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Land Law > Land Law Statutes and Principles > Flashcards

Land Law Statutes and Principles Flashcards

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1
Q

FSAP

A

Fee Simple Absolute in Possession

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2
Q

Law of Property (miscellaneous Provisions) Act 1989, s. 2 (1989 Act): Formalities of the Contract

A 
valid land contract s 2 in effect requires:
-Single document (or two identical)
-Containing all the terms
-Signed by both parties 
Then Need to be Registered
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3
Q

Proprietary Estoppel Features

A

1) representation of property rights made to Claimant
2) Reliance by Claimant
3) Detriment suffered by claimant as a result

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4
Q

Fixed Term

A

Lease is a predefined and certain period

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5
Q

Periodic Tenancy

A

yearly, Monthly, weekly

Continues until ended by notice

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6
Q

Leases Certainty

A

Leases must be certain. they must have a start date and an end date. See cases:
Harvey v Pratt
Prudential Assurance v London Residuary Body
Berrisford V Mexfield

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7
Q

Legal Lease

A

Deed (unregistered land): s 52(1) LPA 1925
Registration (registered land): s 27(2) LRA 2002 (over 7 years) (4 (1)(c))
Under 7 years its unregistered overriding interest

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8
Q

Equitable Lease

A

Should be protected by notice on register
Equitable because:
- L only has equitable estate
-Lacks Formalities
-Enters into a valid contract but never given legal lease (Walsh v Lonsdale)

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9
Q

Lease Definition

A

a certain term that grants Exclusive Possession (the right to exclude the world)

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10
Q

License

A

Personal Right that is granted to a single individual that is determinable whenever the grantor see’s fit

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11
Q

Exclusive Possession

A

T’s right to control entry onto the land– right to exclude others/strangers including landlord. If the tenant does not have exclusive possession, they cannot have a lease.

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12
Q

Lodger

A

The occupier is a lodger if the landlord provides attendance or services

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13
Q

Written Terms that Bar exclusive Possession

A

Provision of Services – e.g. cleaning; Huwyler v Ruddy
Moving occupier to another room: Westminster v Clarke
Introducing other occupiers: Antoniades

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14
Q

Multi Occupancy and a Lease

A

Joint Tenancy of the right to EP exists where the following ‘four unities’ exist: AG securities v Vaughn
-Possession - all joint tenants possess equally and together
-Interest - same period/obligations (rent) All derive the same benefit from the property
- Time - acquiring rights at same time from L
-Title - single rather than separate agreement with L
Mikeover v Brady
Stribling v Wickham

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15
Q

Sham/Pretence

A

A term in a lease agreement that is not genuine but is only there in an attempt to create a contractual license rather than a lease.

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16
Q

Forfeiture: Failure to pay

A

Non-payment of rent 212 Common Law Procedures Act 1852: If the Lessee is brought to court and he pays all rent and arrears together with costs; then the proceedings stop.

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17
Q

Forfeiture: Breach of Covenant

A

Other Covenants: s 146 LPA 1925: Lessor must provide Notice of the breach; Time to Remedy the breach; Require the Lessee to make compensation for the breach.
Rugby school v Tannahill
Glass v Kencakes

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18
Q

Legal Mortgage: Unregistered Land

A

LPA 1925, ss. 85(1) and 87 recognized two methods:

  • Long lease (lease by demise); or
  • Charge by deed by way of legal mortgage
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19
Q

Legal Mortgage: Registered land

A
  • Mortgage of registered land can only be by charge (property interest by specialist deed that creates the mortgage) LRA 2002 (s 23(1))
  • And registration is essential to its validity: LRA 2002 ss. 27(2)(f), 93(1)(2)
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20
Q

Equity of Redemption

A

Equity of redemption signifies all the residual right of ownership mortgagor enjoys, including:

  • Right to get the property back in original state on repayment/discharge of debt
  • That which can be sold or use to create a second mortgage
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21
Q

Clogs and Fetter

A

Attempting to inhibit the payment or performance of the Mortgage:

  1. Mortgage terms restricting/postponing mortgagor’s right to redeem
  2. Terms giving mortgagee right to purchase
  3. Terms giving mortgagee Solus Tie
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22
Q

Restricting Postponing right to redeem Mortgage

A

A term in the Mortgage deed which prevents/postpones Mortgagor’s right to repay the debt and end the mortgage.
See Fairclough v Swan Brewery and Knightsbride v Byrne

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23
Q

Term permitting purchase of land by mortgagee

A

An Option to purchase might be regarded as inserting into the mortgage deed something which is incompatible with the nature of mortgage and is an attempt to prevent L getting the property back in its original state and free from mortgagee’s rights
See Jones v Morgan
Samuel v Jarrah Timber
Warnborough v Garmite

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24
Q

Collateral Advantages (Solus Ties)

A 
Mortgagee stipulates for some additional benefit in return for Loan. Solus Tie is an exclusive supply agreement. To be Valid it must end when the Mortgage ends.
Noakes v Rice
Bradley v Carritt
Kreglinger v New Patagonia
Esso v Harper
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25
Q

Protecting Mortgagor: Interest Rates

A

If the interest rate can be shown to be unconscionable not just unreasonable: Equity is concerned
City holdings v Dabrah
Paragon Finance v Nash
Multiservice Bookbinding v Marden

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26
Q

Protecting the Mortgagee: Possession

A

Right to possess is an inherent part of the loan.The Mortgagee wishes to obtain possession as a prelude to Sale. Potential purchasers will be attracted to vacant property, so the Mortgagee must obtain possession.

