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SQE 1 Flashcards > Land Law (Underlying) > Flashcards

Land Law (Underlying) Flashcards

1
Q

What characterises proprietary rights?

A
  • Enforced by an action in rem = Use/Possession can be recovered
  • Capable of being enforced against a third party
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2
Q

What characterises personal rights in land?

A
  • Can only be enforced by a personal action for damages
  • Only binding the original parties - not third parties
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3
Q

What rights are capable of being legal rights?

A
  • Morgage
  • Eastement
  • Right of Entry
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4
Q

What rights can only take effect in equity?

A
  • Restrictive Covenants
  • Interest in trust of land
  • Estate Contracts
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5
Q

What are the requirments of a valid land contract?

For example, the contract at the point of exchange in a freehold transaction

A
  • In writing
  • Contain all the expressly agreed terms
  • Signed by both parties
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6
Q
A
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7
Q

What is required for a legal estate to be transferred?

A

It must be transferred or created by deed per LPA s.25(1) - this must be validly executed and delivered - usually TR1 is used

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8
Q

When does legal title pass on a transfer of unregistered land?

A

At the point of completing the deed.

However, the sale triggers a requirment of first registration within two months otherwise legal title reverts back to the seller.

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9
Q

When does legal title pass on a transfer of registered land?

A

Legal title only passes upon registration

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10
Q

What effect does a land contract have?

A

The courts will recognise an equitable interest in land providing (a) there is a document that complies with LPMPA s.2 (e.g. a contract to transfer legal estate); and (b) the remedy of specific performance is available.

This is a proprietary right that can brind third parties - however, it must be protected. Remedies include damages, specific performance and injunctions.

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11
Q

What is the mirror principle?

A

The land Register should reflect all matters that the property has the benefit and burden of.

The caveat is that overiding interest do not appear and therefore it is not wholly a ‘mirror’

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12
Q

What is the curtain principle?

A

The register records ownership of the legal estate and legal title.

The register is NOT concerned with beneficial and equitable ownership!!

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13
Q

What is the insurance principle?

A

The accuracy of the land register is guaranteed by state. If there is an error, the state will indemnify loss.

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14
Q

What are the two test to determine if an object is a fixture or chattel?

A
  1. Degree of Annextation Test
  2. Purpose of Annexation Test
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15
Q

What is the degree of annexation test when deciding if an object is a fixture or chattel?

A

The more firmly the object is fixed to the land or builfing, the more likely it is a fixture. Even if it is fairly easy to remove.

Does it rest on the land by its own weight (e.g. a chattel) or is it attached, even if easily removable (e.g. fixture)?

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16
Q

What is the purpose of annexation test and when does it apply?

A

The question is whether the annexation was for the more covenient use of the chattel as chattel or to enhance the land or building in some way.

This test takes priority over the degree of annexation test if there is discrepancy.

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17
Q

Is a tapestry tacked to a wall for enjoyment chattel or a fixture?

A

If primaprily tacked for enjoyment, it is chattel.

It may be firmly affixed and still chattel if the purpose of tacking is better enjoyment of the chattel.

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18
Q

Is a stone seat standing on its own weight in the garden forming part of the architecture a fixture or chattel?

A

If chattels are incorporated into the architectural design, they may be fixtures even if not firmly attached due to the purpose test

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19
Q

What is a morgage?

A

A bundle of proprietary rights granted to the lender as security for a loan

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20
Q

What are the requirments for a legal morgage?

A

To be a LEGAL itnerest, it must be created by deed (validly executed and delivered) and registered.

If not registered, it could still take effect as an equitable interest.

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21
Q

When would a grant of a morgage be an equitable morgage?

A

If the borrwer only hold an equitable interest in the land or the morgasge is a defective legal morgage due to lack of compliance with formalities.

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22
Q

What happens if the morgage is repaid in full?

A

The morgage entries at the Land Registry must be cancelled.

They are considered fully discharged when all reference is removed from the charges register.

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23
Q

What is the equitable right of redemption?

A

This is the bundle of rights the borrwer has:

  • The equitable right to redeem the loan
  • Protection from clauses postponing or preventing redemption
  • protection from clauses giving a collateral advanatge to the lender
  • protection from unconsicionable terms
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24
Q

When can a borrower repay a morgage?

