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)
When can BURDEN of covenant pass in equity?
Tulk v Moxhay requirements
Covenant is:
- Restrictive
- Made to benefit identifiable dominant land owned by covenantee
(eg seller retains ownership of the benefitting land - e.g. own 2 houses next door to each other and sell one) - Touch and concerns dominant
- Intent to burden servient;
(either express or implied)
(implied if no contrary intention expressed) - Owners have notice of the covenant
(notice varies registered vs unregistered)
- notice charges register
When will a covenant ‘touch and concern’ the dominant land?
imp - used a lot in land law
(e.g. has effect that restrictive covenant passes with land)
(also T2 will be liable for breaches of these covenants in old leases)
Covenant must:
- benefit the land itself not the owner
(so if separated from the land, would no longer be of benefit to them) ⛰️❌🏌️ - Affect nature, quality, mode of user or value of the dominant land; AND 🎄
- not expressed as personal to one specific dominant owner 1️⃣
How can positive covenant be enforced against successor in title?
- Lease instead of sale
- restrictive and positive covenants always bind successor tenants - Indemnity covenant
- future buyers not bound but original covenantor will be
- creates chain of indemnity
- can sue only the person who gave you an indemnity
- if one missing/bankrupt, falls to last person in chain - Doctrine of mutual benefit and burden
(Halsall v Brizell)
- sep card
What is the doctrine of mutual benefit and burden - Halsall v Brizell?
2 conditions?
If wish to take advantage of a service/facility which benefits your land, must comply with any corresponding obligations
e.g. contribute maintenance costs
- Clear link between benefit and burden
- Successor’s in title have choice to accepting burden
Allows owner of burdened land to prevent covenant if not complied
e.g.
- grants a right of way subject to buyer paying towards maintenance
- assuming new buyer chooses benefit, if she doesn’t pay, we’ll take it away
Two pre-conditions for doctrine of mutual benefit and burden to apply?
- Clear link between the benefit and the burden
(eg between RoW and maintenance costs) - Covenantor successors in title must have been given opportunity to accept or reject the burden
(fact they decide to accept the benefit will be enough)
How can the BENEFIT of a covenant pass under LAW?
Annexation
Or
Assignment
(applies to restrictive and positive)
How can benefit of a covenant pass at LAW?
(not equity. LAW!)
(nb restrictive AND positive)
(nb dont think it makes the cov legal but just means the benefit passes and can be enforced via common law)
- Annexation
- if original covenantee sells, their successor in title can enforce if:
a) touch and concern
b) intended benefit run with
(by including clause or implied if not)
c) original covenantee had LEGAL estate in benefitting land
d) buyer takes LEGAL ESTATE - Express assignment
- writing and signed by assignor (original covenantee) to assignee on transfer
- same time as transfer
- written notice of assignment given to person with covenantor (burdened)
Which is more preferable, annexation or assignment?
Annexation - because permanently attached covenant to the benefitted land
- not from textbook probs don’t need to know
When will BENEFIT of a covenant pass under common LAW via annexation?
repeat of other card but summary
(so successor covenantee could enforce at LAW)
Covenant must:
- touch concern
- intend benefit pass
- “the buyer and their successors in title covenant with the seller and their successors in title”
- or implied - Covenantee legal ESTATE in benefitting land
- Buyer legal TITLE in it
- inc LEASE
How can the BENEFIT of a covenant pass via ASSIGNMENT?
Will it pass law or equity?
Can pass via law AND/OR equity if:
- Express assignment at time of the transfer of land (ie sale)
- In writing, signed by assignor and written notice given to person burdened
(think of it like a uni ASSIGNMENT - at uni studied law AND equity - express assignments signed cover page / in writing - gave diss supervisor notice)
Good to know it passes via law and equity this way !
How can BENEFIT of a covenant pass in equity?
Annexation
(express, implied or statutory)
Assignment
Building schemes
When will EXPRESS annexation allow benefit of covenant to pass in equity?
DRAFTING.
Named the BENEFITTING LAND itself
(not JUST “successors in title”)
no need postcode
Clear words of annexation
i.e.
“for the benefit and protection”
AND
“each and every part”
Covenant then annexed (applied to) whole of dominant land, no matter how extensive and even if later divided
e.g.
Luke sold part of land to 21 Cadley Gro. Retained 21 Cadley Av.
“For the benefit and protection of 21 Cadley Av and **each and **every part thereof the Buyer and his successors in title covenants with the Seller and his successors in title to use the Property only as a private dwelling house.”
(no need to do
e.g.
- Lucy own 2 and 4 Woodlands G
- live at 2 and sell 4 to A
- transfer to A “for benefit and protection of each/every part 2 Woodland Grove, owner of 4 and successors in title covenant to use only as dwelling”
- Lucy sells 12 to B
- B is entitled to benefit because dominant land clearly identified as number 12 and clear intention that annexation to the land as whole
When will there be implied annexation?
(meaning benefit of covenant passes in equity)
Rare
Courts imply
If annexation obvs intended so injust to ignore
Intention must be shown in transfer considering all circumstances
Always apply statutory annexation first
What is statutory annexation?
(meaning benefit of covenant pass equity)
Statute automatically annexed a freehold covenant to each and every part of covenantee’s retained land
Provided covenant was:
1. created after 1925;
2. touches and concerns the land; and
(i.e for benefit of land not owner)
3. benefitting land identifiable
(even if have to use external evidence)
4. s 78 not excluded in transfer
Diff from
E.g.
Luke owned 21 Cadley A and 21 Cadley G. Sold 21 Cadley G to Steve.
But instead of saying for benefit of 21 Cadley A he said
“For the benefit and protection of the Seller and his successors in title the Buyer covenants with the seller and his successors in title not to use 21 Cadley G for any purpose other than dwelling house.”
