Land MCQS Flashcards

Question

**If a piece of unregistered land is transferred, at what point is the buyer recognised as being the legal owner of the land?** A) Registration B) When the purchase money is paid C) When the land is registered for the first time D) Exchange of contracts E) Completion of the transfer deed

Answer 1

E) Completion of the transfer deed (Legal title (ie ownership) transfers at the point of completion if the land being transferred is unregistered)

Answer 2

C) Registration (Legal title (ie ownership) transfers at the point at which the buyer is registered at the Land Registry)

Answer 3

A) True because s 2(1) permits all the terms to be in two documents provided they are identical (The statement is true. The agreed land contract can be engrossed in duplicate, with the parties signing different copies of the same document, which are then physically swapped. This is standard conveyancing practice to save time and is known as 'exchange of contracts')

Answer 4

C) The prospective tenant need not enter into the lease because the landlord has not complied with plans and scheme of building works, which have been included in the sale agreement by incorporation (The two parties have entered into an agreement for lease, which is a contract to enter into a lease in the future. Such a contract must comply with LP(MP)A 1989, s.2, which it does. The contract is in writing, has been signed by both parties and contains all the agreed terms, including the building works and plans, which have been included by incorporation. This is permitted by LP(MP)A 1989, s 2(2), which provides the contractual terms may be incorporated into the contractual document either by being set out in the document or by referring to some other document. The landlord has not complied with the terms by undertaking the works. Therefore, the other party need not enter into the lease because it is conditional upon these being completed)

Answer 5

A) The agreement has not been extended because the variation does not comply with the necessary statutory formalities (The agreement is a right of pre-emption, which is a type of land contract. In order for a variation to be valid, it must also comply with LP(MP)A 1989, s.2. This was made clear in the case of McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38, where the parties tried to agree an oral variation to the agreed completion date. This variation was held to be void and the court stated that whenever a material term in land contract is varied, that variation must comply with LP(MP)A 1989, s.2. The term of the pre-emption agreement is no doubt a material term)

Answer 6

E) The contract gives an equitable interest in the land (The effect of a land contract is to pass an equitable interest in the land. This is a proprietary right in the land known technically as an ‘estate contract’)

Answer 7

D) The buyer should ask for the court for an order of specific performance which would compel the seller to comply with the contract (As the contract for sale grants the buyer a proprietary equitable interest in the land, the buyer is entitled to damages as a right for breach. Given the buyer would like to proceed with the purchase, the buyer should ask the court for an order of specific performance. This is an order which, if granted, would compel the seller to comply with the terms of the contract and sell the land to the buyer. This, like an injunction, is an equitable remedy, which means it will only be granted at the discretion of the court)

Answer 8

C) In writing, contains all the terms and is signed by both parties (A land contact must comply with LP(MP)A 1989, s.2. The contract must be in writing, all the terms must be included and the contract must be signed by both parties. There is no requirement that the signatures of both parties be witnessed, unlike the requirements for a deed)

Answer 9

A) A five-year lease (LP(MP)A 1989, s 2 applies to all land contracts, not just a contract for the sale of land. If the subject matter of the agreement is land, s.2 will apply. A lease is not, however, a contract. It is the grant of an estate in land, which must be by deed)

Answer 10

C) Registered Land (The LRA 2002 governs the registered land system. The system was introduced by the Land Registration Act 1925, but this has not been repealed and replaced in its entirety by the LRA 2002)

Answer 11

D) You only have to register a piece of land if a triggering event occurs eg sale of the freehold estate (From 1926 onwards central government designated various areas as being areas of compulsory registration, so eventually all of England and Wales would be registered. It was not until 1990 that all of England and Wales became designated as an area subject to compulsory registration. The effect of designating an area as being subject to compulsory registration is that if there is then a transaction or event (disposition) with the land which triggers compulsory registration (a triggering event) then the land must be registered for the first time. If there has not be a triggering event with a piece of land it will remain unregistered unless the land owner chooses to make a voluntary first registration application)

Answer 12

E) The process of conveyancing is quicker, simpler and ownership is guaranteed by the state (A buyer of registered land does not need to investigate numerous title deeds to establish ownership and the rights a piece of land has the benefit/burden of. As a result, it is quicker and simpler to investigate a piece of registered land and speeds up the process of conveyancing. Also, ownership of a registered pieces of land is guaranteed by the state, so there is a mistake with the register then the innocent party who has suffered loss can make a claim for compensation against the Land Registry)

Answer 13

C) Unregistered Land (This is correct. The historic title deeds, which trace the ownership of property are what you would need to show to prove you own an unregistered piece of land)

Answer 14

A) LRA 2002, s 4 (LRA 2002, s 4 lists the transactions over unregistered land that trigger a requirement to register the land for the first time. The grant of a legal mortgage over a piece of unregistered land will trigger a requirement to register the land for the first time)

Answer 15

A) The grant of a 9 year lease, the gifting of a freehold and the grant of a legal mortgage (Under LRA 2002, s 4 (first registration) and LRA 2002, s 27 (transactions involving already registered land) the circumstances which trigger compulsory registration now include all of these transactions. It is not necessary for there to be a sale of a freehold estate, the gift or assent of a freehold estate will also trigger a registration requirement. The grant of a lease over 7 years must be completed by registration, as must the grant of a legal mortgage)

Answer 16

A) Charges Register (This register contains details of any rights that burden a piece of land eg leases, mortgages, restrictive covenants, easements)

Answer 17

A) Property Register (This register contains a description of the piece of land and the details of any rights that benefit a piece of land)

Answer 18

D) Absolute Title (This is the best form of ownership and is really what you would want to see on the official copies if you were buying a property. Most properties are registered with this class of title and it means the Land Registry does not consider there are any defects with the ownership. The land is only bound by interests that are registered on the title or overriding interests)

Answer 19

C) Proprietorship Register (This register contains details of the the class of title such as title absolute, possessory title)

Answer 20

B) Certain interests do not need to be registered, but will still be binding on a third party (The mirror principle is the ideal that the register should reflect all matters that the property has the benefit of and all the matters that the property is subject to. It should be a clear and comprehensive account of the ownership and rights that benefit and burden a piece of land. However, this has arguably never fully been realised due to the existence of 'overriding interests', which are interests that do not need registering and so do not appear on the register, but will still be binding)

Answer 21

A) The accuracy of the register is guaranteed by the state (This is the insurance principle of Land Registration. The accuracy of the register is guaranteed by the state. This is one of the advantages of registered land over unregistered land. Therefore if there is an error the register will be corrected and anyone who has suffered any loss will be compensated (LRA 2002, s 23.) You often see the compensation referred to as 'state indemnity')

Answer 22

C) s.205(1)(ix) LPA 1925 (This is correct. The statutory definition includes; the surface of the physical land, building on the land, fixtures and incorporeal hereditaments)

Answer 23

A) Fittings (This is correct. Fitting are not included within the definition of land under LPA, 205(1)(ix))

Answer 24

A) If you are selling a piece of land, you need to know what you are entitled to take and what must be left for the buyer as everything classed as land passes to the buyer under LPA 1925, s 62 (This is correct. This is particularly relevant in the context of fixtures/fittings. If an item is a fixture, it is part of the land and must therefore be left for the buyer. However, if something is a fitting, the seller can take it)

Answer 25

A) A landowner owns the lower airspace above his/her land (This is correct. A land owner has rights in what is classed as the lower airspace above his/her land)

Answer 26

D) Yes the satellite dish would be committing trespass as it is in the lower airspace above the land (This is correct. The satellite dish would be classed as trespassing into the lower airspace of the land. The lower airspace is the area above the physical land which is reasonably necessary for a landowner’s use and enjoyment of the land, it does not matter that no damage is being caused to the land. The facts of this case are similar to Kelsen v Imperial Tobacco Co)

Answer 27

A) A landowner owns the ground under the surface to depths above 300 metres (This is correct. The Infrastructure Act 2015, s43 effectively states there is no trespass at depths below 300 metres)

Answer 28

A) A corporeal hereditament (This is correct. Corporeal hereditaments are things attached/fixed to the land, what we call fixtures in practice)

Answer 29

B) An item not attached to the land can be a fixture if it part of the architectural design of a building (This is correct. If chattels are incorporated into the architectural design of a building, they may consequently be classified as fixtures even though they are not firmly affixed. This can be seen in D’Eyncourt v Gregory (1866) LR 3 Eq 382 where a stone garden seat and ornamental statues standing on their own weight were held to be fixtures as forming part of the architectural design of the house and its grounds)

Answer 30

C) It will depend on the circumstances of the case. If the picture can be removed easily and put in place to enjoy as pictures, it is likely to be a chattel (This is correct. Such a situation is analogous to the facts of Berkley v Poulett [1977] 1 EGLR 86, and as Lord Justice Scarman states: “if ordinary skill was used, as it was, in their removal, they could be taken down, and in the event were taken down, without much trouble and without damage to the structure of the rooms. The decisive question is therefore as to the object and purpose of their affixing. …I find, applying the second test, that the pictures were not fixtures. They were put in place on the wall to be enjoyed as pictures.”)

Answer 31

B) The purpose of annexation test (This is correct. The ‘purpose test’ prevails over the ‘degree test’ where there is a discrepancy between them (Holland v Hodgson (1872) LR 7 CP 328))

Answer 32

B) Capital and interest repayments (Correct. Each month the borrower pays an instalment which consists partly of repayment of capital and partly interest on the outstanding balance)

Answer 33

A) The mortgagor is the borrower (This is correct. The mortgagor is the borrower, who grants the mortgage as security for the loan)

Answer 34

C) They will be charged a low interest rate (When the borrower is a low risk party, s/he will usually be charged a low interest rate)

Answer 35

D) A mortgage is capable of being a legal or equitable interest in land (Correct. See LPA 1925 ss 1(2)(c) and 1(3))

Answer 36

C) The mortgage will be equitable provided that it is in writing which contains all the terms and is signed by both parties (Correct. A failed legal mortgage will be treated as a contract to create a legal mortgage if it complies with LP(MP) A 1989, s 2)

Answer 37

C) In writing signed by the mortgagor (Correct. A mortgage over an equitable interest need only be in writing and signed by the grantor (LPA 1925, s 53(1)(c)))

Answer 38

A) When it is granted in a substantially separate transaction (Correct. Warnborough V Garmite said that the whole transaction must be looked at to see if it is substantially a mortgage or not. If it is a mortgage, the option will not be allowed and vice versa)

Answer 39

C) No postponement or prevention of redemption (Correct. The equitable right to redeem does not arise until 6 weeks before the end of the mortgage term. Courts look at clauses which postpone the legal date for redemption very closely and would consider whether, on the facts, the right to redeem is rendered valueless)

Answer 40

B) On the date set out in the mortgage deed (Correct. The legal right exists for one day, and is the date set out in the mortgage deed. Review the materials on the equitable right to redeem)

Answer 41

C) The clause was struck out because once the loan was repaid, the borrower would get back an estate which was worth much less than at the time of the mortgage (Correct. The borrower would not get back an unencumbered leasehold which was exactly what he had mortgaged. A leasehold estate is a depreciating asset, and a lease with only 6 weeks left to run, is very different to a lease with 17 years left to run)

Answer 42

A) The solus tie will be permitted in a commercial transaction if the tie ends before or at the end of the mortgage term (Correct. This is the decision in Biggs v Hoddinot)

Answer 43

C) Husband and wife (Correct. In cases where undue influence is claimed, it will not be presumed but will need to be positively shown)

Answer 44

B) A transaction which requires explanation (Correct. If there is a relationship of trust and confidence the transaction must be one that initiates the question ‘why has X signed this?’ If it is, undue influence is established)

Answer 45

B) The bank had constructive notice of Mr O’Brien’s undue influence and failed to take reasonable steps to ensure that Mrs O’Brien was fully informed (Correct. The bank had notice of the potential risk of undue influence and should have ensured that Mrs O’Brien fully understood what she was signing)

Answer 46

B) RBS v Etridge

Answer 47

B) The principles are relevant in every case where the relationship between the person claiming undue influence and the debtor is non-commercial (Correct. The idea of constructive notice now extends far beyond family and spousal relationships)