A

After the legal date of redemption has passed (due to equitable intervention, this is opposed to only on that date)

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25
Q

What effect does a clause postponing the right to redeem have?

A

The court will not allow a clause that prevents redemption altogether.

They may allow a postponment but only if (a) the borrower gains some benefit and (b) gets back exactly what was morgaged.

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26
Q

What effect does a collateral advantage have when it comes to morgages?

A

If a lender tries to extract additional value, the offending term may be struck out.

A collateral advantage will be struck out if it is…
* Unconscionatble
* A penalty; or
* Repugnant to the equitable rights

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27
Q

What is a solus ties and will it be upheld?

A

The lender makes it a morgage condition that the borrower buys all supplies from the lender (e.g. a pub and brewery)

Generally, these solus ties are upheld (collateral advantage) if they end within the morgage term.

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28
Q

What effect would a high interest rate have on a morgage?

A

Per the equitable right of redemption, courts are able to strike out unconscionable terms.

A high interest rate MIGHT be unconscionable if it is imposed in a ‘morally reprehensible’ manner

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29
Q

Do morgages need to be registered?

A

All morgages over registered land must be registered to be a legal morgage.

Priority between different registered charges depend upon the order on which they are entered (not created)

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30
Q

In what order to equitable morgages rank?

A

Against another equitable mortgagee, equitable morgages rank in order of creation.

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31
Q

Can an equitable morgage be registered?

A

Yes - as a notice on the charges register.

  • If registered, it takes priority over subsequent legal morgages.
  • As between competing equitable morgages, the entry does not affect priority which is determined by creation
  • An equitable morgage not protected will not take priority to a subsequent registrable disposition.
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32
Q

What rights does a lender have in the event of a morgagee default?

A
  • Sue for contractual debt
  • Take possession
  • Sell the property and apply proceeds towards outstanding debt
  • Appoint a receiver to generate income from the property
  • Apply for foreclosure (rare)
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33
Q

When does the lender’s statutory power of sale arise?

A

When the morgage money has become due

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34
Q

When does the power of sale arise in a capital and interest repayment morgage?

A

As soon as one payment is due

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35
Q

Where a morgage is interest-only, when does the power of sale arise?

A

At the legal redemption date which is usually 6 months after the commencment.

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36
Q

What happens if a lender exercises their power of sale before it is exercisable despite the grounds for using it (e.g breach) have occured?

A

The sale to an innocent purchaser is valid but the lender will be liable in damages to the borrower

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37
Q

What is an easement?

A

A proprietary right to use land which belongs to someone else.

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38
Q

What makes an easement a legal easement?

A

It fulfuls the requirments as to duration.

If the easement is not granted for the quivalent of a freehold/leasehold estate (e.g. a right to park until the other facility is compleyed) it can only be equitable

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39
Q

What are the only recognised negative easements at law?

A
  • Right to light
  • Right to air
  • Right of support (e.g dividing wall)
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40
Q

What is a reservation of an easement?

A

C sells or leases part of their land to D, and retains a right over the land sold/leased to D.

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41
Q
A
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42
Q

What are the capability rules of an easement?

A
  1. Does it fulfil the Ellenborough Park requirments?
  2. Is there a disqualifying factor?
  3. Has it been acquired either expressly, impliedly or by prescription?
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43
Q

What is the dominant/servient requrment to be an easement?

A

There must be a dominant tenement (one that benefits from the right) and a servient (one that is burdened)

An easement cannot exist in gross - for example, exercised independently of land.

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44
Q

When is the land sufficiently proximate for it to ‘accomodate’ the dominant tenement for an easement?

A

Normally, the dominant and servient will be adjoining.

However, this need not be the case - for example, two fields with a third field in the middle (connected by a right of way) has been held to be sufficient

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45
Q

Can there be common ownership of the two tenenments for an easement to exist?

A

No.

The dominant and servient must be owned by different people.

Benefits enjoyed over one’s own land are called quasi-easements and only become easements if the land is partitioned.

