M V Flashcards
A mother took her child to school to board a bus for a school trip. She left the child on the bus and went home. The bus then departed with the children on board and was involved in an accident caused by the negligence of the defendant. The mother received a telephone call at home notifying her that the child had been severely injured in the bus accident. The mother immediately collapsed from shock and is later diagnosed as suffering from a medically recognised psychiatric illness caused by shock.
In a claim by the mother against the defendant, which of the following statements best describes the likely outcome of the claim?
The mother cannot recover damages for her psychiatric illness because she was not in the actual area of danger created by the defendant’s negligence.
The mother can recover damages for her psychiatric illness because it has been diagnosed as a medically recognised condition.
The mother cannot recover damages for her psychiatric illness because she did not witness the accident in which her child was injured.
The mother can recover damages for her psychiatric illness because she has close ties of love and affection with her child, who was the immediate victim of the defendant’s negligence.
The mother can recover damages for her psychiatric illness because it was preceded by her physical collapse.
(C) The mother cannot recover. The mother has suffered psychiatric harm without physical impact. She is a secondary victim of the defendant’s negligence. For a duty of care to be owed to a secondary victim who suffers a medically recognised condition caused by sudden shock, the following must all be satisfied: (1) it must be reasonably foreseeable that a person of normal fortitude would suffer a psychiatric illness; (2) the claimant must have close ties of love and affection to the immediate victim; (3) the claimant must have been present at the accident or its immediate aftermath; and (4) the claimant must have witnessed the accident with her own senses. On the facts, the mother was told about the accident on the telephone, she did not witness it herself, so she does not satisfy all of the criteria for a duty of care to be owed to her. (B) is not correct. A medically recognised psychiatric illness is necessary but is not sufficient, as explained above. (D) is not correct. Close ties of love and affection are necessary but are not sufficient, as explained above. (A) is not correct. The fact that the mother was not in the area of danger means that she could not recover as a primary victim. However, she is not seeking to recover damages for psychiatric harm caused by any danger to her but rather caused by her relationship to another person injured by the defendant’s negligence. She is a secondary victim but cannot recover because she did not satisfy all of the aspects for a duty of care to be owed to a secondary victim. (E) is not correct. The mother’s physical collapse was caused by shock. The special rules for duty of care (described above) apply to shock-induced physical conditions, such as the collapse, in the same way as they apply to psychiatric conditions caused by shock
A teenager purchased a motorbike from a retail shop. He rode it on an off-road track over very rough terrain. As he bounced over a rock he landed hard and the shock absorbers failed, causing him to crash and suffer serious injuries. The shop has since gone out of business, so he made a claim against the manufacturer. The teenager produced evidence showing that the shock absorbers were dangerously inadequate under off-road conditions. He also relied on advertisements showing pictures of the motorbike in an off-road setting. The manufacturer presented evidence that the teenager had received the owner’s instruction manual which warned that the bike was not suitable for off-road use.
In a claim by the teenager against the manufacturer under the Consumer Protection Act 1987, which of the following circumstances would NOT be relevant to the claim?
The fact that the retail shop where the teenager purchased the motorbike has gone out of business.
The expectations of consumers as to the safety of a motorbike.
The advertisements showing the motorbike in an off-road setting.
The warning in the owners’ instruction manual.
The fact that the shock absorbers were dangerously unsafe for off-road conditions.
A) The fact that the retail shop has gone out of business is not relevant to the claim. In a claim under the Consumer Protection Act 1987 (‘CPA’), the manufacturer of the motorbike would be a potential defendant as producer of the motorbike. In contrast, the supplier of the product (the retail shop) would be liable under the CPA in very limited circumstances – and even if it were also liable, liability is joint and several, so the teenager can seek recovery of the full amount of his damages from the manufacturer in any case. Therefore, whether the retail shop has gone out of business is not relevant to the teenager’s claim against the manufacturer. (B) is not correct. The expectations of consumers as to the safety of a motorbike are relevant. Liability under the CPA depends on showing that the product was defective, and a product is defective if its safety is not such as persons generally are entitled to expect. (C) is not correct. The advertisements showing the motorbike in an off-road setting are relevant to the issue of whether the product was defective. They are part of the manner in which the motorbike was marketed, and this is one of the factors in determining whether the safety of the product was such as persons generally are entitled to expect. (D) is not correct. The warning in the owners’ instruction manual is relevant to the issue of whether the product was defective. Instructions and warnings issued with the product are factors in determining whether the safety of the product was such as persons generally are entitled to expect. (E) is not correct. The fact that the shock absorbers were dangerously unsafe for off-road conditions is relevant because it supports the argument that the product was defective.
