LL

Question 1

What is the legal foundation upon which conveyancing stands?

Answer 1

A1: Land law is the legal foundation upon which conveyancing stands, involving the rules and principles of land ownership and the transfer of title to land.

Question 2

Q2: What are the two broad categories of property in English land law?

Answer 2

A2: The two broad categories of property are personal property and real property. Real property pertains to land or an interest in land, while personal property refers to movable items like cars or refrigerators.

Question 2

Q3: What significant changes occurred in English property law in 1925?

Answer 2

A3: In 1925, several key legal acts were introduced, including the Law of Property Act 1925, which provided key definitions for legal estates and interests, the Land Registration Act establishing the system of land registration, and the Land Charges Act 1925.

Question 3

Q4: What does the term ‘fixture’ refer to in the context of land law?

Answer 3

A4: A fixture refers to an item that is attached to the land or a building to such an extent that it becomes part of the land or building and passes automatically to the buyer upon sale of the property.

Question 4

Q5: What is the difference between fixtures and fittings, and why is it important?

Answer 4

A5: Fixtures are items that are attached to and become part of the land or building, passing automatically to the buyer upon sale. Fittings (or chattels) are personal property items that do not automatically pass with the sale unless specifically included in the contract. The distinction is crucial for determining what is included in a property sale.

Question 5

Q6: Describe the two tests used to determine whether an item is a fixture or a fitting.

Answer 5

A6: The two tests are the degree of annexation, which considers how attached an item is to the land or building, and the purpose of annexation, which looks at why the item was brought onto the land and whether it was intended as a permanent improvement.

Question 6

CORPOREAL
HEREDITAMENTS`

INCORPOREAL
HEREDITAMENTS

Answer 6

CORPOREAL
HEREDITAMENTS
* Surface of the land, buildings, parts of buildings, mines, minerals, trees, and plants
INCORPOREAL
HEREDITAMENTS
* Rights, easements, and rents

Question 7

TwO TESTS

Answer 7

TwO TESTS
* Degree of Annexation
- Greater attachment = fixture
- Easy to remove = fitting
* Purpose of Annexation
- Permanent improvement = fixture

EXAMP Tip:
part of the land or the buyer has a right to it or the like.

Question 8

TWO LEGAL ESTATES

Answer 8

TWO LEGAL ESTATES
* Freehold estate
- Fee simple absolute in possession
- Right to use indefinitely

• Leasehold estate
• Term of years absolute
• Fixed maximum duration

Question 9

Q2: Can you list the five legal interests recognized in land under the Law of Property Act, 1925?

Answer 9

A2: The five legal interests are mortgages, easements, rentcharges, profits a prendre, and rights of entry, often remembered by the mnemonic “MERRP.”

Question 9

Q1: What are the two legal estates in English land law?

Answer 9

A1: The two legal estates are freehold estates and leasehold estates.

Question 10

Q3: What is the difference between a freehold estate and a leasehold estate?

Answer 10

A3: A freehold estate (fee simple absolute in possession) is the right to use land indefinitely, while a leasehold estate (term of years absolute) is for a fixed duration.

Question 11

Q4: What is an equitable interest in land?

Answer 11

A4: An equitable interest in land arises when the formalities for creating a legal interest are not met but equity recognizes the intention of the parties, offering protection based on fairness.

Question 12

Q5: What are the formalities for creating a valid contract for the sale of land?

Answer 12

A5: A contract for the sale of land must be in writing, include the agreed terms, and be signed by all parties involved or by their authorized representatives.

Question 13

I think you’ll profit from the following question:
Which profit may be sold apart from the land?
* (A) A profit a prendre appurtenant
* (B) A profit a prendre in gross

Answer 13

• (B) A profit a prendre in gross

A profit a prendre in gross is not attached to the land, whilst a profit a prendre appurtenant is. This really is fun trivia that can make you sound more lawyer-like at cocktail parties. I don’t expect you to run into these as a day-one solicitor. Nevertheless, because it’s such an easy thing to test on, I think it’s something you need to commit to memory.

Question 14

What are the legal estates?

Answer 14

A and F

Freehold and Leasehold

(A) and (F) are correct. If you got this wrong, don’t feel bad. I led you down the garden path and then changed course - mostly to show you that you have to pay close attention and think hard about what is being asked in the exam. The question asks for the legal ESTATES. There are only two: freehold and leasehold. On the other hand, there are five legal INTERESTS - MERRP: Mortgages, Easements, Rentcharges, Rights of entry, and Profits a prendre. This is only terminology, but terminology is very important to solicitors. It’s our bread and butter.