^ - even tho benefits the retained land, refers to benefit for the seller
^ - so statutory instead of express bcos:
a) post-1925
b) benefits land/not expressed as personal (think since says successors in title)
c) land identified in transfer
can a building scheme allow benefit of covenant to pass in equity?
Provides mutual obligations, including positive covenants, on buyers of plots
^ the same restrictions benefit all the lots
Characteristics/help identify building scheme:
- defined area where title purchased from common owner
- each property burdened by covenants
- covenants intended mutually enforceable between several owners
- can be positive cov
e.g. Elst Park. All bought from Story H. They all burdened by need to upkeep the grass. But all receive benefit of that.
Can BURDEN of a restrictive covenant pass at common law?
No, only at equity (if Tulk v Moxhay)
Can benefit of a covenant pass at law?
Yes - at law and equity
So when original coventee(eek!) sells dominant land, their successor in title needs to demonstrate they have the benefit
If new owner of the servient land, the new owner of dominant land could pursue claim in equity against them
(but not legal - as burden not pass at law/just the benefit)
Can BURDEN of a positive covenant pass at law or equity?
No - not at either law or equity
Means original covenantor remains bound and new one doesn’t
(why want indemnity)
Can BENEFIT of positive covenant pass? Under common law or equity?
Yes
Common law AND equity
(CL = annexation or assignment)
(equity = annexation, assignment, building schemes)
Remedies for breach of positive covenant?
- Damages
- usual remedy
- can be against successor
- may inc sum for future loss - Specific performance
- only against original covenantor
- not successor
- so if original has sold - can pay but may not be able to perform
(cos no control over the land/access etc)
Remedies for breach of restrictive covenant?
Injunction or damages in lieu
Injunction - apply if anticipate breach or as response to current breach
- Equitable / discretion
- Damages instead if:
1. only small breach to their rights; and
2. can estimate in money terms;
3. can be adequately compensated by money; and
4. injunction would be oppressive
Oppressive eg if homes built and occupied
No injunction if acted inequitably or delayed taking action
Original convenantee (benefit) could also enforce via PRIVITY of contract
- but damages only
- unlikely adequate
How does burden and benefit run for restrictive covenants?
Burden - equity but not law
(if Tulk v Moxhay)
Benefit - law and equity
Methods of releasing from or modifying the effect of a covenant?
- Express release
- Common ownership
(automatically release if both no longer diversity ownership) - Application to Lands Chamber (restrictive only)
- Insurance
Requirements for express release of covenant? Does it apply to restrictive and positive?
Formalities?
Applies to both
Deed
Signed by CURRENT owners of dominant and servient land
Usually payment or some value
Can use to modify or release
What’s unity of seisin?
Servient and dominant land come under common ownership and covenant automatically extinguished
(don’t think term ‘unity of seisin’ that imp)
Section 84 LPA / Application to Lands Chamber
How can this be used to modify or discharge covenant?
Restrictive covenant only.
Show one of below:
obsolete and impedes are great words !!!!!
- Obsolete (not used) 🏚️
-
Impedes some REASONABLE use of land and:
- no practical benefit to person should benefit; or 🙅♂️
- contrary to public interest 🚻
^ and money compensates 💰 - Those benefitting expressly or impliedly agreed to discharge; or 💬
- Discharge won’t harm interests of those entitled to benefit 🙂
What should you do if want to apply to Lands Chamber for release of covenant but can’t find dominant owner?
Apply to court to establish their identity
How can insurance be used to release or modify a covenant?
(not same as indemnity covenant)
Restrictive covenants only
Servient owner gets it
So that if the dominant owner tries to enforce a breach of covenant, insurer accepts to take the financial hit
If burden has passed in equity (ie restrictive covenant), what do you need to establish to claim?
That benefit has passed in equity
(bcos you are claiming in equity, you need to establish there is a benefit and a burden in equity)
So u have a right to claim aginst the person who has the burden because of some form of annexation
What is a mortgage?
(who grants/what type of right etc)
Granted by BORROWER in favour of lender as security for loan
But the lender still has legal estate
So it is a third party right over the land
Is a mortgage capable of being legal?
Yes
(listed in s1(2))
Terms mortgage and charge used as same
Formalities for a mortgage to be legal?
Deed
(so must be written, signed, witnessed. by one, delivered, says it’s a deed)
If formalities not complied with, may recognise equitable mortgage under Walsh v Lonsdale
(contract, WTS and clean hands)
Can a mortgage be created over an equitable interest? If so, how?
Yes,
- in writing; and
- signed
(e.g. co-owner has equitable interest under a trust and wants mortgage for it)
^ ahh i get it so the mortgagor would have the equitable but not legal interest - so doesn’t need to be by deed because not legal
When deciding which remedy to pursue, what must mortgagee (lender) consider?
Avoiding a course of action which would increase the burden on the borrower
Remedies available to lenders relating to a legal mortgage?
(nb only dealing with legal not equitable mortgages in this course)
- possession
- the power of sale
- debt action
- appointing a receiver
- foreclosure
Which remedies will bring a mortgage to an end?
Foreclosure
Power of sale
Which remedy is used as a precursor to using other remedies?
Right of possession
(usually before power of sale or appointing receiver)
When does the right of possession of a lender (mortgagee) arise?
Immediately
Borrower does not to be in default
(in practice only really exercise when in default and usually in conjunction with other remedies)
What does ‘possession’ mean in context of mortgagee remedies?
What if property being let ?
- Taking physical possession (ousting borrowers); or
- If property let, directing that tenants pay their rent to the lender instead of borrower
Is court order required for lender to possess property?
Always if occupied as dwelling-home
Otherwise if can retake possession without threatening or using violence, no court order required
Usually no order if:
- property empty; or
- let out so directing payments made to them
(otherwise you cannot threaten violence and so will need a court order)
What must a lender do before starting proceedings to possess a residential property?