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46
Q

What does it mean for an easement to lie in grant?

A

The right must be granted by a capable grantor (power to grant) with a clear description and judicially recognised

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47
Q

Can an easement amount to exclusive possession?

Disqualifying Factor

A

No. An easement cannot substantially deprive the owners of legal possession.

  • Where the servient owner cannot use the land at all, there is no easement.
  • Where the servient owner retains some control, apply either the ‘ouster test’ or ‘possession control test’
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48
Q

What is the Batchelor v Marlow Ouster Test?

A

When deciding whether the right substantially deprives the owner of their use of land, the Batchelor test is whether the owner is left with no reasonable use of the land.

For example, the right holder was able to park cars on the land for such a significant amount of time that the land owner had no reasonable use to part during the time the spaces were needed.

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49
Q

What is the Moncrieff Possession and Control Test?

A

When establishing exclusive possession for easement claims, the SCOTTISH court held that the proper test (as opposed to Batchelor) is whether the servient owner retains ultimate possession and control.

This is a much more flexible test favouring the person claiming the easement.

Whilst this is only persuasive, the English Courts have been applying the ‘Batchelor’ test in a ‘moncrieff’ manner - favouring the person claiming the easement

For example, the owner of the parking lot has not been deprived of reasonable use (ouster test) becuase he can do anything they like on the parking area except interfering with the parking (control test)

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50
Q

Can a right be an easement if the exercise by the dominant requires the servient (owner of the land) to spend additional money?

A

No. The right is disqualified because a positive obligation is inconsistent.

For example, a right to supply hot water is nit an easement if it forces the servient to spend money.

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51
Q

Must the servient tenement owner carry out repairs or maintence?

A

No - they do not need to maintain the land to enable the dominant ownerr to enjoy the easement. However, they have to allow the dominant owner onto the servient land to carry out any repairs at the dominant owners expense.

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52
Q

Is it an easement if the owner has to give permission?

A

Express permission is always needed when the right is first used.

However, after the intiial grant, the dominant owner MUST exercise the benefit as of right - no permission.

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53
Q

How can an easement be an express legal easement?

Express Acquisition

A
  • Granted/Reserved forever or for a set time period
  • Created by deed
  • Registered

If this fails (e.g. no registration) it can become equitable if it is (a) in writing; (b) contains all the terms; and (c) is signed by both parties per s.2

If s.2 isn’t complied with > no valid easement

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54
Q

Can an easement for an uncertain term be legal? How can it be equitable?

Express Acquisition

A

An easement for an uncertain term cannot be a legal easement.

It can only be an equitable easement and must be (a) made in writing; and (b) signed by the grantor

If (a)/(b) are not followed, there is no valid easement.

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55
Q

Can an easement be acquired if not granted expressly?

A

Yes, there can be an implied acquisition

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56
Q

What are the four methods of implied easement acquisition?

A
  • Necessity
  • Common Intention
  • Wheeldon v Burrows
  • LPA 1925, s.62
57
Q

When is an easement implied by necessity?

A

Its existence is essential in order that any use of the dominant tenement can be made

The only easement that could be implied by necessity is a right of way to otherwise landlocked land
Without it, the land cannot be accessed by any means. For example, an easement for drainage and electric cannot be implied since they are for enjoyment not use.

58
Q

When is an easement implied by common intention?

A

This is implied where parties sell or lease land to another for a specific and definite intention to use the land for a certain purpose and the easement is necessary for that purpose.

A general intention of use is not sufficient. It must be specific.

For example, a lease was granted for use of a floor as a restaurant. However, ventilation was needed to comply with saftey regulation to open the restaurant. An easement to allow access to the ventilation was implied.

59
Q

Can the rule in Wheeldon v Burrows be used to imply both a grant and reservation of an easement?

A

No. It is not possible for an easment to be impliedly reserved under Wheeldon.

It is only available for an implied grant.

60
Q

When is an easement implied by the rule in Wheeldon v Burrows?

Name the 5 components

A
  • The right would have been claimed as a grant.
  • The right was enjoyed as a quasi-easement before the land was divided
  • The quasi-easement was continuous and apparent
  • The quasi easement is necessary for reasonable enjoyment of the dominant land
  • The quasi-easement must be in use by the common owner at the date of transfer
61
Q

What is the factual situation whereby Wheeldon v Burrows could apply?