An investor and a sports club owned adjacent plots of land. The sports club was granted planning permission and constructed four tennis courts on its property. The courts were equipped with very bright lights for nighttime use. The courts were in constant use and remained open and illuminated by the lights until late every night. The investor then decided to use his plot of land to build a large dwelling house for himself. Once the house was built it became clear that the lights from the tennis courts interfered with the investor’s enjoyment of the house. He was obliged to install blackout curtains in all the bedrooms. There are no other houses in the vicinity so no one else is disturbed by the lights.
If the investor can establish that the interference from the lights is substantial and unreasonable, which of the following statements best describes the likely outcome if the investor makes a claim in nuisance against the sports club?
The investor will succeed because he has established the grounds for a private nuisance action.
The sports club will succeed in defending the claim because it obtained planning permission to build the tennis courts.
The investor will succeed because any degree of interference with a permitted use of his property is actionable as a nuisance.
The sports club will succeed in defending the claim because the tennis courts were built before the investor decided to build his house.
The investor will succeed because the glare from the lights constitutes a public nuisance for which he is suffering particular damage over and above the damage suffered by the public.
A) The investor will succeed in a private nuisance action. Nuisance is an unlawful interference with the claimant’s use and enjoyment of land. An interference is unlawful when it is substantial and unreasonable. Given that the investor has met this standard, he is likely to succeed. (B) is not correct because a grant of planning permission does not authorise a nuisance. (C) is not correct because the interference must exceed what is reasonable before it is actionable as a nuisance. (D) is not correct because it is not a defence to a claim in nuisance that the nuisance was already in existence before the claimant came to the nuisance. (E) is not correct. A public nuisance affects a class of the public. On the facts, no one other than the claimant is disturbed by the lights
Three sisters formed a limited liability partnership (‘LLP’). The eldest sister is the designated member. She also oversees day-to-day management of the LLP. Each sister contributed £200,000 upon formation of the LLP. After two years, the LLP is insolvent: its assets are £150,000 and its liabilities are £275,000. The sisters made no withdrawals from the business. The sister who is the designated member and one other sister each have a net worth in excess of £300,000. The other sister is insolvent.
What is the designated member’s maximum potential liability in the event the LLP is dissolved?
125,000 62,500 0 175,000 275,000
C) A limited liability partnership is a partnership that has a separate legal existence. The members are not liable for the debts of the LLP, and that includes the designated member. A designated member is simply the member appointed to perform certain administrative duties (such as to comply with filing requirements of Companies House). It does not matter that the LLP is insolvent or that one of the members is insolvent.
Three friends set up a partnership a number of years ago. The partnership agreement provides that the partnership shall continue so long as there are at least two partners. It also provides that a partner may retire on giving three months’ notice to the partnership, and that following the retirement, the remaining partners would have three months to decide whether to buy the retiring partner’s share; otherwise, the partnership will dissolve. There were no other terms in the partnership agreement. Following a dispute, two of the partners want to expel the third partner.
Which of the following statements is correct regarding expulsion of the partner?
In this partnership, a partner can be expelled by unanimous vote of the other partners.
In this partnership, because the partners have a right to withdraw on three months’ notice, a majority of the partners have a right to expel another partner.
In this partnership, a partner can be expelled if they are declared bankrupt.
In this partnership, a partner may not be expelled.
In this partnership, a majority of partners can apply to court for an order to expel a partner.
(D) Unless the partnership agreement provides for expulsion, partners do not have a right to expel other partners. The agreement here does not provide for expulsion and so the right to expel does not exist in this partnership. Therefore, all of the other choices are incorrect because they each provide that the partners have a right to expel.
A trading partnership has been in existence for five years. On 1 January 2021, one partner retires and a new partner joins the partnership. The partnership had already notified existing creditors that the retiring partner was no longer a partner as of 1 January and had also published notice of the retirement in the London Gazette. When calculating the value of the retiring partner’s share, existing debts were taken into account and the retiring partner has received an indemnity from the existing and new partners in respect of those debts.
Creditor 1 sold goods to the partnership on credit on 30 December 2020 and Creditor 2 sold goods to the partnership on credit on 2 January 2021.
Which of the following best describes the liability of the retiring partner and the new partner?
The retiring partner will not be liable to either creditor. The new partner will be liable for both debts.
The retiring partner will not be liable to either creditor. The new partner will be liable to Creditor 2 only.
The retiring partner will be liable for both debts. The new partner will be liable to Creditor 2 only.
Both the retiring partner and the new partner will be liable for both debts.
The retiring partner will be liable to Creditor 1 only. The new partner will be liable to Creditor 2 only.
