LL1 Flashcards
Estates vs interests over land?
2 forms of rights can have over land.
- Estate:
- right to enjoy, possess, CONTROL and dispose of it
- receive any income produced from the land
- Interest
- right in land owned by another
eg easements and profits (e.g. to get fish)
What is an easement?
Make it client friendly?
Right for one landowner to use part of another’s land for benefit of their own land
eg right of way
right to erect satellite dish
right to park
What are profits / profits a prendre?
Right to go on to another’s land and remove something from land which exists naturally
eg to catch fish, hunt or shoot, extract minerals or graze animals
Difference between freehold and leasehold
Freehold lasts indefinitely
i.e. fee simple absolute in possession
Leasehold lasts for fixed period
‘term of years absolute’
freehold owner can grant lease for any duration
leaseholder can only grant sub-lease for period shorter than own lease
Restrictive vs positive covenant?
Restrictive = promise by one landowner in favour of another that will NOT do certain things on the land
Positive = obligation requiring effort or expenditure
about substance not wording
What are profits / profits a prendre?
Right to go on to another’s land and remove something from land which exists naturally
eg to catch fish
What is an estate contract?
After contracts exchanged but before completion, buyer owns an estate contract (equitable interest)
NOT an option to buy !
What is an ‘option’ in land law?
howlong can it last for?
Enables owner of the option to insist land sold to them at any time during fixed period (which must not exceed 21 years)
Usually have to pay for this (but not full purchase price - only pay that if exercised)
eg mark next door would have invited to 21st
What is a home right?
Is it equitable under a trust?
Statutory right
Non-owning spouse to occupy marital home
(has been or intended to be matrimonial home)
Must not be divorced
Does not create interest in land
Independent of equitable interest under a trust
(eg beneficiary resulting trust is also entitled to home rights)
What is alienation in land law?
Tenant’s disposal of existing leasehold estate by:
- assignment
- sub-lease (ie underlease)
- mortgage
- parting with possession/occupation
What is a conveyance vs transfer?
Conveyance = doc transferring legal ownership in freehold UNREGISTERED land
Transfer = document transferring legal ownership in REGISTERED land
Mortgagee vs mortgagor
Mortgagee = lender
(mortgageEEK (! :) :P !) bcos u are the one with the right)
Mortgagor = borrower
Periodic lease meaning
Lease for one period - which extends automatically until either landlord or tenant give notice to quit
Period usually week/month or year
eg peninsula vibes
What is personal vs real property?
Personal = rights in property EXCEPT land eg chattels
Real = rights relating to land (inc interests, estates etc)
(think real estate)
Puisne mortgage meaning
Legal mortgage over unregistered land which is not protected by title deeds
What is date of legal memory for land law?
1189
How much of airspace does landowner have?
To height necessary for ordinary use and enjoyment of the land
Where are all interests in coal vested?
Coal Authority
Corporeal vs incorporeal hereditaments?
Corporeal = physical and tangible characteristics of land which are capable of being inherited
e.g. trees, rocks
INcorporeal = Intangible property rights which are capable of being inherited
e.g. profits (such as right to catch fish) and easements
How to distinguish fixtures and chattels and why important?
Fixtures remain part of land when sell (unless agreed in contract)
- Degree of annexation (initial test - raises presumption)
If cannot be removed without causing significant damage
eg fireplace or conservatory compared to carpets and curtains - Purpose of annexation (can rebut initial and takes priority)
Intended enhance land or permanent improvement = fixutre
For better enjoyment of object = chattel
Onus of proof in chattel vs fixture?
person arguing ceases to be chattel
Considerations for two-part test for fixtures?
chattel usually if:
- ornamental
- free-standing cooker
- kitchen appliances
- carpets/curtains
- gas fire with sole purpose of fire
- light fighting attached screws
fixtures:
- kitchen units
- cooker with build-in oven and hob
- installed builder (usually)
bathroom fixtures
- forms part of overall architectural design
- house constructed in way that cannot remove mobile home without destruction - fixture
Who technically owns all right in England and Wales?
England and Wales
Can all property rights be equitable?
Yes all capable of it
When will a property right (i.e. either an estate or interest) be LEGAL?
- In the list in 1(1) and (2) LPA 1925
- Meets the formalities
What rights are capable of being legal under s1(1) and s1(2) LPA 1925 (i.e. the lists)?