A

An owner of land sells/leases part of their land to an owner or tenant.

The new owner/tenant impliedly acquires the easements which A previously exercised over the land it retains

The easement used to be a ‘quasi easement’ since the landowner could not (prior to division) have an easement over their own land

62
Q

What does it mean in Wheeldon v Burrows that the right was in use by the common owner at the date of transfer?

A

The seller or landlord enjoyed the quasi easement at the time of transfer/lease of the dominant land (before division)

63
Q

When is an easement ‘necessary for reasonable use’ under Wheeldon v Burrows?

A

This means the right enhances the land - an easy test to satisfy and very different to the implication by necessity definition.

For example, a right of way over an access road may be necessary if it is more convenient that alternative acces.

64
Q

Can s.62 LPA be used to imply both a grant and reservation of an easement?

A

No. It is only available for a grant.

It cannot be used to impledly reserve.

65
Q

What does LPA s.62 do? What are the two functions?

A

It has two functions..

  • Ordinary Function: When someone buys freehold land or leases land, the buyer/tenant recieves the benefit of all existign easements affecting land; and
  • Upgrading Function: s.62 upgrades informal rights into full legal easements
66
Q

When will s.62 upgrade an informal right?

What are the three requirments for the upgrade effect?

A
  • If there was prior diversity of occupation of the dominant and servient land; or it was continuous an apparent
  • An informal permission or licence was granted to the occupier of the dominant land to use the servient
  • There is a conveyance (transfer by deed or a leagal lease) of the dominant tenenment
67
Q

What is the historical ‘prior diveristy of occupation’ requirment of s.62 mean?

A

There is a landlord and tenant.

The tenant uses the landlords land for their benefit.

Upon re-letting to the same or new tenant (or sold) s.62 can upgrade the formal right

68
Q

Is prior diversity of occupation always needed for s.62 to upgrade an informal right?

A

No. Post P&S Platt (Hotel Case), s.62 can upgrade a quasi-easement if the right was continuous and apparent. In other words, if the land was owned by one person and then divided, s.62 can operatre.

The impact of this is that it can be used in the same circumstances as Wheeldon v Burrows. However, s.62 is easier since it is not necessary to show necessary reasonable use.

However, s.62 requires a conveyance

69
Q

A family owns a hotel and an island.

Hotel guests use boats on a jetty to get to the island.

The family sell the hotel but keep the island

The island was not mentioned in the conveyance

How can the new owner argue that they have ane easment to allow guests to use the island?

A

Under s.62 LPA

There is a continuous and apparent right to use the island that was exercised prior to the sale.

The quasi-easement enjoyed by the family when they owned the hotel can be implied into the transfer deed for the new owners

70
Q

Post P&S Platt, when would you use the rule in Wheeldon v Burrows instead of s.62?

A

s.62 requires a conveyance - a legal lease or transfer deed

Wheeldon can imply an easement into a contract.

Therefore if there is no legal lease or deed, Wheeldon can be used

71
Q

When are express legal easements binding?

A

They are automatically binding on registered and unregistered land (due to their registration)

72
Q

When are implied legal easements binding?

A

They bind registered land as an overiding interest

They bind unregistered land since legal interests bind the world

73
Q

When are equitable easements enforceable and binding? Whether express or implied?

A

They need to be protected

  • In registered land by notice
  • In unregistered land by D(III) Land Charge

A purchaser will not be bound by an unprotected equitbale easement. A volunteer will always be bound.

74
Q

How do you deal with a mixed covenant?

A

If the positive and negative obligations can be seperated, the covenants can be split to create two stand alone covenants.

If the positive and negative obligations cannot be split, the covenant is interpreted as overall positive or restrictive depending on whether it makes the covenantor do something. for example, a covenant not to build without consent cannot be split and since the ‘not to build’ is the main obligation, it is a restrictive covenant with a positive condition attached.

75
Q

Does the burden of a covenant pass to a successor at common law?

A

No.