Answer 48

B) Priority between legal charges depends on the order in which they have been registered (Correct. This is the rule in LRA 2002, s48)

Answer 49

A) Priority between equitable mortgage depends on the order in which they are created (Correct. Equitable mortgages do not have to be registered in order to be created properly. LRA 2002, s28 which relates to equitable interests, says that equitable interests take effect in the order in which they are created)

Answer 50

B) It takes priority over ALL subsequent mortgages, whether legal or equitable (Correct. LRA 2002, s29(2) says that an interest which is protected takes priority over all subsequent transactions)

Answer 51

A) 12 years for capital and 6 years for interest (This is correct. The limitation period for a contractual debt is not straightforward: if the mortgage has been created by deed, as all legal mortgages must be, then the period for recovery of the debt stated in the deed (the capital) is twelve years. The limitation period for recovery of interest is six years. What this means in reality is that borrowers can find themselves involved in contractual debt actions many years after repossession, when they may have thought that their troubles were behind them)

Answer 52

E) It sets out an expectation that lenders will explore alternative arrangements with a borrower before taking possession of residential properties (Correct. It was intended to reduce the number of residential properties which were being repossessed and the number of families losing their homes. Lenders agreed that possession should be a last resort)

Answer 53

B) The lender may sue the borrower in contract for the outstanding debt (Correct. The right to sell is a proprietary remedy which coexists with the contractual remedy which does not extinguish it)

Answer 54

C) All subsequent mortgages and the contractual debt are extinguished (Correct. The borrower cannot be sued personally either by the lender who forecloses or any subsequent lender)

Answer 55

A) The borrower (Correct. This may seem odd, as the receiver is appointed by the lender, but it means that the lender is not liable for the receiver’s negligence)

Answer 56

A) To avoid possible criminal proceedings following allegations of use of force to gain entry to premises (Correct. The order for possession gives the lender authority to possess and protect the lender from criminal proceedings under Criminal Law Act 1977, s6)

Answer 57

C) It enables a court to postpone possession of a residential property where an order has been applied for by the lender (Correct. The court can postpone possession of residential properties only and has discretion as to timing and conditions)

Answer 58

C) The borrower must pay the arrears before the end of the mortgage term (Correct. This generous interpretation of the effect of s 36 is set out in AJA 1973, s 8 and Cheltenham & Gloucester Building Society v Norgan)

Answer 59

A) Immediately the mortgage deed is signed (Correct. This is set out in Four Maids v Dudley Marshall and LPA 1925, s95(4). It is set out expressly in most mortgage deeds, although there will be an acknowledgement by the lender that it will not exercise the right whilst payments are met)

Answer 60

C) Yes, if there is firm evidence of an imminent exchange of contracts (Correct. This was decided in Mortgage Services Funding plc v Steele. Simply instructing a solicitor will not be enough)

Answer 61

A) As soon as one monthly instalment has become payable (Correct. LPA 1925, s 101(1) says that the right arises when the mortgage money ‘has become due’. In an interest-only mortgage, that will happen on the legal redemption date; in a capital and interest repayment mortgage, that happens when any payment of capital has become due)

Answer 62

B) When some of the interest is unpaid for two months or more (Correct. LPA 1925, s 103(ii) states that some interest must be outstanding for two months. It does not mean that two months’ worth of arrears is owed! The amount can be very small)

Answer 63

B) The first loan is redeemed first, then the second loan with any surplus being paid to the borrower (Correct. The first lender takes priority and is paid first, even though the second lender actually sold. The surplus proceeds are held in trust of the first borrower)

Answer 64

A) The lender cannot be expected to achieve the perfect sale price, but the price must be in the correct bracket (Correct. This was the decision in Michael v Miller)

Answer 65

A) The lender has an unfettered discretion as to when to sell and need not delay (Correct. This was decided in Silven Properties Limited v Royal Bank of Scotland plc)

Answer 66

D) implied reservation (This is correct. The right is not in writing and must therefore be implied. It is a reservation as it is a right which C has kept back for himself out of the land sold to D)

Answer 67

C) Law of Property Act 1925, s 1(2)(a) (This is correct. This section states that an easement granted or reserved for the equivalent of a term of years absolute is capable of being a legal interest in land)

Answer 68

C) a profit a prendre (This is correct. A profit a prendre confers on the holder of the right to take anything, such as produce, animals, fish, or minerals, from the land)

Answer 69

E) an express grant (This is correct. The right is express as it is in writing, and it is a grant as it is a right which A creates in favour of B)

Answer 70

20 (Easements may arise by prescription or ‘long use’. Generally an easement is claimed by prescription where it has been exercised over land for a long time (at least 20 years), yet no express grant or reservation can be traced)

Answer 71

No (Although the right has been exercised for over 20 years, a prescriptive right can only be created as between two freehold owners)

Answer 72

A) No, there is no defined aperture in a garden (There is no general right to light. A right to light must be via a defined aperture eg a window. Rights to light do not attach to gardens or open land)

Answer 73

E) a right to light (This is correct. A negative easement is an easement which is enjoyed from the dominant owner’s own land and does not involve entering or using the servient land at all)

Answer 74

E) implied reservation (This is correct. The right is not in writing and must therefore be implied. It is a reservation as it is a right which C has kept back for himself out of the land sold to D)

Answer 75

A) No, the right has been exercised with the use of force (This is correct. A prescriptive easement must be exercised without force. Force includes the removal of obstructions, or ignoring the protests of the servient owner, which would include the ignoring of signage)

Answer 76

B) The right should benefit the dominant land owner even if they were to sell the dominant land (This is correct. Lord Oliver’s test in essence requires the easement to benefit the land itself, not simply the dominant owner personally and actually, this means that the easement should cease to be of any benefit to the dominant land owner if they sold the dominant land)

Answer 77

D) A right to a scenic view (Judicial recognition is an essential element which must be satisfied if a right is to be capable of being an easement. The court is willing to recognise new easements if they are analogous to existing recognised easements, but a right to a scenic view has been specifically discounted from being an easement because it it not capable of reasonably exact definition - how do you begin to define 'a scenic view'?!)

Answer 78

E) Re Ellenborough Park (This is correct. This case sets out the four criteria which must be met in order for an easement to be capable in principle of being an easement)

Answer 79

D) Positive easements only (This is correct. New negative easements would unduly restrict the use of the servient land: Phipps v Pears)

Answer 80

E) The use of the right must not amount to exclusive possession of the servient land (This is correct. A right which passes the tests in re Ellenborough Park will nevertheless be disqualified on this basis)

Answer 81

E) Borman v Griffith (This is correct. Judicial recognition is an essential element which must be satisfied if a right is to be capable of being an easement)

Answer 82

C) The easement must not leave the servient owner with no reasonable use of the servient tenement (This is correct. The ouster principle is sometimes called the reasonable user test)

Answer 83

C) If the right grants exclusive possession to the dominant land owner, requires payment by the servient land owner or requires permission from the servient land owner everytime it is exercised, it will not be an easement (This is correct. A right cannot be an easement if the user amounts to exclusive possession by the servient owner, if is requires payment by the servient land owner or if permission is required to exercise the right)

Answer 84

A) A right to store in part of the shed where the servient land owner is prevented from accessing the shed (This is correct. The servient land owner is not left with reasonable use or possession and control of the shed, it will be disqualified on the facts)

Answer 85

A) The man need not repair the lane but must allow the woman access to do the repairs (This is correct. There is no obligation on the servient owner to carry out repairs: Jones v Pritchard)

Answer 86

A) A right to use a tennis court where the servient land owner can stop the dominant land owner from playing so that they can use the court (This is correct. The essence of an easement is that it is enjoyed as of right. If the dominant land owner has to stop exercising their right when asked by the servient land owner, the right will be disqualified for permission)

Answer 87

B) The right may be recognised as an equitable easement if it is in writing, signed by both parties and contains all the agreed terms (This is correct. A failed legal easement may be treated as an enforceable contract to create a legal easement if the failed legal easement complies with the formalities for an estate contract in the Law of Property (Miscellaneous Provisions) Act 1989, s 2)

Answer 88

B) It must be created in writing, signed by the grantor only (This is correct. These are the formalities for a basic equitable interest set out in Law of Property Act 1925, s 53(1)(a))

Answer 89

D) Deed + registration (This is correct. LPA 1925, s 52 and LRA 2002, s 27(2)(d) respectively provide a deed must be used, which must then be substantively registered)

Answer 90

D) To be legal, an easement must be granted it reserved for the equivalent of a freehold or leasehold term (This is correct. Section 1(2)(a) of the LPA 1925 makes this clear)

Answer 91

D) Law of Property Act 1925, s 52 (This is correct. An express legal easement must be created by deed)

Answer 92

A) Rights of way (This is correct. 'Necessity' is strictly construed and any other rights, including to use drains and sewers are not absolutely necessary for the enjoyment of land, so the claim would fail)

Answer 93

B) It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible (This is correct. The case appears to expand the scope to allow rights of way for land which is not actually landlocked)

Answer 94

C) ‘Absolute necessity’: the land cannot be used at all without the easement (This is correct. This is the test which was applied in Manjang v Drammeh and Pryce v McGuinness.)

Answer 95

C) A specific common purpose in respect of use of the land that cannot be achieved without the easement (This is correct. The right must be essential to the agreed common purpose as to use otherwise common intention cannot be used)

Answer 96

B) The original parties must have been landlord and tenant (This is correct. This method of implying easements does not require the original parties to be landlord and tenant. This method would also work if one party had bought part of the other’s land, instead of leasing it)

Answer 97

B) A right of storage claimed by a tenant who uses the land as a restaurant (This is correct. Premises can be used as a restaurant without storage, the right is not necessary to achieve the common intention - use of the premises as a restaurant)

Answer 98

A) Grants and reservations (This is correct. Whilst some methods of implied acquisition operate only on grants, this method is not so restricted)

Answer 99

B) The right is necessary for the convenient and comfortable enjoyment of the land (This is correct. The definition of the word ‘necessity’ in this context is much more relaxed than in cases on easements implied by necessity or by common intention of the parties. The right must enhance the land in some way)

Answer 100

B) Deeds or contracts (This is correct. Wheeldon v Burrows has a wider scope than Law of Property Act 1925, s 62 in that it operates on contracts as well as deeds)

Answer 101

B) Grants only (This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land)

Answer 102

D) There must be a quasi-easement exercised for the benefit of the land now owned by the claimant (This is correct. There must have been a single owner who enjoyed the right now claimed as an easement, for the benefit of that part of the land which is now the dominant tenement. The benefit becomes an easement once the ownership of the land is in different hands)

Answer 103

E) The right must touch and concern the dominant land (This is correct. This concept is part of the rules on capability which must be fulfilled before we even consider whether the right has actually been acquired)

Answer 104

A) The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold (This is correct. Although case law had suggested that the section only operated where there had previously been a landlord and tenant situation, it is now settled law that the section also operates on quasi-easements to imply an easement into a transfer deed or lease where the land is let for the first time)

Answer 105

B) s62 passes the benefit of existing easements to a new owner of the dominant land (This is correct. The section operates as a word-saving section and makes it clear that any existing rights and easements will form part of the dominant land and will automatically pass to the new owner on a sale)

Answer 106

C) Deeds only (This is correct. Law of Property Act 1925, s 62 has a narrower scope than the rule in Wheeldon v Burrows in that it only operates on deeds)

Answer 107

C) Grants only (This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land)

Answer 108

C) The buyer will be successful providing the right is continuous and apparent (This is correct. Where there is no prior diversity of occupation (ie the land is being divided for the first time, as it is here by the transfer deed) then the right must be continuous and apparent. This means the right must have been used reasonably regularly and must be obvious on reasonable inspection of the land)

Answer 109

E) No registration is necessary it will be an overriding interest (providing the conditions are met) (This is correct. Implied legal easements operate as overriding interest provided that one of the conditions in Land Registration Act 2002, Schedule 3, paragraph 3 is met)