(quite a long one sorry)
Estates (s1(1))
- freehold
- leasehold
Interests (s1(2))
- Easements and profits (eg fish)
(fixed duration or absolute in possession)
- Mortgage charge
- Rentcharges
(annual fee paid from freehold owner to a TP who has no other interest in land)
(only if forever or fixed duration) - Interests arising via statute
(interest will be owned by gov agency e.g. charge over land for IHT) - Rights of entry
i.e. landlord’s right to forfeit lease if term broken; or
person with rent charge right to reclaim land if money owed by freehold owner not paid
Explain what a freehold is?
Estate fee simple absolute in possession
- capable being inherited
- can pass to any class of heir
- ownership not conditional
(e.g. when become lawyer - would be equitable) - permanent ownership
- immediate right to possess
2 types main types lease?
- fixed term
- right to occupy for fixed period
- can be for any duration, provided it is fixed (e.g. 999 years) - periodic
- automatically extends until one party terminates by notice
- regarded as tenancy for each individual period
- length determined by period for which rent to be paid for
(eg pay monthly, monthly periodic tenancy)
(usually it is periodic which become parol)
What’s a commonhold?
Buyer gets freehold interest in their flat or house
But communal areas are managed by commonhold owners
So would usually acquire lease of a flat with no guarantee of any involvement in managing communal areas
(Nb freehold not a lease)
What does it mean if landlord forfeits lease?
Brings lease to premature end
(forfeit bcos broken term of lease)
Main ways an equitable property right be created?
- Express trust
- Implied trust
- By contract (to create or transfer it)
- Failure to comply with formalities to make it legal
(falls through the gaps but caught by equity) - Estate or interest granted by someone who only owns an equitable right
(they can’t transfer a legal interest since they don’t have one) - Grant of estate or interest which can only exist in equity
(eg not fall in LPA list)
Are equitable rights over land recognised/protected at common law?
No
Only recognises and protects legal title of the person holding it (so trustee)
(so equity intervenes - remember equity and law separate)
How can express trust over land be created?
- Self-declaration
(retains legal title THEMSELVES but declare hold it as trustee for benefit of beneficiary) - Declaration plus transfer
(declares trust, transfers legal title to trustees, who hold it for beneficiaries)
Two types of implied trust over LAND ?
- Resulting
- not legal owner, contribute directly to PP and get interest proportionate to contribution - Constructive
- not legal owner, contributes to property OTHER than by making direct financial contribution to purchase
- not proportionate but consider parties conduct, financial (direct or otherwise) and non-financial contributions
(eg mortgage payments, bills, substantial improvements)
What interests are equitable in nature (because don’t appear in s1(1) or (2) so incapable being legal)?
- Beneficial interest under any type of trust
- Covenants
- Estate contract (in between exchange and completion)
^ this includes contracts for sale freehold/leasehold, easements/profits, option to buy, and right of pre-emption - where obliged to offer at point decide to sell.
What is a licence?
(what type of right is it, features etc)
(doesn’t create REAL interest in land/legal right)
PERSONAL right
- meaning is right in property other than land and so does not create an interest in land
Binding only between original parties and would not bind future title owner
Capable of authorising anything e.g. right of access / temporary occupation as lodger
Can be revoked at any time
Formalities for creation or transfer of a legal estate OR interest?
Deed, which is:
- in writing
- says its a deed
- signed
- witnessed by one
- delivered
s 1 LPMPA 1989
(Signed witnessed delivered I’m deed)
Exceptions to usual formality requirements for a interest or estate to be legal?
Parol lease exception - can be created orally
if:
- lease for 3 years or less
(IMP! inc periodic leases if period under 3 yrs - so even if Q says its 5 years but pay monthly) - immediate right to possess
- pays best rent (ie market rent)
- not charged fine or premium, meaning a one-off sum
(could be instead of or in addition to rent)
Also certain easements (unit 3)
Formalities for contract creating or transferring rights in land?
Examples of transactions would need contract to comply with these requirements to be valid?
Contract:
- In writing
- Incorporate all expressly agreed terms
- Signed both parties
(s2) (WTS) (writing terms signed) (what the Steve !)
(means equitable interest until completion)
E.g.
- Sale of freehold or lease
- Grant of lease
- Option (to buy)
- Easement
- Any variations to contract
Main ways equitable property right can be created?