27
Q

Mortgagor Delaying Possession

A

1) Common Law: Court may allow mortgagor a short time to repay what is owed
Bimringham v Caunt
2) Equity: possession will only be granted if the Mortgagee is seeking possession fairly and for a proper purpose.
Quennel v Maltby
3) s. 36 Administration of Justice Act 1970

28
Q

Section 36 Administration of Justice Act 1970

A

Applies if property comprises (includes/consists) a dwelling house.
1) Discretion: If the Mortgagor is “likely” to be able to repay within a reasonable time than the court may exercise to help the mortgagor.
Cheltenham & Gloucster v Norgan
2) If Mortgagor is in “positive equity” (value of the land is greater than the debt) they may want possession postponed under s 36 to allow them to sell.
National and provincial building society v llyod
3) If Mortgagor is in “negative equity” the court may direct a sale under s 91(2) LPA 1925.
Palk v Mortgage service fund

29
Q

Mortgagee Power of Sale

A

two pre-conditions must be met which act as operative safeguards for the Mortgagor:

1) The Power of Sale has arisen: LPA 1925 s101
- Mortgage by deed
- Mortgage money due – date of redemption passed
- No express provision-precluding sale
2) The Power is exercisable LPA 1925 s103
- Notice for repayment + then 3 months arrears; or 2 months arrears of interest; or other breach

30
Q

Co-Ownership

A

there is a maximum of 4 Legal Owners s 34(2) LPA

31
Q

Trustee

A

Legal Owner managers of the ownership for the benefit of the beneficiaries, the equitable owners.

32
Q

Express Trust

A
  • Formal declaration of a trust in writing by the different parties when Registration occurs
  • Declaration “manifested and proved” in writing signed by person capable of creating trust: LPA 1925, s 53(1)(b)
33
Q

Resulting Trust

A

-Non-legal owner contributes to purchase price. The interest is determined by reference to the amount contributed to purchase price

34
Q

Constructive Trust

A

Equity may regard as unconscionable not to give effect to a common intention that a trust exists even though the formalities required by s 53(1)(b) have not been satisfied
Llyods Bank v Rosset

35
Q

Legal Estate Must be JT

A

Co-owners of a Legal Estate Must be joint tenants, as a legal estate cannot be tenants in common: LPA 1925, ss 1(6); 34(2) & 36(2)

36
Q

Co-Ownership Equitable Estate

A

Either Joint Tenancy or Tenancy in Common:
If express declaration in writing then its conclusive.
If intention not stated there are two presumptions:
1) Equity follows the law
2) Equity prefers a Tenancy in Common
Stack v Dowden: Unless there is a rebutting presumption, Equity will follow the law
Pankhania v Chandegra

37
Q

Co-ownership Severance by Written Notice

A

Statutory: LPA 1925, s 36(2) - Written Notice: To be given by one to the other Joint Tenants
-must ‘give’ notice to the other J/T(s)
-Documents may not be designed to sever, or mention severance, but court may find that it is implied.
Re Drapers Conveyance

38
Q

Co-ownership Severance Registered Post/last place of residence

A

(s 196(4)) - Deemed served unless returned undelivered
By leaving at last place of abode or business in the UK: s 196(3) LPA 1925
Re 88 Berkley Rd
Kinch v Bullard

39
Q

Co-Ownership Severance at Common Law

A

Williams v Hensman (1861)

  • Three categories:
    1. Act on J/T’s own share
    2. J/T’s have mutual agreement to sever JT (turn it into T/C)
    3. Course of dealing by which all J/T’s show they intend to become T/Cs
40
Q

Act by any one of the JTs operating on own share

A

Sale- transfer destroys Unity of Interest
Mortgage of an equitable interest
Declaration of bankruptcy: equitable interest transfers to trustee in bankruptcy

41
Q

A Mutual Agreement to Sever the Joint Tenancy

A

No need to be written (and valid) agreement
But it must be mutual – i.e. agreement by all the JTs in equity
Burgess v Rawnsley

42
Q

Course of dealings and conduct by which all J/T’s intend to become T/C’s

A

-Inferred from conduct such as negotiations towards an agreement to sell that do not result in agreement
Davis v Smith

43
Q

TOLATA (Trusts Of Land and Appointment of Trustee’s Act 1996)