Answer 110

B) The easement must be held by someone who is in actual occupation of the servient land (This is correct. This provision is not listed as a condition in Schedule 3, paragraph 3. It relates to equitable interests which are held by people in actual occupation of the land in question. Although Chaudhary v Yavuz suggests obiter that an equitable easement could be an overriding interest based on actual occupation, there is no direct authority on this)

Answer 111

A) Law of Property Act 1925, s 62 (This is correct. The ordinary operation of s 62 operates as a word-saving provision, stating amongst other things that all rights privileges and easements which benefit the dominant land automatically pass on a transfer of that land)

Answer 112

D) The easement is not binding on a purchaser for value of the servient land (This is correct. Buyers and lenders are purchasers for value, and will take the land free of an unprotected equitable easement, although it will still bind a volunteer (or donee), which is someone who is gifted or inherits the land)

Answer 113

E) Substantive registration (This is correct. An express legal easement must be substantively registered in order to be legal, it is part of the process to create the legal easement. Once substantively registered it will appear in the charges register of the servient land and will automatically bind a new owner of that land)

Answer 114

A) Whether the covenant is enforceable by and against successors in title to the original parties (The legal problem here is that there is no contractual relationship between successors in title to the original parties. We look at whether the relevant rules have been observed to enable a successor in title to the covenantee to enforce a covenant direct against a successor in title to the covenantor)

Answer 115

A) That the benefit of the covenant has passed to the successor covenantee and that the burden of the covenant has passed to the successor covenantor (In order for the covenant to be enforced by a successor covenantee, they must show that they have the benefit of the covenant to enable them to sue. In order to enforce the covenant against a successor covenantor they must show that the successor covenantor has the burden of the covenant to enable them to be sued)

Answer 116

C) The person who enters into the covenant and owns the servient land (This is correct. The covenantor is the person who enters into the covenant and is subject to the burden of the promise. That person’s land is the burdened or servient land)

Answer 117

A) The covenantee can sue if the covenant is breached (The covenantee owns the land which has the benefit of the covenant and is able to enforce the covenant if it is breached)

Answer 118

A) A covenant which obliges the owner of the land to do something (This is correct. A positive covenant obliges the covenantor to "put their hand in their pocket" and do something to comply with the covenant, either spend money or energy. The covenant cannot be complied with by inaction)

Answer 119

A) That the benefit of the covenant has passed to them (A successor in title can only enforce a covenant if they can show that the benefit of the covenant has passed to them, as it is holding the benefit of the covenant which enables a party to sue)

Answer 120

C) Look at underlying substance of the covenant rather than the precise words used (The correct approach is to look beyond the words used to see the effect of the covenant in practice. It is the substance of the covenant, rather that the words used to express it, which is important)

Answer 121

B) A covenant to use the land for residential purposes only (This is a restrictive covenant as it restricts the use which can be made of the land)

Answer 122

A) This is a mixed covenant which is predominantly negative with a positive condition attached (This is a predominantly negative covenant as the primary obligation is not to build on the land. The positive condition cannot stand alone but is only relevant when read alongside the main obligation)

Answer 123

D) Haywood v Brunswick (This case sets out the ‘hand in pocket’ test, which states that if performance of a covenant requires expenditure of money, it is a positive covenant)

Answer 124

A) A covenant not to allow a fence to fall into disrepair (This is a positive covenant as the substance of the covenant is to maintain the fence in a good state of repair)

Answer 125

B) The burden of a covenant does not pass at common law (A covenant is essentially enforceable on common law contractual principles. The general rule is therefore that the covenant is personal between the parties and the burden of the covenant cannot therefore pass to a new servient owner)

Answer 126

D) There must be an intention for the benefit to pass (The intention for the benefit to pass relates to the passing of the benefit and has not place in the test for passing the burden)

Answer 127

D) LPA 1925, s 79 (This is correct. If there is not express intention that the burden should run (look to the wording of the covenant) then s 79 will imply such intention unless contrary intention can be shown)

Answer 128

D) A purchaser for value will not be bound by the covenant but a donee would be (This is correct. Although the rules are different depending upon whether the land is registered or not, the principle is the same. A purchaser of the land would not be bound, but a donee (someone who is gifted or inherits the land) will be)

Answer 129

C) The benefit of the covenant forms part and parcel of the dominant land from the time of creation and automatically passes to a new owner of the dominant land when the land is transferred (This is the most comprehensive definition of annexation, which operates to make the benefit an integral part of the dominant land itself)

Answer 130

C) LPA 1925, s 78 (S 78 operates to annex the benefit of a covenant to the dominant land as soon as the covenant is made, unless this is expressly excluded)

Answer 131

A) The assignment must be in writing and signed by the person disposing of the benefit, LPA 1925, s53(1)(c) (This is correct. The benefit is treated as the disposition of an equitable interest in land and the formalities in LPA 1925, s 53(1)(c) must be complied with)

Answer 132

D) The benefit of a restrictive covenant will pass if the parties intended to create a scheme of mutually enforceable obligations (The test concerns the intention of the parties, relaxing the strict requirements set out in Ellison v Reacher)

Answer 133

B) Austerberry v Oldham Corporation (Austerberry v Oldham Corporation states that at common law, the burden of an obligation cannot pass to the successor in title of the original covenantor)

Answer 134

D) Damages only (As the original covenantor is no longer in possession of the land, they cannot carry out the terms of an injunction or order for specific performance. The only remedy which can be awarded is damages)

Answer 135

A) It enables the original covenantor to recover any damages paid out in respect of a successor’s breach. The damages can only be recovered from the original covenantor’s immediate successor in title (An indemnity covenant is made between the original covenantor and his successor in title and is personal to them. If the original covenantor pays out damages for a successor’s breach, the indemnity covenant enables the original covenantor to recover the outlay from the immediate successor in title, who may not be the person in breach)

Answer 136

C) All covenants of whatever type (The general common law rule applies to all covenants of whatever nature, although they are typically used for positive covenants for which the equitable rules do not apply. Generally, the burden of an obligation will not pass to a successor in title at common law)

Answer 137

C) The section implies wording into freehold covenants to make the original covenantor liable for all breaches of covenant by any successor in title (The section makes the original covenantor liable for all breaches of covenant by any person who holds the land after the original covenantor has parted with it. It does not pass the burden of the covenant)

Answer 138

A) Halsall v Brizell (Halsall v Brizell gives the mutual benefit and burden exception to the general rule. Its scope was refined in subsequent cases)

Answer 139

A) A covenant to contribute towards the costs of the maintenance of a tennis courts, which the the servient land owner has a right to use and chooses to use (This is correct. The is a mutual benefit - the right to use the tennis court, which the servient land owner is choosing to take. Therefore, the burden will pass using the rule in Halsall v Brizell)

Answer 140

C) There must be a close link between the benefit in the nature of an easement and the burden of the covenant (Rhone v Stephens restricted the scope of Halsall v Brizell as it had been thought that the benefit and the burden simply had to be conferred in the same transaction. It made it clear that the benefit and burden had to be directly linked)

Answer 141

A) In writing, with notice given to the covenantor: LPA 1925, s 136 (The assignment can be made simply in writing, but notice must be given to the covenantor. This is to inform the covenantor that a new person is entitled to enforce the covenant)

Answer 142

A) P&A Swift Investments v Combined English Stores plc (Correct. This case sets out the 4 requirements for implied assignment of the benefit of a covenant at common law)

Answer 143

C) The buyer covenants with the intention of benefiting land know of 31 Yew Tree Close to only use the land for residential purposes (Intention of the parties is expressed here with the reference to the covenant 'benefiting land know as…' If there is no express intention, LPA 1925, s 78 implies an intention for the benefit to pass unless it is expressly excluded)

Answer 144

D) The covenant does not touch and concern the dominant land (A covenant to wash the covenantee’s car every week will not touch and concern the land as it has no impact on the quality, enjoyment or utility of the land. It is simply a personal privilege)

Answer 145

A) The Upper Tribunal (Lands Chamber) (The Upper Tribunal (Lands Chamber) has jurisdiction to hear applications of this nature)

Answer 146

C) LPA 1925, s 84(1) (s84(1) gives the Upper Tribunal (Lands Chamber) the power to discharge the whole or part of a covenant)

Answer 147

A) The original dominant owner has sold the dominant land and cannot be located in order to execute a formal discharge (There is no provision in s84(1) LPA 1925 for an application to be made simply because the dominant owner has sold the land. In fact, the appropriate person to execute a discharge is the current dominant owner, but even so, there is no provision in the statute for this type of application)

Answer 148

B) Restrictive covenants only (s84(1) specifically states that the tribunal can only discharge or modify restrictive covenants)

Answer 149

B) A man gift their land to a woman (This is correct. The basic rule of priority applies whenever there is not 'a disposition of a registered estate for valuable consideration' which this is not. The woman is being gifted the land, she is a 'donee' and not a purchaser for valuable consideration. The basic rule of priority in s 28 of the LRA 2002 will therefore apply and the woman will take the land subject to all pre-existing interests)

Answer 150

C) The woman and the friend only (This is correct. The woman granted the interest over the Land and is therefore bound by it (often under the ordinary rules of contract law). The enforcement rules are only relevant to subsequent owners of the Land. The friend is bound under the basic rule of priority as the friend is a donee. The buyer and the buyer's daughter will not be bound. The buyer is a purchaser for valuable consideration and therefore s 29 LRA 2002 will apply. Because the man has failed to protect the interest in accordance with the relevant registration rule, the buyer will not be bound by it. Although the buyer's daughter is a donee, rather than a purchaser for valuable consideration, and the basic rule of priority will therefore apply, the man's interest has been 'lost' when the Land was sold to the buyer. It will not resurrect itself)

Answer 151

C) Transfer /grant of a legal estate / grant of a legal mortgage (This is correct. A registrable disposition is a transaction which must be completed by registration I.e., the transactions that must be completed by registration under LRA 2002, s 27(2) but it really is most applicable on transfer of a legal estate or the grant of a legal mortgage or legal lease)

Answer 152

A) Creation of a restrictive covenant (This is correct. A restrictive covenant is not an interest which must be registered as part of the process of creating it)

Answer 153

C) Land Registration Act 2002, s29(2)

Answer 154

C) Registrable dispositions (This is correct. Registrable dispositions are transactions which must be completed by registration. This includes creation of certain interests in land)

Answer 155

A) A purchaser for valuable consideration will take land free of any interest not properly protected

Answer 156

C) Interest in a trust of land (This is correct. Land Registration Act 2002, s33 specifically states trust interests cannot be protected by notice)

Answer 157

A) A restriction imposes conditions which must be complied with before a disposition of land can be registered (This is correct. A restriction does not make an interest binding as a new owner, it simply tells that person what to do in order to be able to complete the transaction)

Answer 158

B) A is bound by the covenant because Land Registration Act 2002, s28 applies (This is correct. A is a volunteer, or donee, which means that A has not paid for the land. Volunteers are always bound by pre-existing interests, irrespective of whether they have been protected or not)

Answer 159

B) Beneficial interest under a trust (This is correct. This type of interest is the only type of interest which can be overreached. This is because it is not an interest (unlike easements and covenants) which is intended to affect one piece of land indefinitely)

Answer 160

D) The purchaser must pay the purchase money to at least two trustees (This is correct. LPA 1925, s2, s27 state that capital money must be paid to at least two trustees for overreaching to take effect)

Answer 161

C) The interest remains in the land, but will not necessarily be binding (This is correct. If an interest is not overreached, it remains in the land. It is not automatically binding on a purchaser though, it will depend if the holder of the interest is in 'actual occupation')

Answer 162

B) Both registered and unregistered land (This is correct. You must keep the two systems of land ownership distinct. The rules that relate to each system do not relate to the other, they are completely separate systems. However, overreaching applies to a beneficial interest behind a trust (rather than one particular system.) The doctrine therefore applies to trusts of land over both registered and unregistered land)

Answer 163

B) City of London Building Society v Flegg (This is correct. As the mortgage money lent by the building society was paid to the Maxwell – Browns as legal trustees, the Fleggs’ interests were overreached and converted its interests in money)