Question 15

Valid Deed

Answer 15

Valid Deed
* In writing
* Intended to be a deed
* Executed as a deed
* Signed
* Witnessed
* Delivered

Question 16

Q2: What is an epitome of title, and why is it used?

Answer 16

A2: An epitome of title is a chronological list of title documents with copies attached, used to prove ownership without handing over original documents at the pre-contract stage.

Question 16

Q1: What is required to deduce title in the unregistered system of land ownership?

Answer 16

A1: To deduce title, the seller must produce a good root of title and demonstrate an unbroken chain of ownership for a minimum of 15 years through documentary evidence such as conveyances, deeds of gift, and mortgage deeds.

Question 17

Q3: How are legal and equitable interests distinguished in the context of unregistered land?

Answer 17

A3: Legal interests bind a buyer irrespective of notice, while equitable interests only bind a buyer if they had notice of the interest, typically through registration as a land charge or under the doctrine of notice.

Question 18

Q4: What role does the land charges register play in the unregistered system?

Answer 18

A4: The land charges register protects and reveals third-party equitable interests, making them binding on future landowners if properly registered against the owner’s name.

Question 19

Q5: How does adverse possession impact land ownership in the unregistered system?

Answer 19

A5: Adverse possession allows someone to acquire title to land after 12 years of unchallenged occupation, provided they can show actual, exclusive possession without the landowner’s permission.

Question 20

DEDUCING TITLE

Answer 20

DEDUCING TITLE
Seller proves ownership of land through documentary evidence

PROVING OWNERSHIP
Good root of title
Unbroken chain of ownership
Minimum period of 15 years

Question 21

How old must the good root of title be?

Answer 21

The good root of title must be at least 15 years old at the date of the contract in the context of unregistered land.

Question 21

Remember

Answer 21

are a conveyance on sale, a deed of gift, a mortgage deed, and an assent.

Question 22

For a bit of déjà vu all over again, why do we care whether an equitable interest is registered?

Answer 22

An equitable interest is binding on a third party only if they have notice of it. And registration constitutes notice, so a subsequent buyer of property subject to an equitable interest will be bound by that equitable interest if it is registered.

Question 23

On 1 May, you enter a contract with me to buy my house, which my family has owned for generations. Title to the house is, therefore, unregistered. We agree a completion date of 20 May. How can you protect yourself against me selling my house to someone else before our completion date?
O (A) Get me to promise not to.
O (B) Regsister the contract as a C(i) puisne mortgage land
charge.
* (C) Register the contract as a C(iv) estate contract land charge.
* (D) Register the contract as a D(ili) equitable easement.

Answer 23

(C) is correct. (A) is wrong - I’ve already made that promise by exchanging contracts with you. A second promise won’t provide you with any additional protection. (B) is wrong - remember, a puisne mortgage is a second or third or fourth or so on mortgage. That’s not what you have here: you are buying my house. (D) is wrong - firstly, because I haven’t talked about this yet, and I would never ask you about something I hadn’t explained! And secondly, because you aren’t taking an easement - you have a contract to buy my house.

Question 24

CLASSIFICATION OF LAND CHARGES

Answer 24

CLASSIFICATION OF LAND CHARGES
C(i) - puisne mortgage
C(iv) - estate contract
D(ii) - restrictive covenant
D(ili) - equitable easement
F - home occupation rights

Question 25

Thave decided to move to the south of France and leave my old life behind.
You have agreed to buy my house - a vast unregistered estate (nothing could be further from the truth, but let’s roll with it). For many years, my neighbour has been driving over my land to gain access to a road - for long enough to have gained a right to continue. And for long enough to create two very visible tyre tracks. Of course, my neighbour never thought to register an easement.
And you never ventured on that part of my vast estate. You pay me handsomely for my house, blissfully unaware of my neighbour’s use. Must you continue to allow the neighbour to drive across your land?
* Yes.
O No.

Answer 25

Yes. Although you acted in good faith and paid value, you will be subject to the neighbour’s interest because, had you physically inspected the land, you would have seen the tyre tracks, so the easement would have been obvious on a reasonably careful inspection of the land.