- Grant of an estate or interest which can only ever be equitable
(eg restrictive covenant) - Grant of estate or interest where person only owns equitable right
(can’t grant a legal right if you only have equitable) - Contract to create or transfer LEGAL estate or interest
(if use valid contract instead of deed, equitable if clean hands) - Trying to grant legal right but failed use valid deed
(fail to use valid deed so court considers the document to be a contract, even if they didn’t intend a contract, to prevent it failing) - Express trust
- signed and written - deed not required but may be used - Implied trust
- don’t need to be in writing or signed - arise from conduct
Explain how a contract to create or transfer LEGAL estate/interest will create an EQUITABLE interest?
important
Walsh v Lonsdale
- Got a contract instead of deed
- Complies with s2
(ie in in writing, agreed terms and signed - what the Steve!); and - Clean hands
- (acted justly/fairly/not breached contract - so specific performance can be available)
Then will get an EQUITABLE right
also NB
- if contract to transfer existing legal estate, there will be an equitable interest under ESTATE CONTRACT
Can a right be equitable if parties attempted but failed to use a valid deed when granting legal estate or interest?
Yes
Even if parties didn’t intend a contract and intended a deed but didn’t comply with the formalities, court will construe it as a contract so that there will be an equitable interest and doesn’t totally fail
If:
- doc meets formalities for a contract (written, terms, signed - no need witness); and
- clean hands
When creating an equitable property right, does it always need to be writing and signed?
General rule is yes
Exception is IMPLIED trusts as they arise without any formality and simply out of conduct of parties
e.g. constructive/resulting?
Steps 1 - 5 to check if INTEREST is legal or equitable
- What type of INTEREST is it?
(eg obligation not to do something = restrictive covenant, right over another’s land = easement) - Is the interest CAPABLE of being legal?
(ie is it excluded by statute / if easement or profit, must be for forever or fixed duration to be capable - not for indefinite time) - Have correct FORMALITIES been used?
(legal = deed unless parol)
(equitable usually signed writing unless implied) - Capable but no deed?
(contract and clean hands)
(parol lease?)
TOLATA will create an automatic _____ when what happens?
Trust of land
Two or more people own the land at same time (concurrent sharing)
How is legal estate held where there is co-ownership?
Always as a joint tenancy
(ie default is never TiC)
Trustees hold as joint tenants
(beneficiaries not recognised as holding legal estate)
Who can be a trustee of land?
Only people over 18
If convey legal estate to minor, it is treated as declaration of trust
So the land is held on trust and vested in adult with the minor as beneficiary
Max/minimum number trustees property?
Max 4
If more than 4, first 4 adults will be trustees
No minimum but usually have 2 to make sure overreaching works
Powers of trustees in land law and how limited?
All powers of absolute owner of the right
eg power to sell or mortgage the land or purchase land for occupation of beneficiary
But limited:
- must consult beneficiaries if 18+ and interest in possession (ie entitled to IMMEDIATE interest in land)
- comply as far as consistent with interests of trust with majority of beneficiaries wishes
- duty to consult only as far as practicable
How can co-ownership of equitable interest be held (in comparison to co-ownership legal interest)
beneficiaries can hold as joint tenancy or tenancy in common
(legal = only JT)
tic tacs are shared
(unlike legal estate which must be held as JT)
Features of a joint tenancy?
SURVIVORSHIP
- automatically and immediately passes to other surviving joint tenant
UNDIFFERENTIATED OWNERSHIP
- both entitled to whole of property - no shares.
Important:
- CAN sever joint tenancy in equity so that equitable interests instead held as tenants in common
- CANNOT sever joint tenancy in law
How to tell if there is a joint tenancy or tenancy in common?
Test 1
ALL four present suggests JT”
- Unity of POSSESSION
(both have RIGHT to possess all of it, even if don’t in reality)
(required for JT and TiC) - Unity of INTEREST
(no unequal shares - exact same rights over it) - Unity of TITLE
(acquired interest via same document) - Unity of TIME
(received at same time)
(PITT) (pitttttball lovers unite)
How to tell if there is a joint tenancy or tenancy in common?
(nb at equity - always at law)
- all 4 unities?
- deed - express declaration?
- deed - words of severance?
- does equity presume a TiC?
Will there be joint tenancy tenancy in common at equity?
Test 2
Draft it.