Answer 164

A) An overriding interest is an interest which will bind a purchaser of the burdened land even though it does not appear on the register of title (This is correct. An overriding interest does not have to be registered in order to be binding)

Answer 165

E) A legal lease granted for a term of five years (Correct. Legal leases for a term of seven years or less do not need to be protected by registration in order to be enforceable)

Answer 166

C) A restrictive covenant (Correct. To be overriding interest under para 2, the holder must be in actual occupation of the burdened land. This is not the case for the holder of the benefit of a covenant)

Answer 167

A) Link Lending v Bustard (Correct. Temporary absence did not defeat actual occupation. This case is good illustration of how courts consider each case on its own facts)

Answer 168

C) The woman can enforce it against the buyer as it is an overriding interest (Correct. Schedule 3, para 3 states thatimplied legal easements can be overriding interests provided that they are obvious from a reasonable inspection of the burdened land (which this probably is) OR that they have been exercised within the 12 months immediately prior to the sale (which this definitely has been). Express legal easements are registrable disposition under s 27 LRA 2002)

Answer 169

C) Epitome of title (As the seller may have lots of old title deeds of varying degrees of usefulness relating to the property, s/he must only select those which contain relevant detail about the property and then make a copy of these documents. This bundle of relevant copy documents is called an epitome of title. On a sale, the seller is required to show the epitome of title to the buyer. This is called deducing title)

Answer 170

B) Equitable interests created post-1926 (The majority of equitable interests created after 1926 should be protected by the entry of a Land Charge against the name of the land owner at the time the interest is created. This was intended to be a 'stop-gap' system until all land became registered in England and Wales)

Answer 171

A) Equitable interests created pre-1926 (Equitable interests created prior to 1926 remain subject to the doctrine of notice, as do equitable interests under a trust that have not been overreached. For this reason, the doctrine of notice has fairly limited application nowadays)

Answer 172

B) No, because they are not a purchaser for value (This is correct. Equity's darling is a bona fide purchaser for value of a legal estate without notice. Someone who is gifted the land (or inherits it) could never be equity's darling because they are never a 'purchaser for value’)

Answer 173

A) Legal interests (Legal interests will 'bind the whole world.' This is the case even if the new owner does not know about the interest prior to the purchase and there is no evidence of it)

Answer 174

B) The name of the land owner at the time the interest is created (The land charge must be entered against the correct name(s) of the estate owner(s) at the time of the creation of the land charge: LCA 1972, s 3(1))

Answer 175

D) Puisne mortgage (A second legal mortgage is the only type of legal interest that can be protected by way of a Land Charge. It is the exception to the rule that Land Charges protect equitable interests only)

Answer 176

C) The buyer could still be bound by the equitable easement because the search was not against the correct name (The land charge must be entered against the correct name(s) of the estate owner(s) at the time of the creation of the land charge. This is the version of the name as it appears in the title deeds ie Peter Wells. The buyer has searched against the wrong name on the facts, and therefore could still be bound by the easement if it has been entered as a Land Charge against the name Peter Wells)

Answer 177

B) The new owner will be bound by the estate contract because it is not a purchaser for value (The agreement for lease, as an estate contract, should be protected by a Class C (iv) Land Charge under the LCA 1972. Failure to do this means that it will not be binding on a purchaser for value. However, the new owner is not a purchaser for value, it has inherited the freehold estate. For this reason, the new owner will be bound by the equitable interest. Notice is irrelevant as the estate contract was created after 1926)

Answer 178

B) Interest in a trust of land that has not been overreached (An equitable interest in trust of land cannot be protected by way of a Land Charge. If such an interest has not been overreached, the interest will be binding unless the purchaser is 'equity's darling’)

Answer 179

A) A bona fide purchaser for value of a legal estate without notice ('Equity’s Darling' is a 'bona fide purchaser for value of a legal estate without notice' of the equitable interest)

Answer 180

A) A good faith buyer who pays monetary consideration for a terms of years absolute and who instructs solicitors and inspects the land but finds no evidence of the equitable interest (This person is Equity's Darling. They are a good faith purchaser for value of a legal estate without notice. All elements are satisfied)

Answer 181

A) A buyer will be bound by those equitable interests it ought reasonably to have known about (LPA 1925, s 199(1)(ii)(a) requires a purchaser to act as a prudent person. A purchaser cannot attempt to avoid being bound by equitable interests by shutting its eyes and ears and thus not having actual notice. A purchaser will be fixed with constructive notice of an interest if it fails to pursue a line of enquiry which ought reasonably to have been made)

Answer 182

B) No, it cannot be revived so as to bind a subsequent buyer (An equitable interest is void against such a purchaser or someone claiming through them. It follows that once an equitable interest becomes void for want of notice, it cannot be revived so as to bind a subsequent buyer who does have notice of the equitable right)

Answer 183

C) Trusts of Land and Appointment of Trustees Act 1996 (This is correct. This statute deals with the powers and duties of trustees and beneficiaries and the resolution of disputes relating to trusts of land)

Answer 184

C) They are trustees acting in an administrative capacity (This is correct. The legal owners are named as the proprietors in the register, but have duties of trusteeship. They have the power to sign transfer deeds, contracts and mortgage documents but they hold the property on trust for the beneficiaries)

Answer 185

A) Yes, a trust is automatically imposed. A and B hold the property on trust for themselves. They are both the legal and equitable owners (This is correct. Whenever land is co-owned, as it is here (by A and B) a trust is automatically imposed. Here, the legal and equitable title is very simple and may be exactly the same. It does not matter. A trust still exists)

Answer 186

C) A holds the property on resulting trust for A and B (This is correct. Where, in a non-domestic context, someone makes a direct contribution to the purchase price, a resulting trust is implied to reflect their contribution)

Answer 187

C) The declaration of trust must be evidenced in writing signed by the person creating the trust (This is correct: Law of Property Act 1925, s 53(1)(b))

Answer 188

C) Unity of possession (This is correct. Without unity of possession, there is no co-ownership)

Answer 189

D) When a joint tenant dies, that person’s notional interest immediately accrues to the surviving joint tenants (This is correct. Joint tenants are viewed as a single entity and therefore do not have a distinct ‘share’ of the property. Instead they have a notional interest which disappears on their death meaning the property accrues to the surviving joint tenants)

Answer 190

C) Where there have been unequal contributions to the purchase price (This is correct. This will be presumed in non-domestic cases only. The presumption can be rebutted by an express declaration of an equitable joint tenancy)

Answer 191

B) A distinct but undivided share in land (This is correct. A tenancy in common is a distinctly quantified share in the whole property, but the holder cannot say that any particular part is theirs: hence, ‘undivided’ share)

Answer 192

D) The co-owners’ interests must all take effect at the same time (This is correct. The interests must ‘vest’ at the same time)

Answer 193

B) It changes the basis on which the equitable title will be held in future (This is correct. Severance does not destroy co-ownership but simply changes the basis on which the parties hold the equitable interest in the future)

Answer 194

B) C continues as legal joint tenant but has 25% of the equitable title as tenant in common (This is correct. The legal joint tenancy cannot be severed. If the equitable joint tenancy is severed the holder takes an equal share as tenant in common, irrespective of the size of their initial contribution)

Answer 195

A) It will have no effect (This is correct. A will does not have any effect until after death by which time survivorship has operated)

Answer 196

B) A and B are now tenants in common as to 50% each (This is correct. When the joint tenancy was severed, A received an equal share irrespective of the size of A’s initial contribution: Goodman v Gallant)

Answer 197

D) C continues as legal joint tenant but has 25% of the equitable title as tenant in common (This is correct. The legal joint tenancy cannot be severed. If the equitable joint tenancy is severed the holder takes an equal share as tenant in common, irrespective of the size of their initial contribution)

Answer 198

A) An application to court for an order that the matrimonial home be sold immediately and the proceeds of sale split equally (Yes this is correct and is akin to the facts of Re Draper’s Conveyance [1969] where a divorce petition that had this wording was held to be enough to sever the joint tenancy)

Answer 199

B) The notice need not comply with any formalities (This is correct. No statutory formalities are prescribed)

Answer 200

B) On all equitable joint tenants (This is correct. The equitable joint tenants are the only people who will be affected by the severance and LPA 1925, s 36(2) specifically states that they must all be served)

Answer 201

C) A mortgage of an equitable interest (This is correct. A mortgage is an act of partial alienation because when the loan is repaid the owner will retain the equitable interest unencumbered)

Answer 202

A) The parties had negotiated on the basis that their assets including the house would be realised and divided (This is correct. The parties had always envisaged a split of the sale proceeds of the house and other assets and had conducted negotiations on that basis)

Answer 203

B) Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view (This is correct. The negotiations did not have any particular aim (unlike in Davis v Smith) and there was no evidence that there was no ‘mutual’ acceptance that Mrs Carpenter would hold tenancies in common. In that situation, the parties were not ‘mutually’ conducting themselves towards the same end)

Answer 204

A) An express or inferred agreement to change the basis on which co-ownership will continue (This is correct. Co-ownership does not end on severance of the joint tenancy: it continues on a different basis. An agreement to do this can be expressly stated, or (as in this case) inferred from what the parties said and did)

Answer 205

D) Anyone who has an interest in the land (This is correct. This means that legal trustees, beneficiaries, and secured creditors can all make applications)

Answer 206

B) None – the statute gives no indication of any factor having greater weight than the others (This is correct. There is nothing in TLATA 1996, s 15 which states that any factor is to be given greater weight than others)

Answer 207

A) Mortgage Corporation v Shaire (This is correct. The judge said that the law had changed with TLATA 1996 and all factors had to be weighed evenly)

Answer 208

B) Lease (A lease is an estate in the land, a recognised proprietary right to possess the land. One of the key features of a proprietary right is that it is capable of being enforced against third parties)

Answer 209

B) False (A certain term means you know the duration of the lease and when it will end. This is often evidenced by a fixed term. A fixed term can be as little as a day or as 1000 years, it is still certain and we know when it will end)

Answer 210

E) The document is a licence because there is no certain term (The document is a licence because the term is uncertain, and we do not know when it will end. There is no certain term. The fact that the document is labelled as a licence is inconclusive and will not be a determining feature. The courts would look at the substance of the document, rather than the label it is given)

Answer 211

E) The occupier will be able to recover possession of the office space because it has a proprietary right in the land under the lease (The occupier is a tenant. There is a certain term, the occupier has exclusive possession and the correct formalities have been complied with. It does not matter that the rent is ‘a peppercorn’ as a rent does not need to be payable for there to be a lease. As the occupier has a lease, it has a proprietary right in the land, the defining feature of which is that it is capable of being enforced against third parties i.e. the new freehold owner. For this reason, the tenant will be able to recover possession of the office space, it will not have to settle for damages)

Answer 212

C) The occupier has a licence because there is no exclusive possession (The occupier is a licensee only. There is a certain term, but the occupier does not have exclusive possession as it shares possession with the licensor – it cannot exclude the licensor from the premises. It makes no difference that the correct formalities have been complied with, the requirements of a lease have not been met)

Answer 213

A) False (This is correct. Although Lord Templeman indicated that payment of rent is essential in Street v Mountford [1985] AC 809, LPA 1925, s 205(1)(xxvii) makes it clear that rent is not essential. This was confirmed in the case of Ashburn Anstalt v Arnold [1989] Ch 1)

Answer 214

D) An express periodic tenancy of one year (The lease does not have a fixed term, it has a periodic term, which is determined by reference to have rent is calculated, which is ‘per annum’ on the facts i.e. yearly. It does not matter that it is payable monthly. The lease is written down, it is express on our facts)

Answer 215

D) An implied periodic tenancy of one year (The lease does not have a certain term. A term ‘for as long as the tenant is trading’ will fail for lack of certainty, we do not know how long this will be. However, because the tenant has moved in and is paying an annual rent, a periodic tenancy of one year will be implied)

Answer 216

C) The document is a lease because there is a fixed term (Although 5000 years is a very long time, the term is certain. We know when the lease will end. This is a fixed term)