If the original coventor sells to a successor, at common law, the burden does not pass.

The covenant is unenforceable against the successor at law.

Note, equitable exceptions…..

76
Q

Can the burden of a covenant ever pass to a successor?

A

Yes - if the equitable doctrine of Tulk v Moxhay applies

77
Q

What are the reuirments of Tul v Moxhay for a burden of a covenant to run?

A
  • It must be restrictive
  • It must accomodate the dominant tenement
  • There must be an intention for the burden to run
  • There must be notice of the covenant
78
Q

Can the burden of a positive covenant ever run?

A

No - only common law rules apply to positive covenants and the burden cannot run in law

79
Q

What does it mean for the covenant to accomodate the dominant tenement ?

Burden Running in eqwuity - Tulk

A
  • The covenantee and successor must hold an interest in land.
  • It must touch and concern the land (some direct beneficial impact on the dominant land)
  • There must be sufficient proximity > the dominant and servient must be near to eachother
80
Q

How can intention be shown to satisfy Tulk and the running of the burden in equity?

A

either….

  1. Express intention stating that successors are bound by the covenant; or
  2. Impliedly per s.79 which states that intention is presumed unless a contrary intention is expresssed.
81
Q

For the burden of a covenant to run in equity, there must be notice. What does this mean?

A
  • In registered land, the covenant must have been protected by a notice in the charges register
  • In unregistere dland, the covenant must be protected by a ClassD(II) Land Charge

If not done, a purchaser for value will not be bound, but a donee would.

82
Q

When will the benefit of a covenant pass to a successor of the covantee in equity?

A

It will bass if it can be shown that the covenant…

(a) Touches and Concerns the Dominant Land; and

(b) The benefirt passes by an approved method: (i) annexation; (ii) assignment; or (iii) a building scheme

83
Q

When will the benefit of a covenant be annexed? What does it mean?

A

Annexation means the benefit of the covenant becomes a permanent part of the dominant land.

It occurs in two ways…

(a) Express Annexation - the covenant makes cleart that the intention is benefit of the dominant land rather than personal advantage (e.g. naming the land); or

(b) Statutory Annexation: s.78 LPA results in automatic annexation (for the benefit of the land and thereby successors) unless expressly excluded

84
Q

When is the benefit of a covenant assigned?

A

If the benefit is not annexed at the outset (e.g. expressly excluded s.78) the benefit can be assigned when the dominant land is transferred in writing and signed by the person transferring the benefit.

85
Q

When does the benefit of a covenant pass in relation to a new housing estate?

A

If the below conditions are met, the covenants are treated as local by-laws enforceable against all owners of the housing estate.

To be a ‘building scheme’ and benefit…

  • All sellers buy from the same seller
  • The seller divided into plots
  • the covenants intended to benefit all plots
  • each buyer buys undertsanding the covenant is meant to benefit all plots
86
Q

If the benefit and burden pass in equity, what are the equitable remedies for breach of a covenant?

A

Injunctions (at court discretion)

Damages in Lieu of Injunction

87
Q

What is the basic priority rule?

Registered Land

A

An interest of whatever kind takes priority over a later disposition

The first in time principle

This is subject to a s.29 Exception that a dispotiion of a registered estate for valuable consideration takes priority over unprotected rights, or those that are not overiding interests.

88
Q

When will a registered disposition of a registered estate for valulable consideration take priority over earlier interests?

Registered Land

A

If the earlier interests are not protected and are not overiding interests

89
Q

What are the ‘registrable dispositions’ that must be completed by compulsory registration?

Registered Land - s.27

A
  • Transfer of registered freehold/leasehold
  • Grant of a lease more than 7 years
  • Express grant/reservation of an easement
  • Grant of a legal morgage
  • Grant of a landlord right to enter

… If these are registered then a purchaser for value of the burdened land will take the land subject to the.

90
Q

When will an equitable interest (e.g. easement created without registration) bind a third party purchaser of the burdened land?

Registered Land

A

It depends on whether the equitable interest has been protected by entry of a notice or restriction

  • Entry of a Notice = use for restrictive covenants, estate contracts, equitable easements and equitable leases, legal leases between 3-7 years
  • Entry of a Restriction in Proprietorship Register = this creates a condition to be fulfilled. Can be used in a trust of land.
91
Q

What is an overiding interest?