If deed transferring land to co-owners contains valid express declaration of trust, that is conclusive
Will be held as it states in there
e.g. “transferred into their joint names as express beneficial joint tenants in equity”
Will there be a joint tenancy in equity?
Step 3
(Nb only use if step 2 not given answer)
Does the deed transferring land contain words of severance
i.e. indicating they will have distinct shares
If so, TiC.
“To A and B in equal shares”
“Between A and B”
“Half to A and half to B”
How to tell if joint tenancy in equity?
Step 4 (if no others given an answer)
Equity follows law so presume joint tenancy
Rebutted if:
A) Commercial property
(would rather it goes to your estate than business partners)
B) Unequal contributions to purchase price
- usually be proportionate to contribution
- but fam home, Stack v D suggests JT even if unequal cont
C) Post-acquisition money management
- if fam home - only rebut exceptionally if one paid WAY more post-purchase
e.g. ALL mortgage payments and majority outgoings)
(Stack v Dowden)
Effect of severing joint tenancy?
ONLY SERVER EQUITABLE ESTATE
Becomes tenancy in common
How can a joint tenancy be severed at basic level?
DURING lifetime (ie not in will)
Formally by written notice; or
Informally
How can a joint tenancy be FORMALLY severed?
- WRITTEN notice to co-owner stating intention to sever
- does not need to be SIGNED
A) express desire to end IMMEDIATELY
B) be deemed RECEIVED by other JTs
- either handed or post
Postal rules for severing joint tenancy?
A) Registered post
- deemed served if not returned as undelivered
B) Ordinary post
- always served if left at their last known abode or place of business in the UK
- even if not received by intended recipient
(sometimes need evi from postman than posted it)
How can a joint tenancy be INFORMALLY severed?
- Disposed via sale, gift, lease or mortgage
- Disposed via contract
- Mutual agreement shows intention to sever
- Mutual conduct
- Bankruptcy
- Homicide
- Post-acquisiton money management
(S v D)
SEE ONENOTE
Severing joint tenancy:
How can you dispose via gift/lease/mortgage/sale or contract?
Gift/lease/mortgage/sale
- s 53(1): in writing and signed
Contract
- WTS - written, terms, signed
- clean hands
Both can be to stranger
Severing joint tenancy: how can you show via mutual agreement?
Just show an intention to sever and must be valuable consideration
Can be oral
e.g.
old widows. became clear she would not marry him. they agreed he would purchase her interest for £750. she later changed mind and wanted 1k. no further action and he died.
- there was a common intention to sever. so severed.
Does bankruptcy sever a joint tenancy?
Yes automatically
Assumed own in separate shares and Trustees in bankruptcy seek bankrupt person’s equitable interest
Owner who isn’t bankrupt has protected share
Once bankruptcy finalised, equitable interest goes back to the other co-owner who will hold
effect homicide joint tenancy
if murder other joint tenant then it JT severed automatically
(so only get their share)
Severance joint tenancy:
Post-acquisition money management (ie Stack v Dowden)
Explain
fam home. joint names. unmarried. no express.
presume JT
rebut show
diff agreement or intention when acquired or later
unequal to PP not usually sufficient
financial and non-financial are relevant
conduct and evi
what fair proportions
e.g. mortgage payments/childcare
Effect of severance
JT becomes TiC and:
- if 2 tenants, TiC in equal shares
- 3 or more joint tenants, other co-owners continue hold JT of remaining interest and the share is proportionate to number of joint tenants
(eg 3 co-owners. 1 severs. they hold their 1/3 of equitable interest as T in C. Others holds 2/3 between them as JTs)
IMP: contributions to PP irrelevant to share will get on severance
- literally just about number there are
What is a resulting trust?
Effect of it?
- Person who doesn’t own legal title contributes to purchase price
- no evidence gift or loan🎁🏦
- must be of all or part of PP at date of acquisition 📆
(not mortgages etc)
Then hold beneficial interest proportionate to contribution made ∺
When will a CONSTRUCTIVE trust arise?
Two-stage test (Rosset):
1. Agreement AND DR
- common understanding share beneficially
- consider discussions
(eg will be our forever home - sufficient) - irrelevant if agreement based on deceit
(eg lied and said couldn’t share jointly cos of divorce) - can agree after purchase
- DR linked to agreement
(e.g. improvements, bills, unpaid work for owner) - not cos of love and affection
OR if above not apply:
-
Conduct AND direct financial contribution
- no agreement
- but conduct suggests common intention share beneficially
^ MUST be direct payment towards PP or mortgage
- relied on that
If there is a constructive trust, what should be considered when calculating each party’s interests?