Answer 217

A) False, the courts will always looks at the substance of a sharing clause (The courts will look at the substance of a sharing clause. Although such a clause does at first sight indicate there is no exclusive possession, because the occupier cannot exclude whoever the landlord can introduce, the courts will look at the substance of the arrangement and the reality of it, whether the clause is in fact a sham. If it is a sham, such a clause will not defeat exclusive possession)

Answer 218

C) Exclusive possession means the occupier is able to exclude everyone from the flat including the landlord (For there to be a lease the occupier must have exclusive possession, which is correctly defined by this statement)

Answer 219

E) There could be exclusive possession if the clause has never been exercised (The label of the document is inconclusive, the court will look at the substance of the agreement rather than the label. This means the court will also look at the reality of whether the clause has been exercised, or whether it is a sham clause. If the clause has never been exercised then this would indicate it is a sham clause and so there could still be exclusive possession)

Answer 220

D) A couple sharing a one-bedroomed flat and the landlord has a right to introduce others to share occupation (The courts will look at the reality of a situation, looking beyond the label. In doing this, the court would consider a number of factors, as laid down in A G Securities v Vaughan and Antoniades v Villiers both reported at [1990] 1 AC 417t. This includes the relationship between the occupiers and whether it would be appropriate to introduce another to share given the relationship. It would be an unlikely situation to introduce someone into a one bedroomed flat which is being occupied by a couple on the facts and this would indicate the clause could be a sham)

Answer 221

D) The landlord can relocate the occupier upon given notice (In Dresden Estates v Collinson [1988] 55 P & CR 47 a clause entitled the licensor to relocate the occupier was held to defeat exclusive possession)

Answer 222

D) There could be exclusive possession as access is restricted (Access by the landlord is restricted to only if there is an emergency. This is more of an acknowledgement by the licensor that there is exclusive possession (as it has to reserve this right) rather than a clause that will defeat it. The fact that the licensor retains a key is inconclusive, it is whether access is restricted or unrestricted which will be the determining feature)

Answer 223

C) The bargaining power between commercial entities tends to more equal (The courts are more prepared to accept the reality of the label 'licence' than they are in the residential context as there tends to be more equality in bargaining power, with commercial leases often negotiated and parties legally represented)

Answer 224

C) The case applies equally to business arrangements as to residential ones (A business tenant must also show they have a certain term and exclusive possession in order to show they have a lease, rather than a licence)

Answer 225

D) There could be exclusive possession if the clause has never been exercised (The label of the document is inconclusive, the court will look at the substance of the agreement rather than the label. This means the court will also look at the reality of whether the clause has been exercised, or whether it is a sham clause. If the clause has never been exercised then this would indicate it is a sham clause and so there could still be exclusive possession)

Answer 226

C) Unity of possession (All occupiers must be entitled to occupy the whole of the premises. No-one has exclusive use of any part. The occupiers could only ever be individual licensees sharing with other in this instance)

Answer 227

C) They will not have a joint tenancy and cannot hold a lease together. However, if they can individually show exclusive possession of part of the property, they may have individual leases of their own part (If it is found that the occupants do not have the four unities, they cannot have a joint tenancy. But if they can show that they each have exclusive possession of a part of the property then it is possible for them to have individual leases of their own part. If neither a joint tenancy nor an individual tenancy exists then the occupants can only be individual licensees sharing with each other)

Answer 228

C) All of the interests must derive from the same document or from separate but identical documents which are interdependent (As it was held in Antoniades v Villiers [1990] 1 AC 417, the occupiers need not sign the same document for there to be unity of title providing they sign identical documents that are interdependent)

Answer 229

C) All must have a leasehold interest for the same term under the same conditions and must be jointly liable for the rent (All the occupiers must be subject to the same terms/conditions of occupation and must hold the same interest in the land meaning the same lease term and restrictions. All the occupiers must also be jointly liable for the rent, meaning they are each fully liable for the whole rent, rather than just for a share of it)

Answer 230

A) No, as they do not have unity of time (In order for there to be unity of time, all of the interests must start at the same time, which is not the case here. If it is found that the occupants do not have the four unities, they cannot have a joint tenancy)

Answer 231

A) Payment of market rent (If there is a degree of formality to the occupation agreement and/or a rent is paid then this would evidence an intention to create legal relations between the parties)

Answer 232

A) The occupation is an act of generosity from a family member (In Facchini v Bryson [1952] 1 TLR 1386, Denning LJ set out the circumstances from which a lack of intention to create legal relations can be deduced, making an arrangement simply a licence. He said that where there is a family arrangement, an act of friendship or generosity, it can be presumed that there is a lack of such intention)

Answer 233

D) A teacher living in a house at the school in order to assist with boarding house duties (This teacher is living at the school for the 'better performance of his/her duties.' This is similar to Norris v Checksfield [1991] 1 WLR 1241 and would be classed as a service occupancy)

Answer 234

D) The occupation is an act of generosity (In Facchini v Bryson [1952] 1 TLR 1386, Denning LJ set out the circumstances from which a lack of intention to create legal relations can be deduced, making an arrangement simply a licence. He said that where there is a family arrangement, an act of friendship or generosity, it can be presumed that there is a lack of such intention. This presumption can be rebutted though, and just because an agreement is between family members/ friends, it does not mean it will not be a lease if there is a degree of formality to the arrangement / market rent is payable)

Answer 235

C) No formalities are required, and the lease does not need to be registered at the Land Registry (This lease would fall within the exception for short leases of three years or fewer (LPA 1925, s 54(2)) and need not therefore be created by deed or with any formality at all. The lease is at a market rent so the conditions in the section appear to be satisfied. There is no requirement to register legal leases of seven years or fewer. Such a lease will be an overriding interest under LRA 2002, sch 3 para 1)

Answer 236

A) A deed must be used but it need not be registered at the Land Registry (The lease must be created by deed (LPA 1925, s 52). There is no requirement to register legal leases of seven years or fewer. Such a lease will be an overriding interest under LRA 2002, sch 3 para 1)

Answer 237

D) A landlord and tenant agree to the grant of a lease at the advertised market rent of £5000 per annum. The tenant moves in and pays the rent by monthly instalments (This is a yearly periodic tenancy that has been created on the facts – the tenant has moved in and is paying an annual rent. The term is regarded as being of one year. There is no indication that any premium was payable by the tenant and a market rent is being paid. The conditions in LPA 1925, s 54(2) have therefore been satisfied)

Answer 238

A) Yes, as the seven-year lease does not need to be registered and is an overriding interest (LRA 2002 , schedule 3 para 1) (A lease of seven years or fewer must be created by deed, but need not be registered. It is binding on a new freehold owner as an overriding interest)

Answer 239

A) Certainty of term, exclusive possession and the correct formalities

Answer 240

C) A list of set clauses at the front of a lease which help to speed up registration of registrable leases at the Land Registry

Answer 241

A) A landlord’s covenant not to interfere with the tenant’s possession or enjoyment of the property during the term of the lease

Answer 242

B) Payment of rent, payment of service charge, use of premises, covenant against assignment and subletting (Correct. This is usual tenant covenants contained in a lease i.e. restrictions on what the tenant can/cannot do with the premises and promises it makes to the landlord)

Answer 243

C) Although the detailed provisions have changed, the fundamental rationale remains the same (Correct. There have changes to the detail of the Act, but the fundamental rationale remains the same)

Answer 244

D) Security of tenure provides the landlord with greater flexibility over its own property (Correct. This is not a benefit - the landlord is more restricted in its use of the property)

Answer 245

C) It is administratively simpler (Correct. This is not a good reason - it is more complex to deal with a protected tenancy)

Answer 246

C) A monthly tenancy for a shop with a flat above it (Correct. A periodic tenancy can qualify for security of tenancy. The flat does not prevent the premises from qualifying as it is a subsidiary residential use)

Answer 247

B) The tenancy does not have security of tenure under the Landlord and Tenant Act 1954 because it is an agricultural tenancy (Correct. As an agricultural tenancy it would not qualify for security of tenure under the Landlord and Tenant Act 1954. It may qualify for a different type of security of tenure under the agricultural tenancy regime, but that is beyond the scope of this course)

Answer 248

E) A statutory declaration and reference to both the notice and statutory declaration in the lease itself (Correct. As 14 days have not elapsed since the landlord's notice, a statutory declaration is required. It is also necessary to refer to both notice and statutory declaration in the lease itself)

Answer 249

A) The lease contains an absolute covenant against structural alterations and the tenant requests a one-off consent from the landlord to an extension affecting the structure of the property (Correct. This is an absolute covenant and the statute has no effect here. The landlord does not need to grant consent or act reasonably in considering the request)

Answer 250

B) The standard of repair is to keep the premises in the condition in which they would be kept by a reasonably minded owner, having regard to the character and type and age of the premises

Answer 251

D) It is an obligation to put the premises into repair at the beginning of the term if they are out of repair and to keep them in repair throughout the term of the lease (Correct. This obligation is therefore quite onerous if the premises are in a state of disrepair at the beginning of the lease term)

Answer 252

A) Qualified

Answer 253

B) The landlord has received a poor financial reference from the proposed assignee (Correct. The landlord has refused consent on the basis of the landlord/tenant relationship. This is entirely reasonable)

Answer 254

B) When the tenant sells the remainder of their lease to another party (Correct. This is very common in practice, especially where the lease is longer than 5-10 years)

Answer 255

C) The landlord refuses consent because the tenant has not reinstated the property to its original specification which was a condition of assignment set out in the lease when it was granted. However, the tenant has agreed to provide an authorised guarantee agreement to the landlord as required by the terms of the lease

Answer 256

D) A valid deed (Correct. LPA 1925, s 52 requires a deed to be used to transfer a legal estate in land. This applies even if the lease has been created under LPA 1925, s 54(2) (i.e. with no formalities))

Answer 257

C) A landlord's consent is unreasonably withheld if the refusal is designed to achieve a collateral purpose unconnected with the landlord and tenant relationship, and the burden of proving that a refusal of consent is reasonable is on the landlord

Answer 258

E) The landlord must give written consent within 28 days and is entitled to request additional information to enable them to make a decision. The landlord must provide written reasons if they refuse consent (Correct. This is as per Landlord and Tenant Act 1988, s 1(6))

Answer 259

D) A promise contained in a lease given by a landlord or a tenant

Answer 260

B) Old lease governed by the old system of rules (Correct. The lease was entered into prior to 1 January 1996. It is therefore an 'old lease' and is governed by the old rules, not the LTA 1995. Though, as you will see, the LTA 1995 has some provisions that apply retrospectively to both old and new leases)

Answer 261

D) The landlord may pursue the tenant, Assignee 1 or Assignee 2 for a remedy for the breaches of covenant (Correct. The burden of the tenant’s covenants passes to Assignee 2 under the LTA 1995, s 3. Assignee 1 has made an excluded assignment under the LTA 1995, s 11. Assignee 1 is therefore not automatically released from liability under the LTA 1995, s 5. Consequently, the AGA entered into by the tenant cannot fall away because the tenant’s immediate assignee remains liable for the tenant’s covenants (as per the LTA 1995, ss 11(2) and 16(4)))

Answer 262

E) The landlord and the tenant (This is correct. Between the original landlord and original tenant there is a contractual relationship ie privity of contract exists here)

Answer 263

B) The tenant was automatically released from liability upon assignment of the lease to the assignee (Correct. This is because of the operation of the LTCA 1995, s 5)

Answer 264

C) The tenant is liable for the entire term of the lease (Correct. The original tenant has privity of contract and is liable for its assignees for the entire term of the lease)

Answer 265

E) The original tenant, Assignee 2, Assignee 3 (Correct. The original tenant is liable as it remains so for the entire term; Assignee 2 is liable for the entire term as it has made a direct covenant to that effect with the landlord; Assignee 3 has privity of estate with the landlord and is liable as the current tenant. Assignee 1 has neither privity of contract nor privity of estate)

Answer 266

A) The landlord should sue Assignee 1 for damages. Assignee 1 may try to recoup its losses via an express or common law indemnity from Assignee 2 (Correct. The tenant is no longer liable as the authorised guarantee agreement falls away under the LTA 1995, s 16(4) when Assignee 1 assigns the lease. Assignee 1 is liable under its authorised guarantee agreement and could try to recoup any losses from Assignee 2 (if possible) if there is an express indemnity between them or via the common law rule from Moule v Garrett (1872))