Registered Land

A

Interests in land that bind a purchaser for value even though they have not been protected

92
Q

What are the three situations whereby an unprotected interest will take effect as an overriding interest so that the new registered proprietor of land takes it subject to that interest?

Registered Land

A
  • Legal Leases 7 years or Less

….

  • Equitable Interests held in Actual Occupation

…

  • Implied legal easements and Profits prendre (if conditions are met)
93
Q

Can an equitable lease be an overriding interest per LRA schedule 3(1) (leases for 7 years or less)? Can an equitable lease ever be an overriding interest?

Registered Land

A

No - legal leases only

An equitable lease could be an OR if it falls within para (2) due to actual occupation

94
Q

When can an equitable interest holder constitute an overiding interest?

Registered Land

A

If they hold a proprietary interest (e.g. equitable lease) instead of a personal right and are in actual occupation of the land.

For example, there needs to be permanence and continuity. However, it is not defeated by temportary absence such as holidays or business trips.

Remember the two exceptions to actual occupation!

95
Q

When will an interest not override a disposition despite actual occupation?

Registered Land

A

Two situations…

(a) If inquiry was made to the equitable interest holder (or their solicitor) and they failed to disclose the right

(b) The occupation would not have been obvious on a reasonably careful inspection of the land and the purchaser of the land did not have actual knowledge of the pccupation

96
Q

Will an implied legal easement bind as an overiding interest? if so, when?

Registered Land

A

Yes, if…

(a) The new owner knew about it; or

(b) It was obvious on a reasonable inspection of land; or

(c) It has been exercised within 12 months immediately beforte the disposition

97
Q

How can an equitable interest over unregistered land bind successors?

Unregistered Land

A

By way of a land charge.

For example, Class D(Ii) for restrictive covenants, and ClassD(iii) for easements.

Once entered, it binds a purchaser.

The only equitable interest that cannot be protected by a Land Charge are beneficial interests in a trust or equitable easements and restrictive covenants created before 1926

98
Q

What is an equitable interest is not entered by way of a land charge? Is it void and against whom?

Unregistered Land

A

Non-Entry means that the interest is void against a purchaser of the land.

It is not coid against someone who is gifted or inherits the land

99
Q

To what interests does the doctrine of notice apply when considering unregistered land?

Unregistered Land

A
  • Equitable easements and restrictive covenants created before 1926
  • Equitable interests in a trust of land that hae not been overreached
100
Q

What effect does the doctrine of notice have on a bona fide purchaser?

Unregistered Land

A
  • If the purchaser has notice of the interest (actual, imputed or constructive) the interest will bind
  • If the purchaseer is ‘equity’s darling’ without notice, the interest will not bind

A purchaswer will have imputed notice if its agent/solicitor knows or ought to know- very hard to establish no notice.

101
Q

Once completion of unregistered land takes place, what must occur?

Unregistered Land

A

The buyer must register the land for the first time

Failure to register means that legal title will revert back to the seller after 2 months.

102
Q

What is joint tenancy?

A

All co-owners are one signle entity - there are no shares and the level of contribution is irrelevant

The right of survivorship applies

There must be four untiies of title…..
* Unity of posession (no exclusion)
* Unity of title (title from same document)
* Unity of interest (Same nature/interest)
* Unity of time (Vest at the same time)

103
Q

What is tenancy in common?

A

Tenants in common each have a distinct and undivided share in land (e.g. 25%)

The right of survivorship does not apply - their share can pass by will

104
Q

What does the right of survivorship mean?

A

Where owned as joint tenants, the interest of one of the deceased passes to the surviving tenants.

It operates automatically. No will effects.

It does not apply to an interest held by a tenant in common

105
Q

What is Legal Title?

A

This is the ‘public face’ of co-ownershio

The trustees are named as registered proprietors

When it comes to the register, this is only concerned with Legal title.

106
Q

How many legal owners can there be? How much it be held?

A

Maximum four legal owners of full age and sound mind holding the property as joint tenants

107
Q

Can there be legal tenancy in common?