Question 25

Let’s go back to my vast, unregistered estate, which you bought from me and registered. Had you or your solicitor knocked on the door before we completed the sale, you would have discovered that I was not living there, but rather my tenant was. I had leased the estate to her a vear ago and there are four more years remaining on the lease. Her lease is not registered.
When can you move in?
* (A) Immediately, because you bought the house in good faith, and the lease is unregistered.
* (B) Immediately, because your interest as a purchaser will override the tenant’s interest. allowing vou to register vour ownership and override the lease.
* (C) In four years, because the lease will override your registered interest.

Answer 25

(C) is correct. This is a classic example of an interest that will override first registration. If someone else has a lease of less than seven years or a legal easement, or if there is a local land charge, or if there is an interest belonging to someone in actual occupation, that interest will override your first registration.

Answer 26

REGISTRATION OF TITLE
* Create register of title
- Property Register - address, estate, rights benefiting property
- Proprietorship Register - holder(s) of legal estate
- Charges Register - rights burdening property

Question 27

A pub is on land subject to a 99-year lease. The lease was entered on 1 June 1985. Yesterday, I leased the pub for 10 years (although I have an option to renew). At the end of the lease, the leasehold reverts to the original lessor.
Am I required to make a first registration?
O Yes
O NO

Answer 27

Yes, you are. If you got this correct, brilliant! If not, were you thrown off track when I mentioned the bit about the lease reverting? This was calculated to see if you really understand what I mean when I say leases of more than seven years. Questions on the exam - and indeed, leases you run into in practice - are likely to have similar obfuscating facts.

Question 28

FIRST REGISTRATION
* Required on triggering event
* After 1 December 1990
* Events:
- Conveyance
- Assent
- Deed of gift
- Grant/assignment of 7+ year
lease
* Register within 2 months of event

Question 29

CLASSES OF TITLE
* Title Absolute
- Best form of title, estate and all benefiting interests
* Qualified Title
- Title qualified in some way
* Possessory Title
- Based on possession, not documents
* Good Leasehold Title
No documents for landlord’s freehold title

Question 29

I acquired quite a few rights and interests in property yesterday. Which of the following can be registered at HMLR with their own title number?
(check all that apply)
* (A) I purchase the freehold of a house outright.
* (B) l enter into a five-year lease of a house in the Cotswolds.
* (C) I purchase a right to cut timber on a friend’s property in Surrey for the next 10 years.
* (D) My neighbour granted me and whoever owns my property in the future the right to fish in his pond.
* (E) I took a 10-year lease of a pub.

Answer 29

A, C and E

A - I purchased a freehold estate. This will be registered with its own title number.

E - A lease of more than seven years is substantively registerable with its own title number at HMLR.

Question 30

I have decided to move to the south of France and leave my old life behind. You have agreed to buy my house. As I purchased this house only five years ago, title is registered with HMLR. We complete the sale and I move on to a better life. You arrive at your new house with all your possessions and discover my tenant is living there. She tells you she leased the house for five years a year ago. You had checked the proprietorship register and there was no mention of this lease (this may sound familiar to you, as we discussed a similar situation in the previous module).
When can you move in?
* (A) Immediately, because you bought the house in good faith, and the lease is unregistered.
* (B) Immediately, because your interest as a purchaser will override the tenant’s interest, allowing you to register your ownership and override the lease.
* (C) In four years, because the lease is an overriding interest which is superior to your registered interest.

Answer 30

C

This is the same result as we reached in the similar situation on first registration, but the terminology is ever so slightly different (overriding interest instead of an interest that overrides). A lease of seven years is an overriding interest, as are behind the scenes beneficial interests.

Question 31

Mr. Bar and Mrs. Bri each own a cottage in Cornwall. However, as they have been busy running their company, neither has visited their respective cottage in 14 years.
Two homeless brothers saw Mr. Bar and Mrs. Bri leave their cottages 14 years ago, moved in, and made themselves at home. In a bit of ironic fate which only occurs in exam questions, each brother recently signed up for BARBRI’s SQE Prep course, and learned they could apply for ownership of the respective cottages. Mr. Bar’s cottage has belonged to his family for generations and its title is unregistered. Mrs. Bri, however, purchased her cottage in 2005. Mr. Bar and Mrs. Bri would both like to reclaim their cottages.
Who is likely to prevail in their attempt to reclaim?
* (A) Both are likely to prevail in their attempt to reclaim their respective cottages.
* (B) Mrs. Bri is likely to prevail in her attempt to reclaim her cottage, but Mr. Bar is unlikely to prevail.
* (C) Mr. Bar is likely to prevail in his attempt to reclaim his cottage, but Mrs. Bri is unlikely to prevail.
* (D) Neither is likely to prevail in their attempt to reclaim their respective cottages.