E) A retiring partner will always be liable for partnership debts incurred whilst they were a partner, so the retiring partner here will remain liable to Creditor 1. (Note that an indemnity is an agreement between the partners; such an agreement has no effect on the retiring partner’s direct liability to third parties unless the third party also agrees.) However, a retiring partner can avoid liability for debts incurred by the partnership after their retirement if they give notice of their retirement. The partner should give actual notice to people who have dealt with the partnership whilst the partner was a partner and should put a notice in the London Gazette to alert people who have never dealt with the partnership whilst the partner was a partner
Six friends decide to open a business. They are interested in forming a limited partnership because they have heard that this business medium will shield at least some of them from personal liability.
What combination of partners must their limited partnership have?
At least one general partner and two limited partners.
All general partners except only one limited partner.
At least one general partner and one limited partner.
All limited partners.
All general partners.
(C) A general partner has unlimited personal liability for partnership debts and is responsible for managing the partnership. A limited partner is not liable beyond their capital contribution and is not permitted to be involved in the management of the partnership. A limited partnership is required to have at least one general partner and at least one limited partner. The other options are therefore incorrect.
A landowner wishes to apply for first registration of his property. While preparing the necessary documents, the landowner discovers that he has lost the title deeds to the property.
What class of title is likely to be granted when the property is registered?
Freehold title. Qualified title. Possessory title. Absolute title. Leasehold title
C) On first registration, Her Majesty’s Land Registry (‘HMLR’) is likely to grant possessory title since the unregistered title deeds to the property have been lost and cannot be produced. Possessory title is the class of title which may be awarded by HMLR if the application for title is based on factual possession of the land rather than documentary evidence. (A) is incorrect because it is not a class of title. A freehold estate is one of the two legal estates in land in England and Wales. (B) is incorrect because qualified title is granted when a specified interest is excepted from the effect of registration and is not covered by the guarantee of title which would otherwise be available. This class of title is not relevant here and is, in any event, rarely granted in practice. (D) is incorrect because absolute title is the best form of title that can be granted by HMLR. Whilst it is theoretically possible to obtain a title absolute with an application relating to lost deeds, the evidence produced to HMLR would have to be extensive and it would be very rare to secure this form of title in these circumstances. (E) is incorrect because this is not a class of title. A leasehold estate is the other of the two legal estates in land in England and Wales
A buyer has agreed to purchase a property from sellers who co-own the beneficial interest as tenants in common. The buyer’s solicitor has advised the buyer to pay the purchase money to two or more trustees so that the interest of the beneficiaries will transfer from the land to the proceeds of sale.
What legal process does the above describe?’ Overriding. Beneficial transfer. Severance. Overreaching. Declaration of trust.
Overreaching
The title to Whiteacre is registered at Her Majesty’s Land Registry. There are three registered charges on the charges register: the first registered in August 2010, the second registered in January 2013, and the third registered in December 2015. All three charges are residential mortgages using standard mortgage deeds. The registered proprietor has stopped making payments to the first lender but has kept up his payments on the other two mortgages.
Which of the following best describes the position of the first lender?
It can take possession proceedings only if it provides notice to the second and third lenders and both decline to take possession proceedings themselves.
It can take possession proceedings and can retain the sale proceeds in their entirety to pay off its charge.
It can take possession proceedings but will have to discharge the mortgages in favour of the second and third lenders out of the sale proceeds before it can pay off its own mortgage.
It can take possession proceedings and repay its own charge out of the sale proceeds first and then must pass on the balance of the sale proceeds to the defaulting registered proprietor.
It can take possession proceedings and repay its own charge out of the sale proceeds first and then must apply any surplus to the other two lenders in the order of registration of the charges.
(E) The first lender can take possession proceedings and repay its own charge out of the sale proceeds first and then must apply any surplus to the other two lenders in the order of registration of the charges. When a legal mortgage is entered on the register of title, it will have priority over any interest whose priority is not protected when the mortgage is registered. Here, the mortgages have priority in order of their registration on the register of title. Since the first lender has first priority, it can sell the home, repay its own charge, and then must apply the surplus to the other charges. Any surplus remaining thereafter goes to the registered proprietor. (A) is incorrect because the first lender may take possession proceedings without notifying or allowing the other lenders to do so first. (B) is incorrect because although the first lender can pay itself first out of the sale proceeds due to the doctrine of priority of mortgages, any proceeds left over must be applied to the repayment of the subsequent charges in the order that they were registered. (C) is incorrect because, as explained above, the first lender ranks first in priority and can pay off its own mortgage first. If there are any sale proceeds left once the first lender has been paid off, this will be paid to the second lender, and next to the third lender. (D) is incorrect because any surplus once the first lender has discharged its own charge will go to paying off the second and third mortgages. The defaulting registered proprietor will only receive any funds if there is any money left over once all three charges and the costs of sale have been paid out of the proceeds.