A

No.

All property must legally be held as joint tenants.

This cannot be severed to make a legal tenancy in common.

108
Q

What is the equitable title?

A

This is the ‘private face’ of co-ownership and the names do not appear on the register of title.

This is much more flexible…
* No limit to number of people who can hold equitable interests
* No age requirment - often property is held on trust for children
* It can be held as joint tenants or tenants in common

109
Q

Can an equitable joint tenancy be severed?

A

Yes.

An equitable joint tenancy can be severed by any joint tenant so that that person holds a seperate share as a tenant in common (and can therby pass their share via will)

110
Q

What is the effect of severance on co-ownership?

A

Severance does not end co-ownership, it simply changes the basis on which the co-owners continue to hold equitable title.

It has not impact on legal title that MUST be held as joint tenants.

The person who severs holds a tenancy in common in equal shares, not on the proportion of contribution andit only affects the owner severing - the remaining joint tenancts continue to hold as joint tenants.

111
Q

Can severance take place by will?

A

No. It must take place during the joint tenant’s lifetime.

112
Q

How can severance of an equitable joint tenancy take place?

A

It can take place either by

(a) Notice in writing; or

(b) Other acts or things including (i) unilateral act by one party; (ii) mutual agreement; (iii) mutual conduct

113
Q

How can equitable joint tenancy be severed by written notice?

A

It need not take an specific form and need not be signed.

It must however….

  • Show unequivocal and irrevocable intention to sever immediately
  • Be given to all other joint tenants (or handed over/left at the last known place of abode of business)

The notice need not be read and takes effect upon service

114
Q

How can an equitable joint tenancy be severed by way of unilateral act?

A

This can eb split into three ways…

  1. Severing owner disposes of the interest by way of sale or gift (total alienation)
  2. Severing owner temporarily disposes of the interest by way of morgage or lease (partial alienation)
  3. The joint tenant is declared bankrupt (Involuntary Alienation)
115
Q

How can an equitable joint tenancy be severed by way of mutual agreement?

A

All equitable joint tenants agree that one person’s interest is severed.

If there is no ‘agreement’ consider whether there is mutual conduct such as prolonged negotiation suggesting that they do recognise one persons interest as being seperate.

116
Q

How are disputes relating to co-owned land dealt with?

A

TOLATA s14 gives the courts jurisdiction to hear applications relating to co-owned land disputes.

Anyone with an interest in land can apply

Factors the court consider include..
* Intentions of the person who created the trust
* The purpose of the trust and whether it is still continuing
* Minors
* Secured creditors
* Wishes of the majority (over 18)

117
Q

What is a licence?

A
  • Personal permission to be one land
  • Can only be enforced by grantor
  • Licensee cannto sue third parties for nuisance/trespass
  • No security of tenure
118
Q

What are the main characterisitcs of a lease?

A
  • Proprietary right in land
  • Capable of enforcement against 3rd party
  • tenant can sue a third party for nuisance/trespass
  • Can confer security of tenure
119
Q

What does it mean for a lease to have certainty of term?

A

The tenancy must be granted for a certain duration

For example a lease ‘for duration of the war’ fails since it isn’t certain as to when the war will end.

This can be achieved in the following ways…

  • Fixed term at outset
  • Periodic term (monthly tenancy)
120
Q

What is exclusive possession in the context of a lease?

A

The tenant must have the right to exclude all others from the property including the landlord

The courts look at the substance and reality of the situation to avoid shams.

121
Q

Does the retention of keys mean there is no exclusive possession?

A

It depends on the purpsoe of retention…

  • If retained for an emergency or access by arrangement (e.g. maintence) exclusive possession may exist
  • If keys are retained for unrestricted accesss, exclsuive possession will not exist
122
Q

Can a landlord provide attendance or services (e.g. making the beds) and there be exclusive possession?

A

No. There is a licence not tenancy.

Services such as clearning, changing linen are incompatible with exclusive possession.

The occupier is a lodger.

123
Q

What impact does a sharing clause have on exclusive possesssion?