Answer 31

(B) is correct. This (rather strained) scenario highlights an important difference between registered and unregistered land. In both cases, a squatter may be able to gain title to land if they are in exclusive physical possession of the land without permission of the owner. In the case of unregistered land (like Mr. Bar’s), if the possession lasts more than 12 years, the squatter will generally prevail because the Limitation Act 1980 will prevent the owner from challenging the squatter’s claim. But in the case of registered land (since Mrs. Bri purchased her land after 1 December 1990, it must have been registered), the Limitation Act does not apply, and when the squatter applied for title (based on possession of more than 10 years), if the registered proprietor objects, the squatter’s claim will usually be rejected.

Question 32

How would the following right appear on a register of title?

1. A mortgage which was provided to the borrower to fund the purchase of the property.

Answer 32

A mortgage provided to the borrower to fund the purchase of the property would appear in the “Charges Register” section of the register of title. This section records financial charges and encumbrances against the property, including mortgages. The entry would typically detail the date of the mortgage, the party to whom the mortgage is owed (the lender), and any relevant terms or conditions associated with the mortgage agreement.

Question 33

How would the following right appear on a register of title?

2. A right of way over a driveway on the land for a neighbour’s benefit.

Answer 33

A right of way over a driveway on the land for a neighbor’s benefit would typically appear in the “Proprietorship Register” or more commonly in the “Charges Register” of the register of title, depending on whether it benefits the land or burdens it. If it’s a right benefiting the land, it might be noted in the “Proprietorship Register.” However, if it’s a right that burdens the land (granting a neighbor a right of way over it), it would more likely appear in the “Charges Register.”

This entry would detail the nature of the right, such as “right of way,” and specify the part of the land affected, in this case, the driveway. It might also reference any relevant documents that establish or elaborate on the right, such as a deed of grant.

Question 34

How would the following right appear on a register of title?

3. The behind-the-scenes beneficial interest of a person who had contributed towards the purchase of a property, but who was not on the legal title.

Answer 34

The behind-the-scenes beneficial interest of a person who contributed towards the purchase of a property but is not on the legal title is a matter of trust law and typically does not appear directly on the register of title at HM Land Registry. This type of interest is usually part of a trust arrangement, where the legal title is held by one or more persons (trustees) for the benefit of others (beneficiaries).

Since this beneficial interest arises from an equitable interest under a trust and not from a legal interest, it is generally not recorded in the Land Registry’s records. However, if the trustees wish to protect the beneficiary’s interest, they might enter a restriction in the “Proprietorship Register” of the title, indicating that any disposition by the proprietor (the legal owner) is subject to the consent of the trustees or must comply with the trust’s conditions. This restriction does not detail the beneficiary’s interest but serves to protect it by ensuring that the trust’s terms are considered in any future transactions.

Question 35

How would the following right appear on a register of title?

4. The occupation of a property by a wife who did not appear on the legal title, but who had contributed towards the purchase price of the property by her husband, who is the sole registered proprietor.

Answer 35

The occupation of a property by a wife who has contributed to the purchase price but is not on the legal title, with her husband as the sole registered proprietor, would not directly appear as a right on the register of title at HM Land Registry. However, her beneficial interest, arising from her financial contribution, would typically be protected by a trust of land, with her husband holding the property on trust for both of them.

To protect her interest, a restriction might be placed in the “Proprietorship Register” of the register of title. This restriction would not detail her beneficial interest explicitly but would indicate that no disposition by the sole proprietor (the husband) is to be registered without a certificate that written notice has been given to another person (such as the wife), who might have a beneficial interest under a trust.

This type of restriction serves to protect the wife’s beneficial interest by ensuring that her interest is acknowledged and considered in any future dealings with the property, despite her not being named as a legal owner on the title.

