agree the tenant will give up possession to the landlord, this is known as surrender. The transfer to accomplish surrender must be done by deed.

Question 9

Generally, when a landowner sells part of their land, if they want to reserve any rights sold, they must do so explicitly

Question 10

Where property is owned as tenants in common, there will be a standard form of restriction (Form A) that appears in the Proprietorship Register. The Proprietorship Register indicates the current legal owners of the property.

Question 11

To obtain an easement by prescription, a party must show that they have used the benefit unchallenged for over 20 years, and used the benefit as of right, meaning they did not ask for permission and did not pay for the use of the benefit.

Question 12

A positive covenant is one that requires a positive act to comply. Generally, positive covenants bind only the original contracting parties. However, if the original covenantor obtains an indemnity covenant from the next buyer, liability under the covenant will continue.

Question 13

Overreaching is a legal process whereby a buyer may take free of a beneficiary’s interest by paying purchase money to two or more trustees. Courts have held that where a mortgage advance is paid to two registered proprietors, payment has been made to two trustees and the interest of the behind-the-scenes beneficiaries overreached.

Question 14

A building scheme may allow a buyer of benefitted land to enforce a restrictive covenant in equity

Question 15

Generally, positive covenants bind only the original contracting parties.

Question 16

Under a lease made before 1 January 1996, the original landlord and the original tenant remain liable to each other under the lease for the entire lease period – even after the lease is assigned – due to the doctrine of privity of contract. If a tenant assigns the lease and the new tenant breaches a covenant in the lease, the landlord can seek to recover from the new tenant or the original tenant.

Question 17

No title guarantee is typically given when a seller has no knowledge of the property at all, for example, a mortgagee in possession

Question 18

When does title pass with respect to a sale of unregistered land?

Answer 18

On completion of the sale (that is, when the price is paid, and a document of transfer is handed to the buyer’s solicitor)

Question 19

Land charge categories

Answer 19

C(i) = puisine mortgage

C(iv) = estate contract

D(ii) = restrictive covenants

D(iii) = easements

F = rights of non-owning spouses/civil partners

Question 20

Which of the following does an applicant for adverse possession of unregistered land have to show?

Answer 20

1. They have actual physical possession of land
2. Their possession is exclusive to them
3. The possession is without the permission of the landowner

Question 21

An application must be made to HMLR for first registration of a title within 2 months of the date of a triggering event

Question 22

What estates can be substantively registered (that is, be registered with their own title number and register) at HMLR?

Answer 22

Estates in land – freeholds and leasehold

Rentcharges

Franchises

Question 23

A party with an interest in unregistered land can register a caution against first registration

Question 24

What interests override first registration (that is, which of the following rights will continue to exist after unregistered land is registered) even if the interest does not appear on the affected register of title?

Answer 24

A legal lease granted for 7 years or less

A legal easement or profit à prendre

An interest belonging to a person in actual occupation

Question 25

To obtain rights in registered land through adverse possession, the possessor must have been in possession for at least 10 years

Question 26

If a joint tenant of a beneficial interest is declared bankrupt, that severs the joint tenancy

Question 27

If a joint tenant of a beneficial interest sells their interest in the land, the joint tenancy is severed

Question 28

How does section 14 of the Trusts of Land & Appointment of Trustees Act 1996 help co-owners resolve differences relating to disposal of their property?

Answer 28

It enables one co-owner to apply to court for an order relating to a trustee’s duties to sell, obtain consent, or declare the nature of a person’s interest

Question 29

If two parties did not make a declaration of trust, the court will consider all the circumstances in determining each party’s share and is not limited to the circumstances surrounding the purchase and it will apportion shares as it deems is fair

Question 30

Reversionary lease

Answer 30

A lease which takes effect at some point in the future

Question 31

If a commercial tenant fails to pay the agreed rent, the landlord has a statutory right to take control of the tenant’s goods and sell them and the right applies even if the lease does not expressly include this right

Question 32

Forfeiture is available as a remedy for non-payment of rent only if it is expressly included in the terms of the lease

Question 33

A residential lease may not include a provision requiring the lessee to provide an authorised guarantee agreement on assignment

Question 34

As a general rule, a legal easement must be created by deed and they must either be for a fixed period or an unlimited one

Question 35

An easement gained by prescription is treated as a legal interest

Question 36

How is an equitable mortgage created?

Answer 36

Where the charge states that it is to take effect in equity only

Where the mortgagor owns an equitable interest only and does not subsequently acquire the legal estate

Where there is a contract to create a legal mortgage that is defective in some way

Question 37

Foreclosure of a mortgage

Answer 37

The right to foreclose does not arise until after the contractual date for repayment of the mortgage has passed

Foreclosure extinguishes the mortgagor’s right to redeem the property

Foreclosure makes the mortgagee the owner of the property

Question 38

If the parties cannot agree on the terms of a new lease following service of a section 26 notice, the court can set the terms of the new lease

Question 39

Legal easements on unregistered land bind the world and do not require any further steps for protection. Subsequent purchasers are bound by the legal interests whether or not the purchaser has notice of the legal interest.

Question 40

The benefit of a covenant will be enforceable by a covenantee’s successors in title as long as:
(1) the covenant touches and concerns the land of the covenantee;
(2) the covenant was intended to run with the legal estate held by the covenantee;
(3) at the time the covenant was made, the covenantee held the legal estate in the land to be benefitted; and;
(4) the assignee of the original covenantee now holds the legal estate

A tenant holds merely a leasehold interest, which is insufficient to enforce the benefit of a covenant

Question 41

How do you register a second legal mortgage on unregistered land?

Answer 41

The bank should register a puisne mortgage on the Land Charges Register

Question 42

How do you register a second legal mortgage on registered land?