- Was it intended for non-owning to have an interest?
- If so, objectively deduce their intention from conduct
- No presumption of JOINT ownership
- If no evidence as to intended respective shares, consider WHOLE course of dealing
- Financial contributions not only relevant factor
- Don’t use resulting trusts to determine beneficial interests
(remember resulting trust it is proportionate to contribution)
What should co-owners (whether JT or TiC) do if one wants to sell and others want to remain?
Anyone with an interest can apply to court to use discretion under TOLATA to order:
- Relating to exercise by trustees regarding their functions; or
- Declaring nature or extent of person’s interest in the property
(e.g. disputing whether to sell, if one trustee authorised transactions without others consent, disputes re who occupies trust property and disputes regarding who owns how much)
What should court consider when exercising discretionary powers to make an order relating to co-ownership disputes?
(s15 TOLATA)
(asked to exercise discretion re whether order court sale or not where one or more wants to sell JT)
- intention of settlor
- purpose of trust
- if purpose can be substantially fulfilled if make the order
(e.g. relationship broken down and no minors - more likely order sale)
(e.g. living in it whilst finish TCs) - application for sale comes from bankruptcy trustee (ie a secured creditor)
- interests of mortgagee (lender) takes priority needs of child or ill co-owner - welfare of minors who do or may occupy land
- circumstances/wishes beneficiary or MAJORITY of beneficiaries who are immediately entitled
(eg 3/4 of beneficiaries don’t want to sell)
Options for court where using discretion to determine application for sale under TOLATA?
- Refuse sale
usually if purpose of the order could still be fulfilled - Order a sale
usually if purpose for acquiring failed
e.g. comm prop - business used for failed - refuse sale but make order REGULATING right to occupy property
e.g. domestic abuse - person in occupation pay rent to person excluded from occupation due to their violence - partition co-owned property (rare)
imp! references to easements in queue cards refers to easements/profits - as if they are the same. any differences highlighted
–
When is an easement capable of being legal?
implied, prescription or express (and deed)
must also be for full length of leasehold or freehold
Formalities for an easement to be LEGAL?
USUALLY need a deed
(signed, witnessed by one, delivered, says its a deed, in writing)
- if complies with s 2 LPMPA
(What The Steve Written Terms Signed!)
then will be a CONTRACT for an easement so EQUITABLE (Walsh v Lonsdale)
BUT sometimes can be implied
What is a grant in land law?
Land owner of burdened land grants easement in favour of the buyer
e.g. own a farm, sell a barn on land, must provide GRANT of right of way to go over his land to access the barn
Servient tenement vs dominant tenement
Servient = burdened land re easement
Dominant - benefitted land re easement
What is a reservation?
Land owner creates easement in favour of own land when selling to a buyer
So reserves/retains rights over land they are selling
(land retained becomes dominant and land sold = servient)
e.g. drains serving X’s house run under Y’s house which Y is selling to Tom. X must reserve right to use drains in the transfer
Essential characteristics of an easement?
Re Ellenborough Park
- Dominant and servient land
- Accommodates (benefits) dominant
- Diversity of ownership
- Easement must be capable of forming subject matter of the grant (Subject matter)
(Nintendo DS. I accommodated it. I owned it. The subject matter was Nintendogs).
Explain requirement for easement to accommodate dominant tenement
connected normal enjoyment.
(e.g. right of way Norfolk can’t accom in Longridge obvs cos its a right of way)
D&S don’t need to be joined but close enough to establish connection.
(eg could be separated by another parcel but sufficiently close)
Must benefit land not just owner.
Consider:
1. Does it improve the marketability; and / or
2. Would ANY owner of land see it as benefit ?
Eg:
- pub sign - used to communicate to public the location/inc directions
- right to use a communal garden valid
- right to put pleasure boats on a canal not - canal business was independent business
(good for canal business but not necessarily for other businesses)
Explain req for dom and serv land (easement)
what would it be if only servient?