Comply pre-action protocol
Promotes open dialogue to attempt resolve arrears
Includes considering selling property and re-scheduling debt to avoid the proceedings - weighted in favour of borrower
Rights of borrowers in possession proceedings?
When do these rights apply?
Ask court to exercise its discretion to:
- Adjourn (ie temporarily end) proceedings; or
- If possession order made, suspend or delay the possession
Only apply if:
- lender started proceedings
- dwelling; and
- likely to pay any arrears in reasonable period
(reasonable period = remaining period of mortgage)
Must be able to prove via a financial plan
How can lender recover debt via possession?
They can use the income to pay the debt owed
But they must;
- account to borrower for any sum beyond what is owed to them
- manage property with due diligence and if don’t, account for any income would have received if had managed properly
If property produces income, which remedy is best for a lender: appoint receiver or use income to pay debts?
Appoint receiver
Don’t have strict duty to account to borrower
And liability is passed to receiver as the borrower is solely responsible for acts of receiver (so no recourse to lender for receiver’s acts/omissions)
When can a lender exercise power of sale?
Power of sale must:
- Exist
- implied into mortgage unless excluded - Arisen
- legal date for redemption (ie payment) passed
- (usually) one month into mortgage - Exercisable
- may state circumstances in mortgage
- otherwise, rely on one of below:
A) Not repaid loan within 3 months of notice being given;
B) 2 months interest due; or
C) Breached mortgage term
(other than to pay money or interest on it)
eg repair
Duties of lender vs buyer when selling
Lender must ensure power arisen and become exercisable
Buyer only needs to check power exists and arisen (don’t need to check it’s become exercisable)
Duties of a seller in exercising power of sale?
who to? who is onus of broof on?
Borrowers:
- act in good faith and not cheat them
- reas care to obtain true market value
- if fail to obtain, account for difference
(to buyer/anyone else with equity redemption ie subsequent lender)
- onus proof on borrower
don’t need to delay sale to get the max price
What is equity of redemption (for borrowers)?
When does it not apply?
Once fully repaid debt, to recover assets which are subject to the debt
So if power of sale exercised, must account to borrowers for any extra amount received from sale (in excess of debt owed)
Doesn’t apply if lender sold via foreclosure as equity of redemption is extinguished
What rights will buyer get if purchase property from lender?
takes whole estate of borrower free of any estates or interests which the lender took priority over
But subject to any interests which lender did not have priority over
Responsibilities of a selling lender of proceeds of sale ?
Order of payment?
Trustee of the proceeds
Must use to pay:
- costs of redeeming any mortgages which had priority over their own
- their expenses of sale
- their own mortgage; and
- any balance to person entitled under equity of redemption
(ie buyer and/or subsequent lender)
Explain right of lender to debt action?
(inc limitation period and requirement before can bring)
can use debt action to recover based on borrower’s covenant to pay
Legal date for redemption must have passed (usually one month into term)
Limitation Act - can only recover within:
- 6 years for recovery of interest; and
- 12 years for recovery of capital
ReDEBTion or redemption!
When may debt action be helpful to lender in conjunction with other power?
If exercised power of sale but proceeds don’t repay the debt in full
Can recover shortfall
When can a lender appoint a receiver?
Property produces income e.g. lets tenants
Power must exist, have arisen and be exercisable
Formalities for appointing receiver
Must appoint in writing
Up to lender who they appoint
Powers of an appointed receiver, including what must use this for?
Demand and receive income from property.
Must use the income to pay:
- outgoings on property (eg bills)
- interest on prior mortgages
- insurance, repair and own costs
- interest on current mortgage
- capital on current mortgage
- balance to borrower
Does a receiver have powers to sell property?
Not under statute
But terms of mortgage usually extend the powers of receiver to include power of sale
Appointed receiver is considered to be the _____ of _____ - and impact of this?
Agent of BORROWER
Means borrower is solely responsible for acts/omissions of receiver
So no liability for lender
What are the duties of an appointed receiver and who are they to?
To:
Lender, borrower and anyone with equity redemption (ie subsequent lender)
Duties (SAME AS LENDER):
- ensure no own-interest conflict (eg purchase property themselves)
- good faith
- reasonable competence
- reas care obtain true market value when sell
- no obligation to try and increase its value
If there is a conflict between interests of lender and borrower, whose interests CAN appointed agent put first?
Lender
Who must lender apply to to get foreclosure?
When?
Apply to High Court
Once legal date redemption passed
Nisi absolute etc sounds fancy like HC
What are the two stages of foreclosure?
Explain each one
Apply where ?
How long between ?
Apply HC for each. Both are court orders.
- Foreclosure Nisi
- accounts re amount owed prepared; and
- period of 6 months (usually) to pay.
THEN
- Foreclosure Absolute
- If not paid, vests title in lender
- Extinguishes equity of redemption held by borrower
(no longer have a right in property if repay debt)
What happens if lender uses foreclosure and property is worth
A) More
B) Less
than sum owed
And impact of this on advice
Lender entitled to keep surplus
(makes sense why foreclosure absolute extinguishes equity of redemption)
If worth less (negative equity), borrower released from liabilities and have to take the hit
So lender would not use if worth less
esp considering how much of a faff it is / court proceedings etc
- could instead do power of sale and debt claim if want them out
- or receiver/debt claim
Protections for borrower if lender exercises right to foreclosure?
- Court discretion re-open foreclosure proceedings, even after absolute order; or
- If dwelling, borrower can apply to adjourn (ie POSTPONE !!!) proceedings; or
- Application by anyone with equity of redemption for JUDICIAL SALE - will preserve equity of redemption in favour of borrower
👨⚖️
(e.g. another mortgagee)
(^ makes sense. would not want to lose equity of redemption as means u wouldn’t get anything.)
If landlord forecloses, will it have remedy to recover shortfall?