Answer 36

TRUST OF LAND
*
*
*
When 2 or more people acquire land together
Trustees
Holders of legal estate
Beneficiaries
- Holders of behind-the-scenes beneficial interest

Question 37

Q1: What automatically arises when two or more people acquire land together in English land law?

Answer 37

A1: A trust of land arises automatically under the Trusts of Land and Appointment of Trustees Act.

Question 38

Q2: What is the key characteristic of a joint tenancy in co-ownership?

Answer 38

A2: The key characteristic of a joint tenancy is the right of survivorship, meaning if one co-owner dies, their interest automatically passes to the surviving co-owners.

Question 39

Q3: How must the legal estate be held in a co-ownership situation?

Answer 39

A3: The legal estate must always be held as a joint tenancy, regardless of the number of owners or their contributions.

Question 40

Q4: What distinguishes a tenancy in common from a joint tenancy in co-ownership?

Answer 40

A4: In a tenancy in common, each co-owner has a specified share in the property, and there is no right of survivorship. Co-owners can leave their share to someone else in their will.

Question 41

Q5: What is overreaching and when does it apply in co-ownership?

Answer 41

A5: Overreaching is a mechanism that allows a buyer to acquire land free from behind-the-scenes beneficial interests by ensuring the purchase money is paid to two or more trustees, transferring the beneficiary’s interest from the land to the sale proceeds.

Question 42

TRUST OF LAND

Answer 42

TRUST OF LAND
* When 2 or more people acquire land together
* Trustees
- Holders of legal estate
* Beneficiaries
Holders of behind-the-scenes beneficial interest

Question 43

You and your rich friend decide to move into a house together (lucky you. Your friend does not want you to contribute money towards the purchase price. However, your friend would like the property to be registered in your name because they do not want the extent of their assets to be easily
discovered.
Which of the following statements are correct?
(check all that apply)
* (A) Your friend would hold a beneficial interest in the property.
* (B) You would hold a beneficial interest in the property.
* (c) Your friend would hold a legal interest in the property.
* (D) You would hold a legal interest in the property.
* (E) Your friend would be a trustee of the property.
* (F) You would be a trustee of the property.

Answer 43

Correct Answers:
(A) Correct. Your friend would provide all of the purchase money, so your friend would be a beneficial owner.
(B) Incorrect. You would not provide any money for the purchase, so you would not have a beneficial interest in the property.
(C) Incorrect. Your friend does not want the title in their name, so they would not have a legal interest in the property. That does not mean their interest is illegal; here, we are referring to the difference between law (legal interests) and equity (beneficial interests).
(D) Correct. The title would be held in your name; therefore, you would hold a legal interest.
(E) Incorrect. Only the holder of a legal interest is a trustee.
(F) Correct. The legal interest is held on trust for the beneficial interest holders.

Question 44

TwO FORMS OF CO-OWNERSHIP

Answer 44

TwO FORMS OF CO-OWNERSHIP
* Joint tenancy
* Tenancy in common

Question 45

True or False
If you and a friend buy a hectare of land in the country as joint tenants, you are entitled to occupy one half of the property, and your friend is entitled to occupy the other half.
O True
O False

Answer 45

False. You are each entitled to occupy the whole hectare; you each have half of an undivided interest. It is important to understand that joint ownership is not my half and your half, but rather ALL of it is ours.

Question 46

Jack and Jill own a house as joint tenants. Jill’s will leaves all of her estate to her sister, Emmy. Jill dies. Who owns the house after Jill’s death?
(A) Jack owns a half interest as a joint tenant and
(B) Emmy owns a half interest as a joint tenant.
(C) Jack owns the house alone.

Answer 46

(C) Jack owns the house alone.

Question 47

TENAnCY IN COMMON

Answer 47

TENAnCY IN COMMON
* No survivorship
* May only apply to beneficial interest

Question 48

Jack and Jill purchase a house, agreeing that both will be named legal owners. Jill contributed two-thirds of the purchase price, and Jack contributed one-third. They agree in a declaration of trust to hold the beneficial interest in the house as tenants in common in proportion to their respective contributions to the purchase price. Jill’s will leaves all of her estate to her sister, Emmy. Jill dies.
Which of the following is true?
* (A) After Jill’s death, Jack owns a one-third beneficial interest, and Emmy owns a two-thirds beneficial interest.
O (B) After Jill’s death, Emmy owns the entire beneficial interest in the house.
O (c) After Jill’s death, Jack owns the entire beneficial interest in the house.