Must be identifiable dominant (benefitting) and servient (burdened) land
Cannot exist in gross - i.e. only servient land can be identified
Would mean licence only
Must be attached or belong to dominant land
HOWEVER !!! PROFIT CAN EXIST EVEN IN GROSS (ie if servient only)!
explain diversity ownership req easement?
what is it if no diversity?
quasi-easement
(can then become easements on sale)
quasi diversity !
Explain easement requirement that must be capable of forming subject matter of the grant?
- Capable of reasonably exact DEFINITION 🈹
(eg no general right air/light) - Must not involve any EXPENDITURE by servient owner 💰
- Not so extensive that would EXCLUDE grantor from possession of servient tenement ⟺
- Law cautious over allowing new categories of NEGATIVE easements ➖
(NEED)
Also must be capable grantor (has the right themselves) and capable grantee (eg not too vague like inhabitants of village)
Explain requirement that easement must be capable of a reasonably exact definition?
Can’t be too vague or indefinite
eg
- yes to land for recreational purposes 🎯
- no general flow of air 💨
- no right to view 🎑
- no general right to light 🪟
lightonly have if:
A) enjoyed via a defined aperture eg a window
B) right been infringed; and
c) amount remaining less than enough for ordinary purposes (considering nature of property)
Explain requirement that easement must not involve expenditure by servient owner?
**servient = suffering **
(eg landowner grants right of way, i dont have to maintain that)
dominant has right to carry out repair works
BUT servient:
- cannot withdraw right to support 🤝
(eg semi-detached house resting on each others)
Random exception for fencing: 🤺
can require servient owner of boundary fence to keep it in repair if rural area and imp that farm animal proof fences
Explain requirement that easement cannot be so extensive as to amount to a claim of joint possession on servient tenement?
Can’t be so extensive that would exclude grantor completely from possession of servient tenement
TIME AND SPACE ⏰🧑🚀
Judged based on:
- amount of time taken;
(use for so long that never get to use it)
- amount of space used
Since easement cannot exclude servient owner from possession, can you have easement for STORAGE?
Maybe - depends on if leaves with reasonable use of land
Q of fact and degree
Consider intensity of use
eg:
filled the entire area - less likely easement
no limit on number of vehicles or how long stored on land for - not an easement
Since easement cannot exclude servient owner from possession, can you have easement for PARKING?
Only if
leaves servient owner with REASONABLE USE of their land
(consider if it large enough for purpose)
eg
claimed right park 6 cars certain hours of week but would cover whole of land - leaves no reas use.
Will courts allow claim for a negative easement?
negative easement = prevents servient owner doing something on their land
Usually just for:
Light 🔆 , Air 🌬️, Support 🤝
Remember: no general right to light
- must be from defined thing and restricted beyond amount needed for ordinary purposes AND been infringed
If doesn’t satisfy Re Ellenborough, what do you have?
Licence
Meaning a personal right. Does not pass on sale. Revoke at any time.
Sad!
Methods for creating an easement?
- Express grant/reservation
- Implied grant and reservation:
- Necessity
- Common intention - Implied grant but not reservation:
- Wheeldon v Burrows
- S 62 LPA 1925 - Prescription
How can easements be implied by necessity?
Applies grants and reservations
(sale and keeping it a
But where they ARE LANDLOCKED
Can’t access it without easement (landlocked)
can’t use property AT ALL
Defeated if alternative means to access, even if they were dangerous
Can only use the easement for the purposes that dominant land used for at time necessity arose
How can easements be implied by common intention?
Land conveyed for a common purpose known to parties
And right needed for that common purpose to be fulfilled
Will be implied into **grant in favour of grantee **
eg:
leased ground floor flat to be used as a restaurant, inc obligation that no bad smells, only way to comply was build duct, refused access to install the duct,
implied easement of necessity to access property for ventilation shaft
When will rule in Wheeldon v Burrows apply/not apply?
ONLY grants of easements not reservations
grant = just sold.
reservation = selling whilst retaining a right over sold last.
DOES NOT APPLY PROFITS
so if Quasi was trying to retain a right to use his wheelbarrow when selling it w v b not apply !
Rule in Wheeldon v Burrows
(think quasi k in a wheelbarrow)
QUASI converted into easements where sell PART of land if:
- continuous and apparent
- used regularly / visible on inspection/person conservant) - easement existed prior to sale
i.e. satisfied Re El except ownership - necessary for reas enjoyment of land
- alternative less convenient / dangerous - in use at time of sale
No requirement for a deed. CONTRACT fine.
e.g.
