Land Law (Underlying) Flashcards
What characterises proprietary rights?
- Enforced by an action in rem = Use/Possession can be recovered
- Capable of being enforced against a third party
What characterises personal rights in land?
- Can only be enforced by a personal action for damages
- Only binding the original parties - not third parties
What rights are capable of being legal rights?
- Morgage
- Eastement
- Right of Entry
What rights can only take effect in equity?
- Restrictive Covenants
- Interest in trust of land
- Estate Contracts
What are the requirments of a valid land contract?
For example, the contract at the point of exchange in a freehold transaction
- In writing
- Contain all the expressly agreed terms
- Signed by both parties
What is required for a legal estate to be transferred?
It must be transferred or created by deed per LPA s.25(1) - this must be validly executed and delivered - usually TR1 is used
When does legal title pass on a transfer of unregistered land?
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.
When does legal title pass on a transfer of registered land?
Legal title only passes upon registration
What effect does a land contract have?
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.
What is the mirror principle?
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’
What is the curtain principle?
The register records ownership of the legal estate and legal title.
The register is NOT concerned with beneficial and equitable ownership!!
What is the insurance principle?
The accuracy of the land register is guaranteed by state. If there is an error, the state will indemnify loss.
What are the two test to determine if an object is a fixture or chattel?
- Degree of Annextation Test
- Purpose of Annexation Test
What is the degree of annexation test when deciding if an object is a fixture or chattel?
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)?
What is the purpose of annexation test and when does it apply?
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.
Is a tapestry tacked to a wall for enjoyment chattel or a fixture?
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.
Is a stone seat standing on its own weight in the garden forming part of the architecture a fixture or chattel?
If chattels are incorporated into the architectural design, they may be fixtures even if not firmly attached due to the purpose test
What is a morgage?
A bundle of proprietary rights granted to the lender as security for a loan
What are the requirments for a legal morgage?
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.
When would a grant of a morgage be an equitable morgage?
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.
What happens if the morgage is repaid in full?
The morgage entries at the Land Registry must be cancelled.
They are considered fully discharged when all reference is removed from the charges register.
What is the equitable right of redemption?
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
When can a borrower repay a morgage?
After the legal date of redemption has passed (due to equitable intervention, this is opposed to only on that date)