Answer 48

(A) After Jill’s death, Jack owns a one-third beneficial interest, and Emmy owns a two-thirds beneficial interest.

Again, I just wanted to ensure you understood the ramifications of what I just said. In a tenancy in common, the beneficial owner CAN pass their interest on by will (or through intestacy).

Question 49

OVERREACHING

Answer 49

OVERREACHING
*
*
Buyer pays money to 2 or more trustees
Interest of behind-the-scenes beneficiaries transfers from land to sale proceeds

Question 50

2. As long as we are on the subject of trustees, do you remember the maximum number of trustees for a property?
   O (A) TWO
   O (B) Three
   O (c) Four
   * (D) Five
   O (E) six

Answer 50

The correct answer is (C). There can be no more than four trustees; that is, no more than four legal owners.

Question 51

3. Which form of co-ownership applies to the legal estate, and which form of co-ownership applies to the behind-the-scenes beneficial interest?

Answer 51

The behind-the-scenes beneficial interest can be held as joint tenants or tenants in common.
* The doctrine of survivorship does not apply to tenants in common.
* When a buyer purchases a co-owned property, the buyer overreaches to take free of the behind-the-scenes beneficial interest.

Question 52

2

Answer 52

LEASE
Legal estate with exclusive possession
LICENCE
Mere personal right to use land

Question 53

FIXED TERM TENANCY n PERIODIC TENANCY

Answer 53

FIXED TERM TENANCY
Term of years certain
E.g., Five year lease ending 1 Jan 2030
PERIODIC TENANCY
Defined periods until brought to an end
E.g., year to year or month to month

Question 54

A lease provides that the tenant shall have the right to occupy the leased premises for a year in exchange for £16,000, and that the lease shall continue until one of the parties gives notice of a desire to end the lease. How is this lease best described?
* (A) As void
* (B) As a year-to-year tenancy.
* (C) A term for years.

Answer 54

B

Because the lease term is periodic, it is referred to as a periodic lease or a tenancy from year-to-year.

Question 55

LEASE COVENANTS

Answer 55

LEASE COVENANTS
*Term of the lease
* Rent payable
* Quiet enjoyment
* Repair
Alteration of premises

Question 56

We have arrived at a section of the lecture that I like to call ‘fun with terminology’.
Type the letter associated with the term that matches each type of agreement in the table, below.

Terms:
A - Authorised guarantee agreement regarding assignment
B - Absolute covenant against assignment
C - Qualified covenant against assignment

Agreement Type
Term
1. An agreement not to assign a lease.

2. An agreement to act as guarantor upon assignment of a lease originally entered into after 1995.
3. An agreement not to assign a lease without the landlord’s consent.

Answer 56

B
A
C

Question 57

LANDLORD & TENANT
COVENANTS ACT 1995

Answer 57

LANDLORD & TENANT
COVENANTS ACT 1995
* Old lease: before 1 Jan 1996
*
* Original L and T remain liable for full lease term
* Liability even after assignment

New lease: on or after 1 Jan 1996
* Tenant automatically released after assignment
* No liability after assignment

Question 58

LANDLORD CONTROL
OVER ASSIGNEMNT

Answer 58

LANDLORD CONTROL
OVER ASSIGNEMNT
* Absolute covenant: no assignment
Qualified covenant: conditions
- L may require consent

Question 59

1. A landlord will have the right to terminate the lease if the tenant stops paying rent, even if the right to terminate is not included in the lease.
   O (A) True
   * (B) False

Answer 59

False. The right to terminate the lease (forfeiture) must be explicitly reserved in the lease.

Question 60

What is the difference between a lease and a license?

Answer 60

A lease grants an exclusive right to occupy land for a specified term, creating an interest in the land, whereas a license merely permits the holder to use the land without granting any proprietary interest.
Key characteristics of a lease:
* exclusive possession by the tenant
* a fixed term
* payment of money in consideration

Question 61

What is the significance of the Landlord and Tenant (Covenants) Act 1995?

Answer 61

The Landlord and Tenant (Covenants) Act 1995 significantly reformed the law on the enforceability of covenants in commercial leases, particularly by introducing the concept of “new” and “old” tenancies and allowing for the release of former tenants and their guarantors from future liabilities under certain conditions.