No - will extinguish the mortgage and leave with no right to bring debt action
(better to exercise power of sale if lower value as leaves you with right to pursue debt action)
How long can a lease be granted for by freeholder vs tenant?
Freeholder = as long as like
Tenant = term shorter than their own term
Formalities for a lease to be legal:
A) over 3 years
B) 3 years or less
A) over 3 yrs:
Deed to be legal
(signed witnessed delivered I’m deed)
B) 3 yrs or less
parol lease which requires no formalities/can orally create if:
1. immediate right to possess / enjoy
2. best rent can reas obtain (ie market rent)
- landlord not charge fine or premium
(ie one-off capital sum)
Essential characteristics of a lease
- must be for duration permitted for a leasehold estate.
i.e. fixed ascertainable duration - start and end date
(eg could not be period of war) - The grant must give exclusive possession.
- The grant must have the correct formalities
DEF
What will court consider in terms of whether lease or licence / label given to it?
Substance of agreement - not simply its form.
Only when 3 requirements are met, a lease has been created (even if the agreement is labelled a licence).
Key differences between EFFECT of lease or licence
(left hand side = lease)
- proprietary vs personal right
- can be assigned to new tenant vs cannot
- statutory protection vs not
can revoke whenever - exclusive possession vs exclusive occupation
Drafting - how to do a lease for life
create lease for 90 year term and would end on death of tenant /how described in agreement
“this lease shall last for 90 years”
Does a break clause prevent a lease from being for a fixed ascertainable duration?
No
Can still bring to premature end even if there is a break clause
When will there be exclusive possession?
Inc:
- will landlord having a 🔑 negate EP?
- exclude all inc landlord;
- does not need to be in occupation to enjoy possession
even if lease says no EP, if in reality occupier has general control of the property then there is EP
- LL 🔑 does not negate EP
e.g. no general control where in hostel and terms have conditions like can enter at any time / change room without notice / can’t invite friends
Will a service occupancy create a lease or licence
(ie employer allows employee to live in employer’s accommodation for better performance of duties)
No - licence.
Ends when employment ends.
E.g. farmworkers
(employment = licence. Employment and licensing!)
Will a flat sharing agreement be a licence or lease?
(ie each occupier signs agreement)
(joint and exclusive possession - do the agreements need to read together?)
Lease - agreements INTERDEPENDENT - couple benefit.
(have to read together)
eg identical terms/signed same day/sharing same bed
Licence - H dawg. Licencesed baby.
agreements INDEPENDENT and not confer EP on any one party
eg different dates, different rents, bedrooms occupied on rolling basis
Consider circumstances to see if intention was joint and exclusive occupation
Does payment of rent suggest whether lease or licence?
Not strictly
But supports view that parties intended a landlord / tenant relationship
Main lease covenants which tenant and landlord will give?
Tenant’s covenants:
* rent
* contribution to insurance
* repair
* alterations
* alienation.
Landlord’s covenants:
* quiet enjoyment
* insurance.
What obligations are implied by covenant in a lease?
(not explaining - just what are they)
(even if not express)
Relate to LL only:
- quiet enjoyment 🤫
- obligations in respect of fitness of the property 🏋️♀️
Explain landlord’s implied obligations re fitness of property 🏋️♀️
- If dwelling house, keep all below in repair:
A) structure/exterior
B) water/gas/electricity/sanitation installations
C) heating/water heating installations
Only liable if been notified of actual disrepair.
Explain implied covenant that landlord will not interfere with quiet enjoyment of property?
comm prop and resi:
- not absence of noice, but not regular and excessive
resi only (PEA 1977):
- can’t unlawfully deprive of occupation
- offence to interfere peace / comfort with intention of causing them to give up occupation (❤️ this - Molly !)
4 different positions in leases regarding alienation covenants?
- Open contract position
- no covenant, tenant can do with lease as wish - Absolute prohibition
- don’t do anything w lease
- statute does not alter - Qualified covenant
- don’t deal with lease w/o consent
- statute converts to fully qualified
- those written application response rules apply (see PP) - Fully qualified cov
- don’t deal with lease w/o consent, which won’t unreas withhold
When will a covenant be old/new?
Old lease if executed prior to 1 January 1996
New otherwise
Think created BEFORE 1996 then old - Hannah just on the cusp of not being old
Old leases:
Privity of estate means new tenant entitled to and liable to what?
- Exclusive possession
- But liable to
- pay rent
- Has lease vested in them
(this isn’t that deep minor point in textbook!)
Old leases - what type of breaches will T2 be liable to landlord for?
Inc examples
(nb: T1 will still liable for these type of breaches too, but T1 can be liable for these breaches AND other breaches, whereas T2 can only be liable for these breaches)
Breaches of all real covenants in the lease
Real covenants = positive and restrictive covs which touch and concern land.
(i.e. benefit land not owner, affect nature/quality use and not personal)
e.g. rent
taxes
repair
but NOT a personal promise by T1 to landlord
(eg to give red rose first day every month)
If landlord sells or assigns their reversion (ie freehold interest) and an OLD (!!!) lease is in place, what happens?
Benefit and burden of LL’s real covenants (touch and concern) pass to new landlord
So new LL can sue original or current tenant for breaches, as original LL would have
Assignment of NEW lease
- what covenants pass to a new assignee (new tenant)?
ALL of them unless expressed personal
(don’t need to touch/concern)
think it is all except haed rent
So they take benefit and burden
And assigning tenant released any liability
s5 ltcta 1995
If new lease (1996 onwards) and freehold sold, which landlord would be liable?
New LL takes burden and benefit of all covenants unless they are personal
Outgoing LL must secure a release by following ss 6 and 8 LTCA 1995 criteria or remains liable
or original LL can inc clause in original lease that their liability ends if sell
If they haven’t been released, tenant can pursue either or both.
When may a landlord be able to sue an original tenant who has assigned their interest under a new lease?