A

-Power to sell – not a duty; power to retain
Beneficial co owners have an equitable interest in land
-Trustees mange the title for benefit of equitable co-owners before sale

44
Q

Disputes Between Trustee’s and Beneficiaries

A

TOLATA: Provides a mechanism with allows the court to resolve disputes between co-owners: ss. 14 & 15
-Trustee has all powers the powers of an absolute owner (s. 6(1)) but
Beneficiaries Have a right to Occupation

45
Q

Application to Court under TOLATA

A

In Application to the court under TOLATA for forcing a sale in a disagreement the court must consider:
-Intention of the creator(s)
Barclay v Barclay
-Purpose for which land it is held
Buchanan - Wallaston
Jones v Challenger
-Welfare of minors - (actual or potential) occupiers
-Interests of secured creditors
1st national bank v Achempong
-Circumstances and wishes of beneficiaries in
possession if of full age

46
Q

Bankruptcy

A

S 335A(1) Insolvency Act 1986 applies instead: TOLATA, s 15(4)

  • The Trustee in Bankruptcy applies under s 335A for sale of home within first year of bankruptcy – court has discretion:
  • Needs and resources of bankrupt’s spouse/partner
  • Needs of children
  • The extent to which spouse/partner contributed towards bankruptcy
47
Q

Four Guidelines for an Easement to Exist

A

Re Ellenborough park:

  1. There must be two pieces of land - dominant (benefited) land and servient (burdened) land
  2. The right must “accommodate” (benefit) the dominant land
  3. The dominant and servient owners must be different people
  4. Right must be able to form the subject matter of a grant (lie in grant)
48
Q

How must The Right Accommodate the Land

A

a sufficient degree of proximity
*-Right must confer benefit on the dominant land, not a purely personal advantage for its owner
Hill v Tipper
Moody v Steggles

49
Q

Intrusiveness of easement

A

Cannot be an easement if use effectively amounts to a claim to possess the servant land. A question of Degree.
-Whether the servient owner retains a reasonable use of his land
Copeland v Greenhalf
Ward v Kirkland
Wright v Mcadam

50
Q

Express Easement

A

Express Grant or Reservation done in Conveyance by deed.

51
Q

4 Methods of Implied Grants

A
  • Necessity
  • Common Intention
  • Wheeldon v Burrows
  • Section 62 LPA 1925
52
Q

Implied Creation: Necessity

A

Necessity exists where land cannot sensibly be used/accessed without the implied easement being claimed. Without the Easement the land would effectively be unusable.
Wong v Beaumont

53
Q

Implied Creation: Common intention

A

Implied because it is necessary to give effect to the common intention of the parties. For the proper use of the land that was envisaged between the two parties an easement is implied by their common intentions.
Stafford v Lee
Wong v Beaumont

54
Q

Implied Creation: Wheeldon v Burrows

A

Applies where owner sells part of his land. The owner of the whole creates quasi easements for his own personal use which become easements when he conveys the land. BUT:
The Right must be Continuous and Apparent AND
Reasonably necessary for enjoyment

55
Q

Implied Creation: s. 62 LPA 1925

A

Capable of turning a license into easement

  • Diversity exists where an owner leases/licenses part of his land and additionally grants occupier a license
  • The license in respect of the land retained may later be turned into an easement by a subsequent conveyance of the land occupied
56
Q

Equities Darling

A 
A
-Bona fide (good faith) purchaser of 
-Legal estate 
-For value; who is 
-Without notice (actual or Constructive)
will not eb bound by an equitable interest
57
Q

Unregistered land 2 stages

A

1) CONTRACT (Writing: s 2 LP (MP) A 1989)

2) CONVEYANCE OF TITLE/COMPLETION: DEEDS s 52 LPA 1925

58
Q

S.2 Land Charges Act 1972

A

Unregistered Land

If a land charge should be registered, but it is not registered, then it will lose priority

59
Q

Over reaching

A

on sale beneficiaries interests shift from the land and attach to the proceeds of its sale:
-Purchaser must pay purchase/capital money: either to (a minimum) of two trustees or to a trust corporation: s 27&(2) LPA 1925

60
Q

Land Registration Act 2002

A

Section 6 & 7:

  • Purchaser buys unregistered title
  • Contract/Completion- Registration
  • Two months to register after the completion of the contract

-Sale of registered land: The Purchaser gets title by registration

61
Q

Person Buying registeres land is subject to

A

S.29 LRA 2002:

  • Registered interests
  • Interests protected on the register either by notice or restriction (minor interests: terminology of LRA 1925)
  • Unregistered interests that override (Sched 3 LRA 2002)
62
Q

Interests that Override

A
  • Beneficial Interests that were informally created in the Property
    - Usually the Interests of a Wife in a home.
  • Short Leases; Under 7 years
  • Equitable Leases
63
Q

Interests of Actual occupiers

A

Overriding interest = (property) interest + actual occupation:
AND Occupation obvious on reasonably careful inspection of the land at the time of the disposition

Land Law (2 decks)

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