The Landlord & Tenant (Covenants) Act 1995
Is the lease dated on or after 1 January 1996?
o Before = old lease; original tenant will be liable for tenant covenants
* On or after = new lease; original tenant will be released from ongoing liability (unless an authorised guarantee agreement is required)

Question 62

Easement CHARACTERISTICS

Answer 62

Easement

CHARACTERISTICS
* Dominant and servient tenement
* Servient: burdened land
* Dominant: benefitted land
Right benefits dominant tenement

Question 63

Suppose you own a cottage in the country to the west of my cottage. Although your cottage has access to a narrow dirt road, mine has access to a paved road.
The dirt road takes a meandering path back to the nearest city. Access over my land to the paved road would save you considerable time to drive to the city-both for work and personal errands. You ask me for the right to connect your drive to mine so that you can access the paved road.
1. Are you seeking an easement or a personal right?
* (A) Easement
O () Personal right

Answer 63

A. You are seeking an easement, as you are seeking an agreement relating to the use of your land and not an agreement that is personal to you.

Question 64

Same facts as the previous question:
Suppose you own a cottage in the country to the west of my cottage. Although your cottage has access to a narrow dirt road, mine has access to a paved road.
The dirt road takes a meandering path back to the nearest city. Access over my land to the paved road would save you considerable time to drive to the city-both for work and personal errands. You ask me for the right to connect vour drive to mine so that vou can access the paved road
2. If I give you the easement you seek, is your land the dominant or the servient tenement?
O (A) Dominant
O (B) Servient

Answer 64

The correct answer is (A). Your land will enjoy the rights under the easement; therefore, it is the dominant tenement. My land will be burdened, so it is the servient tenement.

Question 65

1

Answer 65

CREATION BY
* Express grant or reservation
Specified in deed or transfer
Expressly reserved in sale/purchase
Implied grant or reservation

Necessity
Common intention
Wheeldon v Burrows rule
Statute
Prescription
- 20 years

Question 66

Remember that lovely cottage you have next to mine? If we came to an agreement on an easement permitting you to access my drive, would that be an easement by express reservation?
* IA) Yes
O (B) NO

Answer 66

NO
Welcome to another instalment of ‘fun with terminology’. It is very important for you to get these labels right—as solicitors, these terms are our stock-in-trade. It is not an easement by express reservation because I did not reserve the easement (for myself) when selling you some of my land. This is an express grant of an easement.

Question 67

DISTINGUISHING
COVENANTS

Answer 67

DISTINGUISHING
COVENANTS
Look at what needs to be done to comply with the covenant

Question 68

CAN SUCCESSOR
ENFORCE COVENANT?
* Benefit - yes at law

Question 70

CAN SUCCESSOR
ENFORCE COVENANT?
Benefit - yes at law, yes in equity
Burden - no at law
Restrictive: yes in equity
Positive: no in equity

Question 71

You own a cottage in the country. Your cottage is on a small hill and has a view of my garden. There is a small pond in my garden, which you can see from your sitting room. One day, I inform you that I am thinking of building a shed which, unfortunately, will partially obstruct your view of the pond. After some negotiation, you agree to pay for some overgrown trees to be cleared from my garden so the shed can be located elsewhere and I agree never to build a structure to obstruct your view of my pond.
If I sell my cottage in the future, is it likely you will be able to enforce the covenant against the new owner?
* (A) Yes, both at law and in equity.
* (B) Yes, but only at law.
* (C) Yes, but only in equity.
© (D) No.

Answer 71

The correct answer is (C). The promise cannot be enforced at law because my promise burdens my land, and common law does not allow the burden to pass to a successor of burdened land.
Now, let’s run through the equity checklist:
Is the covenant negative? Yes, I promised not to build.
Did the covenantee (that is, the one to whom the promise was made—here that’s you) own the benefitted land when the covenant was made? Yes, you did.
Did we intend the burden to run with the land? Most likely, yes, since you made me promise to ‘never’ build a structure that blocked your view.
Have you done anything that would prevent equity from acting? No, nothing in our facts indicates that you did anything wrong—you seem to have clean hands.
Therefore, the covenant would be enforceable in equity.

Question 72

PROTECTION

Answer 72

PROTECTION
*
*
*
Registered
Notice on Charges Register
Unregistered
Lender holds title deeds
* Puisne mortgage -
C(i) land charge