Lecture 1 Ownership - Possession Flashcards
What is ownership/ possession
→ ownership aggregate of legal relations (powers)
→ but these can be limited by statute & others
What is ownership exclusion
→ you can exclude someone from your land
If someone comes on your land without your consent they are trespassing
What are the limits on ownership third party rights
mortgages: the banks owns your estate but you live in it,
Leases: an agreement with you & your landlord
covenants: you can’t run a business that will risk another persons land
easements
What is adverse possession
→ someone uses your property (as their own) for years on end
→ they can claim it as their own
→ if you used it for so long, it becomes yours
I
The concept of property ownership
(1) ownership is not simply possession, it is a bundle of rights
(2) an owner can alienate certain rights & retain others
(3) we therefore need to be able to identify rights & how they were created
(4) decide whether these rights have been transferred to another ( sometimes these pass with out the owners agreement )
(5) decide whether a purchaser is bound by the rights
what are the formalities for creating a legal estate LPA s52
conveyances to be by deed
(1) all conveyances of land or of any interest therein are void for the prupise of conveying or creating a legal estate unless made by deed
(2) this section does not apply to-
- (a) assents by a personal representative
- (b) disclaimers made in accordance with [F1 sections 178 to 180 or sections 315 to 319 of the insolvency act 1986], or not required to be evidenced in writing;
- (c) surrdenders by operation of law, including surrender which may, by law, be effected without writing
- (d) leases or tenancies or other assurances not required by law to be made in writing
what is meant by ‘convey’
↳the transfer of legal title of real property from one person to another
↳or the granting of an encumbrance such as a mortgage or a lien.
law of property (miscellaneous provisions) act 1989 s1
how do you create a deed?
an instrument shall not be a deed unless
- (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and
- (b) it is validly executed as a deed by that person or, as the case may be, one or more of those properties
[2A for the purposes of subsection (2)(a) an instrument shall not be taken to make it on its face that it is intended to be a deed because it is executed under seal.]
(3) An instrument is validly executed as a deed by an individual if, and only if–
(a) it is signed–
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attests the signature; and
(b) it is delivered as a deed…
(4) in subsections (2) and (3) above “sign”, in relation to an instrument, includes making ones mark on the instrument and “signature” is to be construed accordingly.
‘capable of exitisting at law’ also includes formalities of registration
what does a legal estate require
↳a deed which complies with the formalities of s1LP(MP) Act 1989 and the registeration formalities
↳if one of these elements is not complied with the estate will not exist in law but it may exist in equity
what are the formalities needed for creating a legal estate LPA 1925 s52
conveyances to be by deed
(1) all conveyances of land or of any interest therein are voild for the purpose of conveying or creating a legal estate unless made by deed
(2) this section does not apply to–
- (a) assents ny a personal representative
- (b) disclaimers made in accordance with [F1 sections 178 to 180 or sections 315 to 319 of the insolvency act 1986], or not required to be evidenced in writing
- (c) surrdeners by operation of law, including surrdenders which may, by law, be affected without writing
- (d) leases or tenancies or other assurances not required by law to be made in writing
what are the formalities in equity (LPA 1925 s53)
instruments required to be in writing
- (1) subject to the provision hereinafter contained with respect to the creation of instrests in land by parol
- (a) no interest in land can be created of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law
- (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will
- (c) disposition an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.
(2) this section does not affect the creation or operation of resulting, implied or constructive trusts
what do you need to know about creating a deed?
- to create or dispose of a legal estate (freehold/leasehold) it must be by deed (LRA 1925 s52)
- the deed must comply with the requirments of the LP (MP) A 1989 s1
- if the formalities are not complied with the estates my exist in equity
what is the LPA s54 (creation of interest in land by parol)
- all interest in land created by parol and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorised in writing, have, nowithstanding any considerations having been given for the same, the force and effect of interests at will only
- nothing in the foregoing provisions of this part of this act shall affect the creation by parol og leases taking effect in possession for a term not exceeding three years (whether or not the lesse is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine
how to create a lease by parol
- taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) [no greater than 3 years, in possession - not in the future]
-
at the best rent which can be reasonably obtained without taking a fine
best rent- the highest rent that can reasonably be expected by a landlord in the circumstances of a particular case (case law)