Answer 42

The bank should register a second charge on the charges register of the title

Question 43

A prescriptive right of use arises by a use as of right for more than 20 years regularly. Regularly seeking permission or making payments does not mean as of right.

Question 44

Surrender of a head lease has no major effect on a subtenant. If a head lease is ended by surrender, the sublease will not come to an end. The subtenant will become the tenant of the head landlord on the terms of the sublease and will have to pay rent due under the sublease to the head landlord.

Question 45

If an individual has three mortgages and stops paying the lender with the second charge, the second mortgage lender may take possession proceedings without notifying or allowing the first lender to do so first. However, the second lender must discharge the first lender’s mortgage out of the sale proceeds before paying off its own mortgage. If there are any sale proceeds left once the first lender and the second lender have been paid off, this will be paid to the third

Question 46

Even if someone is the sole surviving joint tenant of the legal estate, the buyer still must ensure that they take free of the deceased’s beneficial interest. A buyer may take free of a beneficiary’s interest under a trust through overreaching by paying the purchase money to a minimum of two trustees

Question 47

Legal easement are created by deed

Question 48

The benefit of a legal easement must appear as a notice on the Property Register of the dominant tenement (that is, the land that is benefitted by the easement). The Property Register indicates whether the title is freehold or leasehold, the address of the property, and details of any rights which benefit the land.

Question 49

A right which burdens a title appears on the Charges Register.

Question 50

The Proprietorship Register indicates the current legal owners of the property.

Question 51

The power of sale arises when the contractual date to redeem the mortgage has passed. However, the power of sale becomes exercisable only if one or more of the following is satisfied:
(1) interest payments are more than 2 months in arrears;
(2) there has been a written request for repayment of the capital and 3 months have passed without payment; or
(3) there is a breach of another term of the mortgage.

Question 52

To be enforceable against a subsequent buyer of land, equitable rights and interests, such as a restrictive covenant, must be protected by registration as land charges. If a land charge is not registered, it is void against a purchaser of a legal estate for money or money’s worth.

Question 53

A landowner does not own wild animals on his land, but he does have the right to hunt them

Question 54

A restriction is used to prevent any dealing with the land otherwise than in accordance with the terms of that restriction. Registration of an estate contract must be carried out to protect the buyer and to put the world on notice of the existence of the agreement for sale.

Question 55

The proprietorship register denotes the class of title and who holds the legal estate.

Question 56

If parties unequal contributions to the purchase price is reflected in the declaration, the parties hold the beneficial interest as tenants in common rather than as joint tenants.

Question 57

In the registered system, the period of adverse possession is a minimum of 10 years. After 10 years, the squatter may apply for registration of title. The applicant will have to show that they have actual physical possession of the land; that possession is exclusive to the applicant; and that possession of the land is without the permission of the landowner.

Question 58

Some leases do have break clauses BUT they are not implied

Question 59

A legal mortgagee has the power to sell a mortgaged property without the need to apply to a court, provided the contractual date set to redeem the mortgage has passed and other conditions, such as interest payments being more than two months in arrears, are satisfied.

Question 60

Under the Land Registration Act 2002, a grant of a lease with more than seven years left to run at the date of the transaction will trigger a compulsory first registration of title.

Question 61

To make sure an interest is protected, the easement must be registered on the title register of both owners property’s (specifically, the charges register and the property register)

Question 62

An estate contract land charge is the appropriate form of protection for a contract to purchase a piece of land. Registration as a land charge is the method to put the world on notice that the contract has been entered into when the title is unregistered

Question 63

If co-owners cannot agree how or when to dispose of a property, a trustee or any other person with an interest in property subject to a trust (which includes co-owners) can apply to the courts for an order relating to the trustee’s duties, including an order to sell.

Question 64

Forfeiture is the right of a landlord to re-enter the premises and bring the lease to an end early due to default by the tenant. It is available for breaches such as the tenant’s non-payment of rent or breach of a covenant to repair. It is not implied into a lease on a landlord’s behalf. The lease must contain an express provision for forfeiture.

Question 65

Legal interests bind a buyer irrespective of notice.

Question 66

A legal easement is created by deed

Question 67

A profit a prendre is the right to take something from land belonging to another (for example, minerals, timber, or fish). A profit a prendre in gross exists independently of land (that is, it is exercised for the personal benefit of the owner) and can be substantively registered at HMLR. If title to the land is registered, a profit a prendre must be registered to be enforceable against a buyer of the land.

Question 68

A Form A restriction indicates the beneficial interest was held as tenants in common and not as joint tenants and thus survivorship does not apply. The surviving co-owner must ensure that a second trustee is appointed to act with them to overreach the deceased’s beneficial interest.

Question 69

A landlord can require an outgoing tenant to enter into an Authorised Guarantee Agreement in which the outgoing tenant will act as guarantor for his immediate successor in title. In such cases, the landlord can sue the tenant-guarantor for the current tenant’s breach as well.

Question 70

If property is owned in the name of one party but there is someone else living at the property who has an interest in the property (such as a spouse who has contributed to the purchase price), courts are willing to allow the non-owning occupier to stay in occupation of the property, thus defeating the mortgagee’s ability to repossess.

Question 71

Under the benefit and burden rule, a person cannot enjoy a benefit without accepting a burden that goes with it. For this rule to apply, the benefit and the burden must be relevant to each other. Where an obligation is unenforceable against a successor in title, the successor in title may be denied use of the benefit if it does not also accept the burden.

For example, where the positive covenant to pay for maintenance of the road is unenforceable against the non-paying owner, a successor in title, the non-paying landowner is not accepting the burden of paying the fee, may be prevented from enjoying the benefit of using the road.