Outgoing tenant entering AGA
i.e. they agree that incoming assignee will perform covenants and if don’t, LL can take action against original tenant (who gave the AGA)
What type of obligation is provided under an AGA and what is the effect of this?
i.e. primary or secondary?
Primary obligation
Means LL can pursue the former tenant without trying to take action against the current tenant
when will an AGA stop being of effect?
if the assignee assigns their interest - AGA only guarantees performance by immediate assignee
(so whoever has assigned to current tenant)
(i.e. if AGA is with T1 original tenant, who assigned to T2, but T2 then assigns to T3, then can’t use T1’s AGA to sue T1)
What rights may a landlord have if original tenant assigned their interest to assignee who since declared bankrupt ?
(assuming the trustees in bankruptcy don’t take the lease)
If such term in AGA can require original tenant to enter into a new lease with them if disclaimed trustee bankruptcy or liquidator
When can a landlord seek an AGA?
Only if:
- lease contains covenant against alienation (ie selling their lease) without LL’s consent; and
- either reasonable to seek AGA or, if commercial lease, is condition of landlord giving consent to assignment
New lease vs old leases - can former tenant who is liable for an assignee recover from the assignee?
New lease:
- take action at common law: if discharged liability of another, can seek to recover it from that person
- express indemnity given by that assignee
(no implied indemnities for new leases - makes sense cos no privity contract so may not be liable unless AGA)
^ but not implied
Old lease:
- common law as above
- express indemnity in deed of assignment
- if no express indemnity, implied into any assignment for value by statute
When and how can landlord pursue former tenant or former tenant’s guarantor for rent and consequence for them ?
What section? Need to know section!
s 17 Landlord and Tenant (Covenants) Act 1995
serve default notice re intend recover fixed sum
within 6 calendar month of it being due
(e.g. if not paid 7 m rent, could only recover 6)
If former tenant or former tenant’s guarantor then pays, can request overriding lease from LL.
(sep card in PP but only former tenant’s guarantor if:
- old lease (even if guaranteed tenant assigns, likely liable); or
-new lease only if required to guarantee outgoing tenant’s obligations under AGA - means indirectly guarantee incoming T)
When will a former tenant get an overriding lease and what is this/its effect?
i.e. what will the overriding lease look like
(s 19 LTCA 1995)
When?
LL serves default notice under s 17 Act on former tenant, who pays
Overriding lease is:
- same duration as original lease minus 3 days
- on same terms as original lease; and
- granted by LL to former tenant
EFFECT:
former tenant becomes LL to defaulting assignee, but must pay rent to LL and comply with original covenants.
What 3 remedies are available to landlord for non-payment of rent?
- Debt action
- Commercial rent arrears recovery
- Forfeiture
(and rent deposit deed/guarantors)
How can landlord bring debt action against tenant for non-payment of rent?
Disadvantage?
(does it bring lease to an end, who can it be brought against, how to obtain, limitation period and potential disadvantage)
- not a damages claim / does not bring to an end
- recover in High or County Court
- Limitation period of 6 years
- can bring against current tenant or former tenant
- former tenant must be served default notice
- since debt claim acknowledges existence of lease, may waive right to forfeit
when is commercial rent arrears recovery available against and procedure?
(inc who is it available against, conditions, effect, appeals?, how it works, is court order required?)
- enter property and seize and sell current tenant’s goods
- only available against tenant in possession
- at least 7 days worth of rent due
- give 7 days notice of intention to enter
- must use enforcement agent can enter/remove goods
- goods will then be bound to landlord
- 7 clear days notice of sale and at public auction
- rent paid from proceeds of sale
- tenant can challenge notice in court
- NO COURT ORDER REQUIRED
- Goods used for the tenant’s personal use, or their business/profession, are exempt up to a total value of £1,350.
- Only goods up to the value of the rent arrears can be seized.
limits to commercial rent arrears cover?
also is there limits to what can recover for?
- can only recover rent
(no insurance payments etc) - does not bring lease to any end
- acknowledges existence of lease and so may waive right to forfeit
- might not be worth it if the business does not have anything of value
What is right to forfeiture for non-payment of rent and requirements to be able to bring it?
(not the procedure)
- gives LL right to enter and re-take possession, thus terminating the lease
- only against tenant in possession
- must be expressly reserved in lease
- common law requires formal demand to be made but lease can disposense of this
- lease can vary on how many days rent must be outstanding but a lot fo flexibility
The Law of Property Act 1925 stipulates that landlords must serve a formal demand for all the rent due before starting forfeiture proceedings for rent arrears, unless the lease expressly says that such demand isn’t required.
When may landlord waive right to forfeiture?
If right to forfeit arisen but their own conduct deemed to have waived breach
Implied waiver if recognised continuing existence of lease despite breach
inc by accepting or DEMANDING rent - inc by CRAR/debt
but not waived if LL shown no longer regard lease as substisting
eg possession proceedings
Procedure for forfeiture due to non-payment of rent?
What would be criminal offfence?
Must make formal demand by showing up at premises on due date (unless lease exempts)
Then:
- peacefully re-enter premises; or
- obtain possession order in courts
Need possession order if dwelling
Criminal offence if reposess via force
When will a landlord need a court order for forfeiture?
property or any part of it used as a dwelling
What relief may court give tenant against forfeiture and when/effect of relief?
- Pay all arrears and costs before trial, court generally must grant relief
- If LL re-entered with a court order, can apply for relief within 6 months - court’s discretion
- If non-resi and LL re-entered w/o court order - no time limit - court’s discretion
(fair that no time limit since never been ordered by court so they had less control over it!)
Effect:
- Tenant retakes on terms of original lease, as if no forfeiture
What remedies are available for landlord for breach of covenants other than non-payment of rent?