- exercised quasi easements over own land
(would be easement but they own)
- owned property and selling cottage (so part)
- self and guests use of track = quasi-easement
- “regularly used” = continuous / apparent and used sale
- “avoids busy road” = reas enjoyment
- i sell house to luke and retain garden (which has right of way)
W v B
Quasi easement must be continuous and apparent
^ explain
Habitual enjoyment
Obvs from inspection
By someone who may expect to be aware of it if they saw it
e.g. surveyor
things like drains and pipes
Wheeldon v Burrows
Right must be necessary to reas enjoyment.
Explain
Alternative route:
- less convenient
- dangerous
^ Lower threshold than necessity
When would an easement be implied by section 62 LPA?
- Existing privilege
e.g. informal permission, licence etc -
Conveyance
- written doc transferring legal estate
- mortgage or lease
- not a contract - Diversity of occupation
(i think before transfer)
UNLESS
- easements of light; or 💡
- continuous and apparent rights 🙄
(obvs on inspection and regularly enjoyed) - Satisfied all Re Ellenborough
(benefits the land/intent to run etc)
- except necessary reas use not required
(i.e. amount exclusive possession)
(saves words for conveyancers get lazy at 62)
person claiming right must be the person who the land is then conveyed to
(where occupier has been permitted to undertake some activity on the land owned by another (here the landlord) and the owner of the land then conveys the property to the person claiming the benefit of the right.)
Will implied easements / prescriptive easements be legal?
Yes
3 ways grant can arise by prescription?
- common law
- doctrine of lost modern grant
- Prescription Act 1832
No matter which method of prescription, what must be satisfied for prescription? of easement
- 20 yrs for easements or 30 yrs profits
- exercise CONTINUOUSLY
- user of right can be diff successive owners
- can be intermittent
(ie can only exercise the right from time to time)
- eg using 6 time over 35 years counted as continuous - as of RIGHT
i.e. without:
- FORCE
(force would inc removing obstructions or ignoring protests)
- SECRECY
(reasonable servient owner would have opportunity to discover it)
(eg dumping sewage at night would be secret - even if no attempts to conceal)
- PERMISSION
as in must NOT have permitted !!!
(even if just tolerate without objecting, also whether oral or written)
How can prescription of an easement be granted at common law?
Grant of easement presumed if enjoyed continuously as of right since time immemorial ie 1189
Presumed that user for 20 years or more is proof of use since 1189
Rebut presumption if show at some time since 1189:
- right not exercised;
- could not have been exercised; or
- common ownership at some point
What is doctrine of lost modern grant?
Remember wording to help remember: total fiction and last resort
Presumes easement if used CONTINUOUSLY as of right 20 years
Use where cannot relyon common law or Prescription Act because
- common ownership at some point since 1189; or
- gap in use exceeding one year at some point since 1189
^ but still need to have enjoyed continuously and diverse ownership for 20 years before action
(so e.g. in 1950 there was a10 year gap in ownership but owned for 20 years so it’s fine)
When would prescriptive easement arise under Prescription Act?
common ownership
for 20 years (or 30 years for profits)
Interruptions in use UNDER one year permitted, as long as been uninterrupted for last 20 years
(1 yr OR MORE - try doctrine modern grant)
PRESCRIPTION IMPLIED whilst it makes sense
- Common law
- diversity ownership
- right was not/could not be exercised - Prescription Act
- interruptions UNDER 1 year, even if WITHIN last 20 years permitted - Doctrine Lost Modern Grant
- gap ownership 1 year or use, but not in last 20 years
- common ownership at some point, but not in last 20 years
Prescription can only arise if right existed between ____
Two FREEHOLD owners
(not if given it to a tenant)
Is a covenant capable of being legal?
NO
Not listed s1(2) LPA so equitable only
Formalities for valid covenant?
Writing and signed
So can create by contract
But often created by deed (bcos made on sale)
Covenantor vs covenantee?
Covenantee = recipient of promise / benefits
Covenantor = makes the promise and burdened
EEEk I get a benefit!
Impact of privity of contract on covenants?
Original covenantor/covenantee are parties to contract
So liability of original covenanter has potential to last forever (after sale of land)
Can BURDEN of covenants pass with land?
Burden cannot pass at law
Only at equity - if Tulk v Moxhay applies (so must be restrictive)