Answer 267

D) The landlord may sue the subtenant for the breach of the user covenant and the tenant for the breach of the decorating covenant (Correct. The LTCA 1995, s 3(5) allows the landlord to sue a subtenant directly for breach of a restrictive covenant. The landlord would have to sue the tenant for the breach of the decorating covenant as this covenant is positive and is also in the headlease (as the sublease contains the same leasehold covenants as the headlease))

Answer 268

C) The landlord does not need to serve a notice on the former tenant under the LTA 1995, s 17. The former tenant may not apply for an overriding lease to maintain some control over the actions of the current tenant (Correct. The landlord is not suing the former tenant for a ‘fixed charge’ so there is no need to serve a notice under the LTA 1995, s 17, and the tenant may not therefore apply for an overriding lease)

Answer 269

A) The former tenant is liable for the increased amount of rent in the lease (Correct. This was a foreseen variation under the LTA 1995, s 18)

Answer 270

C) If the former tenant requests an overriding lease, the landlord is obliged to grant it. The overriding lease will last for the length of the original lease plus 3 days and contain the same covenants (Correct. This is set out in the LTA 1995, s 19)

Answer 271

B) The landlord must serve a notice on the former tenant under the LTA 1995, s 17. The former tenant may then apply for an overriding lease to maintain some control over the actions of the current tenant (Correct. The landlord is suing the former tenant for a ‘fixed charge’ so must serve a notice under the LTA 1995, s 17, and the tenant may then apply for an overriding lease)

Answer 272

C) Damages (Correct. A landlord is extremely unlikely to be awarded any other remedy by the court. This is the best remedy for a landlord to pursue in the circumstances)

Answer 273

C) Specific performance (Correct. This remedy is not appropriate in the event of non payment of a rent covenant)

Answer 274

A) Seven days’ notice served on a commercial tenant that the landlord is going to seize goods from the leasehold property because of a failure to pay rent

Answer 275

A) When either a landlord or a tenant is allowed by the lease to bring the lease to a premature end (Correct. A break clause may allow the landlord or the tenant or both parties to bring the lease to a premature end)

Answer 276

A) Half a year’s notice (Correct. It is necessary to serve at least half a year’s notice to end an annual periodic tenancy)

Answer 277

A) Forfeiture (Correct. This is the procedure to follow when a landlord is looking to terminate a lease early for breach of a tenant covenant)

Answer 278

A) The landlord may not forfeit the lease as the agent (who acts for the landlord) has waived the right to forfeit. The landlord’s right to forfeit will arise in the subsequent month if no rent demand is sent out for that month’s rent payment (Correct. This is a waiver. The landlord had knowledge of the breach and the agent, who acts for the landlord, has acted unequivocally by sending out a rent demand for next month’s rent. This is a non-continuing breach; however, the right to forfeit may arise again in the subsequent month if there is a breach of the next rent covenant)

Answer 279

C) In the case of business premises, a landlord may forfeit by either peaceable re-entry or by court order (Correct. In the case of residential or mixed use premises however, a landlord may only forfeit by court order)

Answer 280

B) A right to forfeit for non-payment of rent is implied into an equitable lease (Correct. A right to forfeit (for non-payment of rent) is implied into equitable leases only. In legal leases the right to forfeit for any breach of covenant must be expressly reserved)

Answer 281

E) Subletting the property without the landlord’s consent. (Correct. This is a breach of covenant that can only be committed once and cannot be undone)

Answer 282

A) The landlord must make a formal demand for the rent due on the day when it becomes payable unless the lease waives this requirement (Correct. A formal demand for the rent due must have been made unless the lease waives this requirement, which it usually does by expressing the rent as being payable 'whether formally demanded or not')

Answer 283

A) The tenant may be granted relief after the date of the court order if all the arrears and costs are paid (Correct. The court has a discretion to grant relief even after it has made an order to forfeit the lease on condition that all arrears and costs are paid)

Answer 284

B) The tenant may be granted relief after the date of the peaceable re-entry if all the arrears and costs are paid (Correct. The court has an inherent equitable jurisdiction to grant relief to the tenant; this may even be some time after the landlord has forfeited the lease)

Answer 285

B) Where there has been a breach of any covenant other then the covenant to pay rent (This is correct. Whenever there has been a breach of a covenant other than the covenant to pay rent, the landlord must serve a s 146 notice on the tenant if it wishes to forfeit the lease. This applies regardless of whether the breach is capable of remedy or not. Note, there is additional protection if the breach is of a repair covenant. The landlord (in addition to serving the s 146 notice) must also inform the tenant of its rights (under the Leasehold Property (Repairs) Act 1938) to serve a counter notice within 28 days. If the tenant serves a counter notice, the landlord cannot proceed to claim forfeiture or damages without first obtaining the lease of the court)

Answer 286

D) Subletting in breach of covenant (Correct. This is a breach of covenant that can only be committed once and cannot be undone. It is unlikely to be capable of remedy)

Answer 287

B) Your client should accept the lease because it would enable it to recover use of the right to use the site if Waste Limited subsequently tried to revoke the right (This is correct. A lease is a proprietary right in the land. This means it is enforceable in rem, the right can be recovered. A licence is a personal right, which means the right cannot be recovered if Waste subsequently tried to revoke it, because a personal right is enforceable in personam)

Answer 288

B) The document is invalid because it does not comply with the requirements for a land contract (This is correct. A contract for the sale of land must comply with LP(MP)A 1989, s 2; it must be in writing, contain all the agreed terms and be signed by both parties. The document is not a valid contract as it has not been signed by both the buyer and the seller. There is no valid deed as the document has not been intended as a 'deed' or delivered. Further, the parties are trying to enter into an contract, rather than the actual transfer of the land. If this had been validly created, it would grant the buyer an equitable interest in the land called an 'estate contract')

Answer 289

D) An estate contract (This is correct. An estate contract is a contractual right to an estate in the land. Here, your client has a contract for a leasehold estate. It has been validly created as it complies with LP(MP)A 1989, s 2)

Answer 290

D) Your client is likely to be successful as the shop owner is trespassing into your client's lower airspace (This is correct. A freehold estate includes the ‘lower’ airspace. This is defined in Bernstein v Skyviews [1978] as the height which is necessary for the ordinary use and enjoyment of the land. The ordinary use and enjoyment of this land would include the peaceful enjoyment of the roof terrace)

Answer 291

E) The summer house is a moveable structure (This is correct. After considering the degree of annexation and purpose of annexation tests, if the summer house can be moved or removed without being damaged or destroyed then a court is likely to hold it is a chattel as per the case of Elitestone v Morris (1997))

Answer 292

A) The client holds the legal title but it will revert back to the seller if not registered within two months (This is correct. The transfer of the unregistered freehold has been effected by deed so the legal title passes to the client on completion, who then has two months to register the land for the first time. See ss 4, 6 and 7 Land Registration Act 2002)

Answer 293

B) The transfer will not take effect at law until title is registered with the Land Registry (This is the best answer. The transfer must be completed by registration to take effect at law. See LRA 2002, s27(2)(a) and s27 (1))

Answer 294

D) The borrower has granted an equitable mortgage. Equity will recognise the 'failed legal mortgage' as a 'contract to grant a legal mortgage' (This is correct. Although a valid deed has been created on the facts - the document complies with LP(MP)A 1989, s 1 - it has not been registered by the lender. No valid legal mortgage has therefore been created on the facts. Equity will, however, recognise this an equitable mortgage in the circumstances. The document complies with LP(MP)A 1989, s 2 and equity will therefore recognise it as a 'contract to grant a legal mortgage'. An equitable mortgage does not need to be registered to be validly created)

Answer 295

E) The land is a leasehold estate, the borrower is a residential tenant and the loan is to pay for the extension of the leasehold term (This is correct and the facts are akin to the case of Cityland v Dabrah (1968). As with this case, if the property is a leasehold and the borrower is a residential tenant who needs the money to extend the length of the lease, there is a risk that the lender could take advantage of the borrower’s circumstances and impose a higher interest rate. The borrower is more likely to agree to unconscionable terms to ensure the loan is made)

Answer 296

B) The lender would not be put on enquiry of undue influence because the loan is for the joint benefit of the couple (This is correct. The lender would not be put on enquiry of undue influence because the loan is for the joint benefit of the couple. In CIBC Mortgages plc v Pitt the House of Lords confirmed that a lender would not be put on notice that there is a risk of undue influence where a transaction is ostensibly for a couple’s joint benefit, as it is on the facts here)

Answer 297

A) The lender can sell the property as the power of sale has arisen and has become exercisable on the facts (This is correct: if there is no express power of sale in a mortgage deed (as here) then the statutory provisions in LPA 1925 apply and s 101 will give the lender such a right in a legal mortgage. The right has arisen as one instalment of capital became due as soon as one payment had been missed: Payne v Cardiff; and the right is exercisable as some interest has been in arrears for two months: LPA 1925, s 103(ii). As the right has become exercisable due to the missed interest repayments, there is therefore no need for the lender to serve a 3 month written warning/notice of the sale. The legal date for redemption, which is the earliest date on which the borrower can redeem the mortgage, has nothing to do with the lender’s right to sell)

Answer 298

B) The borrower has granted an equitable mortgage. Equity will recognise the 'failed legal mortgage' as a 'contract to grant a legal mortgage' (This is correct. Although a valid deed has been created on the facts - the document complies with LP(MP)A 1989, s 1 - it has not been registered by the lender. No valid legal mortgage has therefore been created on the facts. Equity will, however, recognise this an equitable mortgage in the circumstances. The document complies with LP(MP)A 1989, s 2 and equity will therefore recognise it as a 'contract to grant a legal mortgage'. An equitable mortgage does not need to be registered to be validly created)

Answer 299

C) Term (i) is an enforceable collateral advantage but term (ii) is inconsistent with the right to redeem the mortgage (This is correct. Term (i) is a collateral advantage but as it expires at the end of the mortgage term and as long as it is not onerous or in the nature of a penalty, it will be upheld by the court as in the case of Biggs v Hoddinott. Term (ii) gives the lender the option to purchase the freehold at any time during the term and is likely to be struck out as in the case of Samuel v Jarrah Timber and Wood Paving Corporation Limited)

Answer 300

D) The lender should apply for a court order to obtain possession and then sell the property. However, the mortgagor may apply to have the possession order postponed (This is correct and is the best answer. It is advisable for the lender to apply for an order for possession, rather than exercising self-help and it is true that the mortgagor can apply to have the possession order postponed under section 36 Administration of Justice Act 1970. The other options are less correct because possession through self-help is rarely if ever advisable with regard to residential property, the Administration of Justice Act 1970 would apply here as the mortgaged property is a dwelling, and the facts indicate that the power of sale has arisen and is exercisable (in addition to the fact that it would not make sense to appoint a receiver here))

Answer 301

E) The tenant can park their car by reason of an implied equitable easement (This is the correct answer. Where an estate is transferred or granted to a person for a particular purpose, and that purpose can only be realised if the transferee or grantee can exercise an easement over land retained by the transferor or grantor, that easement will be implied by reason of common intention: Wong v Beaumont [1965] and Donovan v Rana [2014] EWCA Civ 99. Since the tenant can only use the southern plot for the specified purpose if it is able to park on the northern plot, an easement of parking will be implied. Implied easements derive their legal or equitable status from the transaction into which they are implied. Since the tenant acquired an equitable lease (arising by reason of the specifically enforceable contract to grant a lease: R v Tower Hamlets LBC ex parte Von Goetz [1999] QB 1019), any easements implied into that lease would be equitable)

Answer 302

A) The woman cannot claim an easement of light as there is no defined aperture in a garden (This is correct. A right to light is one of a few recognised negative easements - it is not a 'new' negative easement, which the court will not recognise. However, there is no general right to light. A right to light is an easement that gives a landowner the right to receive light through defined apertures in buildings or on their land. There is not a defined aperture in the woman's garden to through which the right to light could be claimed on the facts, the women is just trying to claim a general right)