This is a clause reserving the right for the landlord to introduce others to share the property

A

Often sharing clauses mean there is no exclusive possession since the occupier cannot exclude whoever the landlrod introduced

However, Antoniades v Villiers makes it clear that the courts look at the purpose. Is the clause actually going to be used or is it a sham? For example, if such a clause will not realistically have been contemplated to be used and is simply inserted to try and defeat exclusive possession, the courts will ensure the sham fails.

124
Q

Can a commercial ‘tenancy’ be a lease if the agreement contains a right for the landlord to relocate and move the tenant to alternative premises?

A

No. Unless a sham clause that will not reasonably be used, such a provision defeats exclusive possession

125
Q

Where two or more people share occupation, can they still have exclusive possession and thereby a lease even if they cannot exclude eachother?

A

Yes if they can show they have a joint tenancy.

They must be able to show untiy of possession, interest, time and title.

  • All interests must start at the same time
  • The interests must derive from the same document or identical seperate documents that are interdependent

For example, if four university students sign the identical lease as part of serperate document, thats sufficient

126
Q

Can a service occupancy in the employer/employee relationship give rise to a lease?

A

No.

If the occupier is required to live in the premises for the better profrmnace of his duties, there is no tenancy even though rent may be paid.

(e.g. caretaker flat, domestic staff accomodation)

However, it has to be for better performance of duties. If it can be shown that the property has no bearing on the performance of duties, it could be a lease

127
Q

What are the formalities to create a legal lease?

A

Deed must be used and…

  • If over 7 years old, it must be registered
  • If less for 7 years or less, it need not be registered and bind as an overiding interest

There are no formalities (e.g. it could be oral) for a parol lease of 3 years or less

128
Q

What formalities are needed for a short (parole) lease of 3 years or less to be a legal lease?

A

No formalities are needed for a short lease so long as…

  • Lease takes effect immediately
  • At market rent
  • With no upfront payment (premium)
129
Q

What is required for an equitable lease?

A
  • There must be a document in writing, signed by both parties; and
  • The remedy of specific performance must be available
130
Q

In old leases (pre 1996) what is the original landlord and tenant liability for leasehold covenants if their interest has been assigned or sold?

A

In old leases (pre 1996) the liability of the original landlord and tenant continues for the full duration of the term, even after assignment or reversion.

They are liable for the breaches of covenant by their successorts for the entire duration.

131
Q

Upon assignment of a new lease (1996 onwards) what happens to the benefit and burden of leasehold covenants?

A

The benefit and burden automatically pass (so long as they are not personal) and the outgoing landlord/tenant is released from its obligations.

However, the outgoing tenant may have provided an AGA under which the landlord could sue if their immediate successor breaches the covenant

132
Q

What class of title will normally be granted at the time of first registration of the title to the land where the unregistered title was based either on adverse possession or on title deeds which had been lost or destroyed.

A

Possessory Title

For example, a farmer is selling his freehold farm which he acquired in 1979. One small field has no deeds. He has farmed that field since 1979

133
Q

Does a prescriptive easement require protection by registration of a land charge to be binding upon the owners of unregistered land?

A

No.

A prescriptive easement takes effect as a legal easement for the benefit of the land even though it is not registered in the title

134
Q

What is required for a possessory class of title to be granted?

A

Only if the applicant for first registration is in actual possession of the land or in receipt of the rents and profits from it

135
Q

When will a solus tie be invalid?

A

If the solus tie lasts beyond the term of the mortgage, it will only be upheld if truly independent of the mortgage transaction.

For example, a registered 25-year leasehold of a café with a 15-year legal mortgage over the lease. One of the terms of the loan stipulates that your client must purchase its retail coffee products from the company during the period of the lease. This would be invalid since it goes on for an additional 10 years after the morgage date.

136
Q

If an easement is implied into a legal transfer deed (e.g. by common intention) is it an equitable or legal easement>

A

It is legal if the easement is implied into a legal transfer deed, since takes its status from the legal document, making it a legal easement.

137
Q

Can you sever a joint tenancy by sending notice to someone other than the joint tenant?

A

No. Notice must be sent to the joint tenant.

138
Q
A

SQE 1 Flashcards (58 decks)

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