- Damages
- Specific performance
- Forfeiture
- Self-help remedy (Jarvis v Harris)
does a damages claim bring lease to one end?
no
how will damages be assessed and limited for breach of lease covenant?
ordinary contractual rules
so limited to reasonably forseeable consequence of breach
if for repair covenant - get diminution in value, not cost of repair
(what worth then vs what worth now - NOT how much repairs cost)
explain to client: loss in value to property based on repairs, rather than the cost of repairs. likely not to recover in full.
who can damages claim be brought against ?
(breach cov)
Former tenant if old lease or age; or
Tenant in possession; or
Both
Procedure for bringing/responding to DAMAGES claim (for breach cov other than non-p of rent)?
Time limit to respond?
DAMAGES:
- over 7 years. over 3 yrs left.
- notice served that right serve counter-notice
- 28 days to serve counter-notice
- if counter-notice served, LL can’t take further action w/o leave of court
(if less 3 yrs/7yrs etc, no need to serve notice)
(NB if forfeiture:
- if lease more than 7 years with 3 years or more left on the lease before expires, serve s 146 LPA notice on tenant
(specify breach, require remedy (if capable); and require compensation (if desired)).
Will specific performance bring lease to an end and when will it be an available remedy to a LL?
No
Rarely used as damages adequate
Discretionary and against tenant in possession only
For breach cov other than non-payment of rent
Perhaps if:
- no forfeiture or self-help clause
- damages inadequate cos deterioriating
Explain how forfeiture can be brought by landlord for breach of covenant OTHER THAN non-p of rent?
(what is it, requirements, procedure and what may happen next)
Distinguish which bits same as forfeiture for breach rent
Same:
- peaceful re-entry or court order if dwelling
- ends lease
- must be reserved in lease
- must not have waived
Different:
- must serve s 146 notice:
1. Specifying breach
2. Require remedied in reasonable time (if capable of remedy); and
(if breach alienation cov - not capable of remedy - so no need require)
3. Require compensation if desired
- if capable of remedy and tenant remedies in reasonable timeframe, no forfeiture
- if doesn’t comply, can forfeit. T can apply for relief.
^ if over 7 years and over 3 years left, right to serve counter-notice 28 days inc in notice AND disrepair.
What relief is available against a tenant/sub-tenant for forfeiture claim brought due to breach cov other than non-p of rent?
can seek relief
- court may grant as sees fit
- but must have clean hands
- if court grants, lease continues as if no forfeiture
nb if over 7 years / over 3 years and served counter notice within 28 days can only proceed w court order
what happens to an underlease if original lease is forfeited?
Ceases to exist
BUT
Subtenant can apply for relief, even if original tenant cannot
If get relief, court vests head lease in sub-lessee and on terms court sees fit
What remedies are available for tenants where LL has breached covenant?
- specific performance/injunction
(rare as damages usually adequate) - damages
(apply same as LL bringing against tenant i.e. ordinary contractual rules) - self-help
Explain the self-help remedies available to tenants where landlord breached covenant?
Can rent be withheld?
Can lease exclude?
Not entitled to withhold rent, but:
- common law set off
- can notify LL that repair needed
- if LL fails, can carry out themselves and withhold rent until LL repays for costs of repairs
OR;
- equity set off
- if tenant withholds rent and LL sues, equity may set off tenant’s claim set off against liability for rent
- but 2 claims must be connected (i.e. tenant’s claim arise directly from reli of LL / tenant)
leases can exclude effect of both ^
Ways of terminating a lease?
- effluxion of time;
- notice to quit;
- break clause;
- surrender;
- disclaimer;
- frustration;
- repudiatory breach;
- merger; and
- forfeiture.
Explain how notice to quite can terminate a lease?
Inc minimum time periods
by either LL or tenant to end PERIODIC tenancy.
general rule is one full period’s notice, but:
yearly tenancy - minimum 6 months notice.
tenant lives there - minimum 4 weeks notice.
expires at end of next completed period.
e.g. monthly tenancy, serve notice on 14 Aug, notice would expire on 30 September
(and would have to leave by then)
(end of next clear period)
Explain how lease can be terminated by surrender? Does it impact an underlease?
If tenant yields up lease to LL who accepts the surrender (so both must agree)
Lease merges into reversion and extinguishes
Deed required
Does not terminate any sublease
(eg surrender in wr - probs want top formalities to be sure so deed / wouldnt impact wr with other countries and must agree)
Explain when a lease will end via disclaimer? Does it terminate sub-lease?
If tenant bankrupt
Trustee in bankruptcy/liquidator can disclaim contracts which give rise to liability
Disclaimer would terminate
Doesn’t apply to subtenant so they could seek order to become new tenant
Could a lease be terminated via frustration?
No cases where it has done but may apply if property destroyed / disappears
Can a breach terminate a lease?
Only if repudiatory i.e. fundamental / goes to root of contract
Other party may accept the repudiation and regard as terminated
Limited case law
When may a merger terminate a tenancy?
tenant acquires landlord’s estate;
or TP acquires lease AND reversion
In both cases, lease automatically merges with reversion and extinguished
(unless expressly preserve lease)
Owner of unregistered land must show ______ have had ____ for a period of ______ to prove ownership?
Them and their predecessors in title have had uninterrupted possession for a period of 15 years.
i.e. epitome title 15 years
What is an epitome of title?
Bundle of deeds and documents (a schedule with photocopies of the docs attached) to show uninterrupted possession of unregistered land.
What does epitome of title start with?
Good root of title
(as in that is most recent doc)
What is good root of title?
i.e. requirements - and what doc usually will / will not suffice
Document which:
- shows ownership of the whole of the legal and equitable interest in the land;
- contains a recognisable description of the land;
- does not cast any doubt on the title; and
- is at least 15 years old.
Usually a conveyance as title assumed to have been investigated when conveyed.
NOT A GIFT !!!! because recipient not investigate
What will epitome of title for a lease be?