Answer 303

C) The farmer has not acquired an easement (This is correct. This is an attempted reservation. There is no mention of the right to use the drains in the lease, so it cannot be an express easement. The only methods of implied acquisition available for reservations are: necessity and common intention. Necessity will not apply - necessity is only applicable to rights of way where there is no other means of access to the land. The courts will only allow an easement of common intention in a reservation situation if there is no other possible interpretation of the facts (Peckham v Ellison; Re Webb’s Lease). Here, the farmer can use its retained land without the drainage right and had two opportunities to reserve this right (in the first and second leases) (Yeung v Patel) so the court is unlikely to imply this reservation)

Answer 304

C) The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed (This is correct. The right is not capable of being an easement because it grants exclusive possession to the dominant land owner. The tenant is using all of the available space in the shed so the landowner cannot make any reasonable use of it (Batchelor v Marlow [2003] 1 WLR 764). In addition, the landowner does not 'retain possession or control' of the shed (the test suggested by Moncrieff v Jamieson [2007] UKHL 42) as the tenant locks the shed, which the landowner does not have a key for. In order for a right to be capable of being an easement it must satisfy the requirements established in Re Ellenborough Park [1955] EWCA Civ. If the right does not satisfy any of these requirements, it is not capable of being an easement and will be merely a personal permission (a licence) rather than a proprietary right in the land, which an easement it. Even if a right satisfies the requirements of an easement laid down in Re Ellenborough Park, the right can be defeated (i.e. will not be an easement) if it requires payment by the servient land owner, grants exclusive possession to the dominant land owner or requires permission from the servient land owner in order to be exercised. If a right is capable of being an easement then you then need to consider if it has been acquired (expressly or impliedly) as an easement on the facts)

Answer 305

C) The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925 (This is correct. the tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925. On the grant of the second 5 year lease, the informal permission to use the garden is upgraded to an easement and implied into this lease. The facts are similar to Wright v Macadam [1949] 2 KB 744, which demonstrates this mode of acquisition. An easement can be acquired expressly or impliedly. You should consider first if there has been express acquisition – is the easement written down and does it comply with the necessary formalities? If not, consider if the circumstances mean the easement could have been acquired impliedly by one of the recognised modes. Certain modes of implied acquisition only apply if it is a grant, rather than a reservation, situation. It is therefore important that you understand not only the different modes of acquisition, but also the distinction between reservation and grant)

Answer 306

D) The covenant can be enforced against the friend because the burden of the covenant will pass under the doctrine of mutual benefit and burden (This is correct. The covenant is likely to pass to the friend under the rule in Halsall v Brizell [1957] as there is a mutual burden (to contribute towards the maintenance costs) and benefit (use of the garage). As per Rhone v Stephens [1994], there is a correlation between the benefit and burden and the benefit and burden as conferred in the same transaction (Davies v Jones [2009]). There is a genuine choice whether to accept the benefit of the right to park (Thamesmead Town Ltd v Allotey (1998)) as the friend could park on the next street instead. This exception to the general rule that the burden will not pass at common law (Austerberry) can therefore be applied on the facts and used by the lawyer to enforce the covenant against the friend. The rule in Tulk v Moxhay cannot be used to pass the burden of the covenant in equity as the covenant is positive)

Answer 307

A) The tenant will be able to enforce the covenant against the man providing the covenant is deemed to touch and concern the land (This is the correct answer. Provided that the covenant is deemed to touch and concern the land, this will satisfy the rules for an implied passing of the benefit at common law under P&A Swift Investments v Combined English Stores. The other conditions of P&A Swift will be satisfied because if there is no express wording showing an intention for the parties to pass the benefit to successors, s78 Law of Property Act 1925 will imply this intention. Further, both the covenantee and their successor will also hold legal estates in land, as the woman owned the freehold and the tenant has a legal lease. Smith & Snipes Hall Farm v River Douglas Catchment Board confirms that different estates are acceptable)

Answer 308

B) The burden of the covenant will not pass because the new owner had no notice of the covenant (This is correct. As House 2 is registered land, the man should have protected the covenant by the entry of a notice on the charges register of House 2 (s32 LRA 2002). This did not happen at the time the covenants were entered into. Therefore, the new owner, as a purchaser for valuable consideration of House 2, takes free of the unprotected covenant (s29(1) LRA 2002). The other answers are incorrect because the covenant is actually overall negative with a positive aspect (following Powell v Hemsley) and it does touch and concern the dominant land since restricting building on your neighbour’s land will protect the view from the dominant land thereby preserving its value, quality etc. It is incorrect to assert that the dominant and servient land are not sufficiently proximate since House 1 and House 2 are adjoining properties. There is also express wording here that shows that the original parties (the man and woman) did intend the burden of this covenant to run with House 2, so it is incorrect to state that the original parties did not intend the burden to run)

Answer 309

E) The covenant is a mixed covenant. It cannot be split and is overall positive (This is correct. Applying the ‘hand-in-pocket’ test (Haywood v Brunswick Permanent Benefit Building Society [1881] 8 QBD 403), the obligation to paint the windows requires money and time to be spent. The part of the covenant requiring the buyer to 'only use colours approved by the landowner' is restrictive and therefore negative - this part of the covenant can be complied with by inaction. The negative element cannot, however, stand alone and therefore Powell v Hemsley [1909] 1 Ch. 680 applies and the covenant is seen as one obligation with a condition attached. The main obligation is positive and the covenant is therefore seen as an overall positive covenant)

Answer 310

E) The benefit has passed by statutory annexation (This is the best answer. Section 78(1) Law of Property Act 1925 serves to annex the benefit of the covenant, as long as the parties have not expressly excluded s78, which there is no indication of on the facts. The other answers are incorrect because there is no evidence that your client assigned the benefit of the covenant to the new owner; the wording of the covenant relates to the burden rather than the benefit so there was no express annexation and there is no evidence of a scheme of development. Further, implied assignment is not a means of passing the benefit in equity, it is a means of passing the benefit at common law)

Answer 311

E) The neighbour should protect the right by the entry of a notice on the charges register of the Property **The neighbour has an inherently equitable easement over registered land- it is an easement for an uncertain term, so can only take effect in equity (s 1(3) LPA 1925). The easement has been properly created in accordance with s 53(1)(a) LPA 1925 and does not need to be registered in order to be validly created. To bind a purchaser for valuable consideration, this type of easement should be protected by entering a section 32 Land Registration Act 2002 notice on the charges register of the Property.**

Answer 312

C) An entry relating to an easement in the property register (This is correct. A right of way would be an easement. You are told the land has benefit of this right, rather than the burden. Interests that benefit a piece of registered land are found in the property register)

Answer 313

E) You need to ensure the purchase monies are paid to both the man and the woman so that overreaching occurs (This is correct. The facts indicate that the man has an equitable interest in a trust of the land that arose impliedly due to his contribution to the purchase price. Ideally, this would be protected by the entry of a restriction in the proprietorship register to trigger overreaching. It is not clear if this has been done. Regardless, you need to ensure the purchase monies are paid to both the man and the woman otherwise your client will be bound by the equitable interest if the man is in 'actual occupation' of the land, which the facts indicate he might be)

Answer 314

B) Yes, your client is bound under the basic rule of priority (This is correct. Your client is not a purchaser for value, they are a donee - they were gifted the land. Therefore, they will be bound by the option to purchase, which is a form of estate contract. The estate contract is an equitable interest in the land. It has been validly created as it complies with LP(MP)A 1989, s 2 - it is in writing and signed by both parties (the neighbour and the parent) and there is nothing to indicate that all the terms are not contained. An estate contract over registered land should be protected by a notice in the charges register of the burdened land (LRA 2002, s 32) otherwise it will not bind a purchaser for value. However, your client is not a purchaser for value on the fact so will still be bound (LRA 2002, s 28) under the normal rules of priority)

Answer 315

D) Yes, your client will be bound because the person is in actual occupation of the land (This is correct. The person has an equitable interest in a trust of land that arose impliedly by virtue of their contribution to the purchase price (LPA 1925, s 53(2)). This interest has not been overreached because the monies were paid to a 'sole legal owner.' The persons interest therefore remains in the land. It will be binding on your client because they will be deemed to be in 'actual occupation'. Although clearly temporaily absence, their belongings remained and there was a clear intention to return)

Answer 316

C) The interest must be protected by a land charge to bind future purchasers for valuable consideration (This is correct. You are told on the facts the land is unregistered. This is a second legal mortgage - a puisne mortgage - and must be protected by a Class C(i) land charge to bind a purchaser for valuable consideration of any interest in the land. See s2(4)(i) and s4(5) Land Charges Act 1972. If this were a first legal mortgage over unregistered land, it would be a trigger for first registration of the land (s 4 LRA 2002). If this second legal mortgage were granted over registered land, it would need to be substantially registered in order to take effect as a legal interest)

Answer 317

C) The solicitor will need to review a search carried out of the Land Charges Register, and investigate the possibility of interests that are subject to the doctrine of notice (This is the correct answer. Title to unregistered land has no register at the Land Registry to review. As such, when investigating unregistered land, solicitors must investigate the possibility of any Land Charges that are registered on the Land Charges Register and will bind the land, but also consider whether there are any other interests (predominantly pre-1926 interests or beneficial interests under a trust that have not been overreached) that could also bind the property subject to the doctrine of notice)

Answer 318

E) The bank is bound by the interest because it had imputed notice of it (This is correct. The surveyor has actual notice, and the surveyor is the bank's agent. The bank will be bound by the actual or constructive notice of their agents, which is imputed notice. Overreaching has not occurred because the bank only paid the loan monies to the sole legal owner. It is therefore bound by the partner's equitable interest because it is not equity's darling)

Answer 319

B) Your client is not bound by the interest because it has been overreached (This is correct. Your client paid the money to two trustees, thus overreaching it and moving it into the sale proceeds. The couple, as trustees must pay the man the sum which represents the man's share of the land)

Answer 320

E) The right of way will be binding under the rule 'legal interests bind the world' (This is correct. A legal interest over unregistered land will be binding under the principle 'legal interests bind the world'. We know the right of way is a legal easement because it is granted for term equivalent to a freehold or leasehold estate (20 years - a certain term) and is granted by way of valid deed. If the easement was for an uncertain term or was granted by way of a failed deed, it could be equitable. In this situation, it would need to be protected by a land charge against the name of the grantor)

Answer 321

B) Given the nature of the property and purpose of the purchase, there is a presumption that the friends hold the property as tenants in common (This answer is correct as it states that the friends wish to use the property for business purposes. Equity is therefore likely to presume a tenancy in common. See cases such as [Lake v Craddock] [Stack v Dowden] and [Jones v Kernott] as to equitable presumptions commercial situations where there is no express declaration of trust or words of severance)

Answer 322

B) The issuing of proceedings may amount to severance of the equitable joint tenancy by written notice (This is correct. Whilst not definite, following (Re Drapers Conveyance) it is likely that the issuing of proceedings will amount to severance by written notice under s.36(2) of the Law of Property Act 1925. Although it may be possible to infer mutual agreement from the issuing of and engagement in legal proceedings (see Hunter v Babbage), here we do not know enough about the other partner's position to establish mutual agreement, implied or otherwise, to sever. Further, whilst the instruction of solicitors may a persuasive factor in establishing whether there is severance by mutual conduct, it is unlikely to be determining factor in its own right. If severance occurs, both parties will become tenants in common, it is not possible to have a single joint tenant)

Answer 323

D) The partner's equitable interest has been severed by partial alienation (This is correct. A mortgage of an equitable interest has been created on the facts. The necessary formalities for this mortgage are as per s. 53(1)(c) Law of Property Act 1925, which have been complied with on the facts (it does not matter that the lender has not signed the mortgage, it only needs to be signed by the grantor - the partner). Such a mortgage has the effect of severing the interest of the mortgagor in equity - it is an 'act operating on your own share', a form of partial alienation (First National Security v Hegarty [1985]))