(ie when lease being sold and new purchaser of lease)
Lease itself
Plus docs showing uninterrupted possession for period of 15 years (or shorter period if lease is for shorter duration than 15 years)
Should you use the earlier or later root of title?
I think the newer one but if there is an older one which references pre-root third party rights (covenants etc), ask for a copy of that AS WELL
___ must investigate title
Buyer
Disadvantages of unregistered land
- epitome of title could contain forged docs
- investigating time consuming (and so expensive)
- bundle of title deeds may be lost
- old docs can be hard to read
- if epitome reveals no TP rights, buyer may unwittingly purchase burdened land
What third party rights will a buyer of unregistered land be bound by?
All legal estates and rights (apart from puisne mortgages)
i.e. legal mortgage which is not protected by title deeds
(bcos legal rights/interests bind the world - buyer bound whether or not they know about them)
When will equitable interests run with unregistered land?
- Protected by registration of land charge; or
- Doctrine of notice
What can be protected as a Land Charge?
(nb pretty much just for unregistered land)
- estate contract
(contract to create/convey legal estate in land eg to sell land) - restrictive covenant
- an equitable easement
- a home right
- puisne mortgage (nb can be elgal)
(key ones for this module)
Who is responsible for registering a Land Charge and who/what against?
Onus on person holding equitable interest.
Register against the freehold estate owner - NOT the parcel of land.
(issues if uses different versions of name or rights holder has no access to title deeds)
Effect of registration and late registration of land charge?
Registration = bound (actual notice)
Not registered BEFORE completion a and paid money or money’s worth (market rate) = not bound
nb knowledge of buyer irrelevant
e.g. farmer with option to buy, protected by estate contract, had no actual notice and only registered on Land Charges register AFTER bought for market rate - not bound
Good practice for buyer investigating epitome of title?
What if do this but still bound?
search against names of ALL estate owners releveled in epitome (inc who pre-date root)
nb if bound despite best practice, may be entitled to statutory compensation for loss
Good practice re searching Land Charges register and why this is good practice?
Search against names of ALL estate owners releveled in epitome (including those who pre-date root)
Because will get search certificate from Land Charges Register conclusive in favour.
(nb rare but may be bound despite best practice - here, may be entitled to statutory compensation for loss)
What type of interests does the doctrine of notice apply to?
Equitable interests PRE-dating 1925
(if post-25 should be registered as Land Charge so not bound)
Interests under a TRUST whenever created
(but equity’s darling may protect)
How can beneficial interests over land under a trust be protected in unregistered land?
ONLY via doctrine of notice
Can never be protected by Land Charge registration
When will a buyer be bound by trust interest over their land?
(explain part 3 the most)
i.e. unregistered land trust interest wil bind u unless u are equity darling !!!0
If they are ‘Equity’s Darling’
i.e. they are:
Bona fide
(no fraud)
Purchaser for value
(not a gift - any consideration is fine)
Of a LEGAL estate or interest
(i.e. falls in 1(1) or (2) and met formalities)
- if they are buying an equitable interest, will be bound by the other TP right if that was created first
‘where the equities are equal, the first in time will prevail’
Without actual, constructive or imputed notice
Explain the 3 types of notice for an equitable interest to be binding against a TP?
- Actual
- buyer knows e.g. seller alerted
- rumour/gossip doesn’t count - Constructive
- buyer is obliged to inspect land, investigate title and make enquiries which reasonable person with competent legal advice would
- should look for TP rights
e.g. worn track indicating RoW
e.g. any other occupants
- if fail to, bound
- not obliged to look in drawers - Imputed
- if buyer is legally represented and their representative is aware, even if the buyer hasn’t been told
What is overreaching and when will it apply?
allows buyer to take property free of any beneficiaries’ trust interest over property
pay purchase price to minimum of 2 trustees
(Nb trustees HOLD THE LEGAL ESTATE!)
beneficial interests under trust then lift from property and shift to sale proceeds
(so beneficiaries no longer have interest as their interest is in sale proceeds)
key classes of land charge *
C(iv) an estate contract
(mark would drive a class c merc e.g. option to buy is an estate contract)
D(ii) a restrictive covenant
(restrictive covenant just gives D)
D(iii) an equitable easement
(bit happier so extra i)
F a home right
(stay away from my home mark !)
C(i) puisne mortgage
(dont need to know numbers letters)
Explain the indemnity, insurance and mirror principle in context registered land?
(don’t think super important)
Mirror principle = land registry is a more complete reflection of title
Insurance principle = accuracy of registry reflected by state
Indemnity principle = anyone impacted by errors in register can claim compensation
What events trigger first registration?
- Sale, gift, court order (e.g. divorce) or assent (PRs transfer to beneficiary will) of a qualifying estate
Qualifying estate = any unregistered freehold or unregistered leasehold with MORE than 7 years left to run
- Creation of a mortgage
(of freehold and/or leasehold)
What is a caution against first registration? Is it binding?
No substantive effect
Warning by a person who claims an interest in unregistered land
Who can apply for voluntary registration and what is the incentive?
qualifying estate owners
(i.e. any unregistered freehold or unregistered leasehold with MORE than 7 years left to run)
Fee discount
(ahh so you would register before sale etc)
how long to register previously unregistered estate? (if registration is required)
2 months from date of transfer/gift/lease/assent
Effect of late registration where unregistered estate is required to be registered?
fails to create legal interest (e.g. legal estate/legal lease/legal mortgage)
and equitable interest held until registration completed
LR may extend period for registration if good reason
What are registrable dispositions?
4 main examples?
Must be registered to be legal:
1. transfer of registered freehold
2. grant of legal lease of more than 7 years over a registered estate
3. grant of a legal charge
(e.g. mortgage)
4. expressly granted LEGAL (!!!) easement or profit over registered land
If there is more than one mortgage registered against title, what is the order of priority?
which they are entered on the register (s 48 LRA 2002)
not the date of creation of the charges. T
his means that the mortgage that appears first in time will rank first
What are ‘minor interests’?
Include examples
Third party interests in land which are not:
- capable of substantive registration (ie freehold or leasehold w. 7 yrs left);
- registrable dispositions (inc charge eg mortgage and expressly granted easement); or
- overriding interests
Include:
- Estate contracts
- Home rights
- Interests under trust
- Equitable easements or profits created after 2003
- Equitable leases
- REstrictive covenants
How are minor interests protected?
(two types and include which register/what interests apply to)
do u need consent?
- Restriction
- for TRUST interests
(Trust me to restr (!) enter a restr(!!!))) propadms)
- on PROPRIETORSHIP register
- alerts buyer that registered proprietor has limited right to deal with legal estate so need overreaching
- prevents later registrable disposition which conflicts with trust interests
(e.g. terms of lease conflict with minor interest holders rights)
- can enter w/o freehold owner consent - Notice
(i NOTICEd that i started CHARGing once stopped rsetrict ing propadoms !)
- for interests other than trust
- CHARGES register
- consent of owner not required
- freehold owner can challenge a notice and claim damages if suffer loss
If neither of the above, buyer for consideration takes free
What are overriding interests, including the types of them?
Don’t appear on register but bind owner and any buyer.
They are:
- LEGAL leases 7 years or LESS
- interests of people in actual occupation
- implied and prescriptive easements
Buyer for valuable consideration takes land free except for:
- registered charges
- registered notices
(interests except trust?) - overriding interests
What are implied and prescriptive easements?
What type of interest are they?
Legal easements and profits created by implication or prescription AFTER Oct 2003
(20/30 prescription - 2003)
(not overriding if expressly created by deed because then they are registrable dispositions)
So easements/profits are overriding if not by deed but implied or prescriptive.
(necessity/W v B etc)
When will implied or prescriptive easements be overriding interests?
nb: overriding = registered only
Any of these conditions satisfied:
- Purchaser had actual notice
- Apparent on reasonable inspection of the land
- exercised at least once in year prior to land transfer
(and is implied/prescriptive)
2 steps to working out if something is easement is an overriding interest?
- is there an easement by implication or prescription?
- was there actual knowledge or reasonably obvs or exercised 1 yr before
When will interest belonging to someone in actual occupation be overriding?
- any proprietary interest
- not a PERSONAL right e.g. licence
(not an interest in land)
- not HOME rights
(statute excludes)
(also not easements - makes sense - use land so no actual occupation) (protected other ways anyway)
- and actual occupation
(physical presence, Q of fact - sep queue card)
When will there be actual occupation?
(nb overriding interests - proprietory interests)
- physical presence
- Q of fact considering type of property
- does not require personal presence
e.g. caretaker on behalf of company can occupy - degree of permanency and continuity
- temporary absence irrelevant if there is visible evidence of occupation
e.g. furniture - consider intent to return / reason for absence / personal circumstances
(e.g. mental hospital - intent to return)
Explain when there will be actual occupation of a COMMERCIAL PROPERTY ?
Examples of how may show it?
(for an interest to be overriding)
- must be some physical presence / degree permanency to make someone inspecting the land think
(still consider same stuff as for usual property like intent)
e.g.
- erecting fences/no trespassing signs/replacing locks
- regularly parking car in garage counts as ordinary use land
- renovations but visited every other day and were builders on site, could establish
Exceptions to overriding interest acquired by actual occupation / when would be lost despite satisfying conditions?
What’s the silly little equation x
- interest holder failed to disclose right upon inquiry when reasonably expect to
- occupation** not obvious** on reasonable inspection, unless buyer had actual knowledge
HELPFUL SUMARY - need:
- proprietary interest + obvious actual occupation; OR
- proprietary interest + non-obvious actual occupation + actual knowledge
can home rights be overriding?
NOPE!!! NEVER !
(nb might be able to claim as a common intention constructive trust interest - which could be overriding if in actual occupation) (or could be a minor interest if protected on proprietorship register as a restriction)
what rights cannot be overriding?
- not a PERSONAL right e.g. licence
(not an interest in land) - not HOME rights
(statute excludes) - not EASEMENTS (use land so no actual occupation)
self-help / Jarvis v Harris clause - will this be a debt action?
yes
(not for damages)
when is s 146 notice required?
This is true!!!!
DAMAGES
- if 3 years or more unexpired on lease (even if not 7 years)
- entitled serve counter-notice
FORFEITURE
- always
- only counter-notice 28 days if over 7 years and over 3 years left
FOR BOTH:
- specify breach
- reas timeframe if capable
- require compensation if desired
(re-cap: specify breach, require remedy in reas time (if capable), require compensation (if desired))
if lease ends 24.03.2024, last date for s 25 notice?
24.09.2023
(note it is same day like 24 - 24)
Severance by mutual conduct - when would it happen?
Don’t have to amount to express or implied agreement
Show clearly consider to have distinct shares
No decided case law on it.
Equitable right. Unregistered land. Post and pre-1925.
What’s the position?
Pre-1925
protected by doctrine of notice
i.e. bound unless
bona fide purchaser for value of legal estate w/o notice (constructive, actual or imputed).
Post-1925
- must be registered as land charge
^ e.g. equitable easement
Trust interests
- doctrine notice only
what to advise buyer equitable interest over land
- Check if in use via property info form
- Allow continued use
- if caution registered, LR would warn off the right
- if confirm continue to enjoy benefit, will be NOTED against title - ask if consent in writing to not using. if agree, cheap and simple.
- if agree, ask LR to remove caution and send evi of agreeement - negotiate
- still need written consent to relinquish
- still ask LR to remove any caution and send evi of agreement
e.g. fund a gate from their garden to allotment - if refuse negotiate and successfully maintain right, see if can negotiate financial compensation for loss of right (we compensate them) and record agreement in deed. register that at LR.