Answer 324

C) B and D hold 75% as equitable joint tenants. C holds 25% as a tenant in common (This is correct. A died as an equitable joint tenant, and therefore the right of survivorship operated and A's interest in the property passed to the remaining joint tenants, B and D. C's interest had already been severed at this point. When C was declared bankrupt this automatically severed C's interest, which vested in C's trustee in bankruptcy. On severance, C got an equal share, which at the time was 25% (Goodman v Gallant). The subsequent death of A had no effect on this)

Answer 325

A) A, B and E (This is correct. Originally, the legal owners were A, B, D and E as joint tenants. C could not hold legal title as legal owners must be aged 18 or over. On D’s death, the rule of survivorship applies and the joint tenancy continues to be held by the survivors, A, B and E)

Answer 326

A) Severance has not occurred because the notice does not show a desire to sever with immediate effect (This is correct. The notice in writing must demonstrate an unequivocal and immediate intention to sever - Harris v Goddard [1983] 1 WLR 1203. Here the desire to sever does not show an intention to bring about the result immediately, it says for the property to be sold in a year's time. The letter would otherwise comply with the requirements of a 'notice in writing' - it is in writing, addressed to the other equitable joint tenants and correctly served on them at their place of abode. It does not matter that the letter is unsigned (Re Draper's Conveyance [1969]))

Answer 327

B) E and G hold the legal title and equitable titles as joint tenants (This is correct. The legal joint tenancy cannot be severed (Law of Property Act 1925, s 36(2), and E F and H have not reached a mutual agreement to sever the equitable joint tenancy: Burgess v Rawnsley as they had not reached the point where all joint tenants regarded one person’s share as separate. Their further deliberations need not necessarily involve severance. As F died as a legal and equitable joint tenant, survivorship applies meaning that the interest accrues to the survivors, E and G)

Answer 328

D) E’s application for an order for sale is likely to be refused by the court because C and D oppose the sale and the combined value of their interests is greater than E’s (This is correct. TLATA 1996, s 15(3) allows the court to take into account the circumstances and wishes of the beneficiaries aged 18 and over and give effect to the wishes of the majority by value. The interests of the bank will not weigh heavily as the payments are not in arrears and the bank will continue to be paid monthly instalments)

Answer 329

E) The company has an annual periodic tenancy (Correct answer: The fixed term is void for uncertainty, but because they go into possession and pay rent calculated on an annual basis, they have an implied annual periodic tenancy. The other options are incorrect. The periods (term) of an implied periodic tenancy depend on how the rent is calculated, not how it’s paid. The fixed term is void for uncertainty, so it cannot create a valid legal or equitable fixed term lease)

Answer 330

E) The occupier is a licensee because it does not have exclusive possession (Correct answer. Caselaw shows that a moving/relocation clause, and control by the landlord, are likely to preclude exclusive possession in a business context, so the best answer is that they are likely to have a licence and be a licensee. The other options are incorrect. It is not correct to advise that it is a licence just because it’s called a licence, or to advise that they are likely to have a lease just because it’s a business context. The lack of a fixed term does not make it a licence, because it could still be an implied periodic tenancy due to the weekly payment. There are no facts given that show the court will ignore the terms as a sham, the reality is that the relocation clause is exercised)

Answer 331

A) The occupier has a legal periodic tenancy (Correct. A monthly periodic tenancy will be implied by the common law from the monthly rent and the LPA 1925 s.54 (2) short lease exception applies, which means no formalities are required to create the lease. The other options are incorrect. A monthly periodic tenancy is implied by the common law, not equity, and doesn’t need formalities (if market rent) or a fixed term. The limited /restricted reservation of access indicates exclusive possession, and therefore a lease)

Answer 332

C) This is a joint lease because the man and woman have the four unities (This is correct. There is no indication that the man and woman do not have unity of possession. They have unity of interest as they both have a five year lease on the same terms with a joint obligation to pay £1000 rent; they have unity of title as they sign identical documents and they have unity of time as the interest of both started on June 7th. It is irrelevant that they signed the documents at different times. On the facts the the separate licence documents are likely to be read interdependently as per Antoniades v Villiers (1990))

Answer 333

B) The occupiers pay the same licence fee and their agreements started on the same day (This is correct. On these facts, the occupiers appear to have the four unities (possession, interest, title and time) as required by AG Securities v Vaughan (1990). On the facts, the separate licence agreements are likely to be read interdependently as per Antoniades v Villiers (1990). If the agreements are exactly the same, placing each occupier under the same terms, they will be considered to be 'artificially separate' as per Antoniades and this will not defeat the 4 unities from being present. The occupiers would be joint tenants of the property pursuant to a lease. If the occupier are employer and employee and the occupiers are required to live in the house to perfrom their employment duties, this would defeat a lease as it would be a service occupanies)

Answer 334

B) The occupier has a lease because the cleaning clause is a sham clause (This is correct. Sham clauses are those which owners of land may insert into a lease to make it look like a licence (defeating the requirement of exclusive possession) and to deny the occupier certain statutory rights which attach to a lease. The cleaning clause, if genuine, would defeat exclusive possession as it means the tenant is not able to exclude the landlord from the premises 'once every 2 days'. Whether the cleaning clause is a sham or not depends on whether it is being exercised by the owner of the registered freehold, amongst other factors. On the facts, the cleaning clause hasn't been exercised once in 2 years. The court would therefore ignore the clause. On the facts there is a certain term and nothing else to suggest the occupier doesn't have exclusive possession. The agreement has been created by deed, which are the correct formalities for a 4 year lease. The occupier would therefore have a lease)

Answer 335

E) The premises must be put into repair if they are not already and then kept in the condition in which they would be kept by a reasonably minded owner (This is correct. A covenant to 'keep' premises in repair can be very onerous if the premises are not in a good state of repair at the start of the lease, as a covenant to keep the premises in repair also entails an obligation to put them in repair first. Once in repair the Court of Appeal in Proudfoot v Hart (1890) made clear that the premises should be kept in the condition in which they would be kept by a reasonably minded owner, having regard to the character, type and age of the premises)

Answer 336

C) The investment company can sue the clothes retailer because it assigned the lease to the shoe shop without the investment company's consent (This is correct. There was an unauthorised assignment two years ago and the clothes shop would not have been automatically released from liability under s 5 LTCA 1995 (see s 11 LTCA 1995). The investment company can therefore still sue the clothes retailer for the shoe shop's breach even though the clothes retailer did not provide an authorised guarantee agreement. The other answers are incorrect because the clothes retailer is still liable for the shoe shop's breach even though it did not provide an authorised guarantee agreement (see above) and the breach does not need to involve a fixed charge for the clothes retailer to be liable (see s 5 LTCA 1995 and s 11 LTCA 1995). It is incorrect to argue the investment company does not have the benefit of the redecoration covenant, because the benefit will have passed to it under s 3 LTCA 1995 as the covenant is not expressed to be personal. Also, original tenant liablity only applies to old leases and this is a new lease on the facts)

Answer 337

D) The tenant is permitted to make the alterations providing they do not devalue the premises (This is correct. Unless the lease stipulates otherwise, which it does not on the facts, the tenant is free to carry out any alterations to the premises. This is only subject to the legal doctrine of waste, which prevents alterations which would devalue the premises)

Answer 338

D) The assignee only has the benefit of the covenants; the landlord and new owner have the burden of the covenants (The benefit of the covenants passes to the assignee under s 3 Landlord and Tenant (Covenants) Act 1995 and the tenant ceases to be entitled to the benefit under s 5(2)(b) Landlord and Tenant (Covenants) Act 1995. The burden of the landlord’s covenants passes to the new owner under s 3 Landlord and Tenant (Covenants) Act 1995. The burden also remains with the landlord until it applies to be released from the burden of the landlord’s covenants as per s 6(2)(a) Landlord and Tenant (Covenants) Act 1995)

Answer 339

B) The landlord is under a duty to give written consent / refusal, which it has not done in the circumstances (This is correct. On the facts, the landlord is in breach of this statutory duty. Although it has responded within a reasonable time (within 28 days) and its refusal is arguably reasonable, it has not given written reasons. The covenant is qualified. LTA 1927, s 19(1)(a) applies to this covenant, imposing an obligation on the landlord to act reasonably and not unreasonably withhold or delay its consent. The landlord has refused the request to assign on the basis that the assignee, the company, would compete with the Landlord's business. This has been held to be a reasonable reason to refuse consent. LTA 1988, s 1 also applies to this covenant (and generally all fully qualified covenants). It provides the landlord must give written consent within a reasonable time (unless it is reasonable to refuse) and written reasons must be provided)

Answer 340

E) The bank may be pursued by the landlord for the unpaid rent if there is a direct covenant between them (As the bank is an intermediate tenant, there is no privity of estate between the landlord and the bank as the bank is no longer the tenant. There is no privity of contract between the landlord and the bank unless they entered into a direct covenant, pursuant to which the landlord could sue the bank for a breach of covenant by the bank's successor in title. This is an old lease on the facts, so a direct covenant is in the only way in which the intermediate tenant could be liabile. If there is no direct covenant, the bank will not be liable)

Answer 341

A) The landlord can refuse consent or impose any condition on any consent in the circumstances (This is correct. The covenant is an absolute covenant against alterations. This means the landlord has total discretion whether to consent to the works or not. Statute (LTA 1927, s 19(2) specifically) does not apply to this covenant)

Answer 342

D) The premises must be put into repair if they are not already and then kept in the condition in which they would be kept by a reasonably minded owner (This is correct. A covenant to 'keep' premises in repair can be very onerous if the premises are not in a good state of repair at the start of the lease, as a covenant to keep the premises in repair also entails an obligation to put them in repair first. Once in repair the Court of Appeal in Proudfoot v Hart (1890) made clear that the premises should be kept in the condition in which they would be kept by a reasonably minded owner, having regard to the character, type and age of the premises)

Answer 343

C) The landlord is liable for the breach of covenant because the breach occurred prior to the sale of the reversion (This is a new lease and as per s 24(1) Landlord and Tenant (Covenants) Act 1995, a landlord is not released from liability for a breach of covenant occurring before the sale of the reversion. Even if the landlord had been released from liability in accordance with s 6 Landlord and Tenant (Covenants) Act 1995, s/he would not be released from liability in this case)

Answer 344

D) The landlord is not entitled to forfeit the lease because there is no express right to forfeit (This is correct. A legal lease, which the landlord and tenant have entered into on the facts, must contain an express right to forfeit in the event of tenant breach. A right to forfeit will not be applied on the facts. If there was a right to forfeit, the landlord would not have waived this on the facts as the rental demand is served before the landlord is aware of the breach. The landlord would need to serve a s 146 notice, but would not need to comply with the Leasehold Property (Repairs) Act 1938 as the lease was only granted for 2 years, so it would not apply)

Answer 345

C) The landlord should pursue a claim for damages for breach of repair against the tenant (This is correct and the best advice in the circumstances. The landlord does not wish to end the lease so forfeiture is not a good option. An injunction is not the appropriate remedy as it is an order which forces something to stop, which is not relevant to this breach. Specific performance is very rarely ordered against a tenant, so is not the best advice to the landlord. Finally, CRAR is only relevant where there is a beach of a rent covenant)

Answer 346

A) The lease has been surrendered (The is correct. Surrender is the handing back of the lease by the tenant to the landlord with the landlord's consent. This results in premature termination of the lease, which has occurred on the facts. A deed of surrender is often entered into and sometimes a surrender premium will be paid by the tenant to the landlord, which again is the case on the facts)

Answer 347

C) The landlord has waived its right to forfeit and it can never again forfeit for this specific breach (This is correct. The landlord's agents has sent out a rent demand. This is an acknowledgement of the continued existence of the lease and evidence of the landlord's intention that the lease should continue despite the breach. The breach (unauthorised subletting) is classed as a 'non-continuing' breach, which means waiver is permanent and it can never again forfeit for this specific breach. It does not matter that the waiver is inadvertent and that the agent was unaware of the breach)

Answer 348

B) The court will stay the proceedings in the circumstances (This is correct. If, on the landlord suing for possession, the tenant pays into court all arrears and costs before the trial, all further proceedings are stayed. This is the best option as the order has not yet been made)