A client is about to commence proceedings for divorce from his spouse. He does not hold a legal interest in the matrimonial home and the title to the home is unregistered.
Which of the following describes how the client’s interest in the matrimonial home should be protected?
As a restrictive covenant on the Land Charges Register.
As a Class F land charge on the Land Charges Register.
As an estate contract on the Land Charges Register.
As a caution against first registration.
As a puisne mortgage on the Land Charges Register.
(B) The client’s interest in the matrimonial home should be protected by a Class F land charge. A Class F land charge protects a non-owning spouse’s (or civil partner’s) statutory right of occupation of the matrimonial home under the Family Law Act 1996. (A) is incorrect because a Class D(ii) land charge is the form of protection for a restrictive covenant, which is not at issue here. (C) is incorrect because a Class C(iv) land charge is relevant to protecting an estate contract, which is not at issue here. (D) is incorrect because a caution against first registration is the step that an owner of an interest in unregistered land will take to be notified as and when an unregistered title is submitted for first registration. Though title here is unregistered, the Class F land charge, as explained above, is the correct form of protection for the matrimonial home. (E) is incorrect because a Class C(i) land charge is the land charge that is relevant to protecting a puisne mortgage.
A solicitor is acting for a company that is acquiring freehold premises. The company intends to run a business from the property. The solicitor’s investigation of the unregistered title reveals a covenant that states: “Not to use the property otherwise than as a residential dwelling”.
Which of the following best describes whether the company will be bound by this covenant?
If the company has actual notice of the covenant, the company will be bound by the covenant.
If the covenant is registered as a restrictive covenant land charge, the company will be bound by it.
If the covenant is registered as an equitable easement land charge, the company will be bound by it.
If the covenant is more than 20 years old, the company will not be bound by it.
If the party with the benefit of the covenant cannot be found, the company will not be bound by the covenant.
(B) If the covenant is registered as a D(ii) land charge (restrictive covenant), the company will be bound by it. In the unregistered system, a D(ii) land charge is used to register restrictive covenants. If the covenant is registered as a D(ii) land charge, this constitutes notice of the covenant and will bind a buyer of the land. If the covenant is not so registered, it will not be binding. (A) is incorrect because, as explained above, registration as a D(ii) land charge is what constitutes notice – merely knowing about the covenant is not sufficient notice and does not bind a buyer. (C) is incorrect because the relevant protection is a D(ii) land charge. A D(iii) land charge protects an equitable easement. (D) is incorrect because the age of the covenant is irrelevant as to whether it will be binding. The covenant must be registered as a D(ii) land charge to bind a buyer. (E) is incorrect because this is not a relevant consideration for this issue.
Five friends buy a property together, each contributing £50,000. Four of the friends are over 18. One is 17 and her contribution came from money she just inherited from her grandmother. When they buy the property, the friends make no agreement as to co-ownership.
Which of the following statements best describes how the legal estate will be held?
All five friends will hold the legal estate as joint tenants.
The first two friends named in the transfer deed will hold the legal estate as joint tenants on trust for all of them.
The four friends who are over 18 will hold the legal estate as tenants in common on trust for all of them.
The four friends who are over 18 will hold the legal estate as joint tenants on trust for all of them.
All five friends will hold the legal estate as tenants in common.
purchased by more than one person, under the Trusts of Land and Appointment Act 1996 (‘TLATA’), a trust of land automatically arises for the benefit of all of the buyers. Under TLATA, up to the first four buyers named in the transfer deed who are over age 18 will hold the legal estate as joint tenants on trust for all of them. The trust is limited to the first four because the legal estate cannot be held by more than four trustees. (A) is incorrect because, as explained above, the legal estate may be held by a maximum of four trustees. (B) is incorrect because, under TLATA and the circumstances here (five purchasers), the first four over age 18 will be held to hold as joint tenants and not the first two. (C) is incorrect because under TLATA, no more than four can hold the legal estate. Further, the legal estate must be held as a joint tenancy. (E) is incorrect because, as explained above, this is not what happens under TLATA and the legal estate must be held as a joint tenancy
A brother and sister buy a piece of land together. Title to the land is registered. They enter into a declaration of trust on completion declaring that if the land is sold, the brother is entitled to 20% of sale proceeds and the sister 80%.
How will the declaration of trust be reflected on the register of title?
A notice will appear on the Charges Register
A Form A restriction will appear on the Proprietorship Register.
A Form A restriction will appear on the Property Register.
It will not be reflected in any way on the register of title.
A Form B restriction will appear on the Proprietorship Register.
(B) The declaration of trust will be reflected on the register of title as a Form A restriction on the Proprietorship Register. A restriction is used to prevent any dealing with the land otherwise than in accordance with the terms of that restriction. Where property is owned as tenants in common, there will be a standard form of restriction (Form A) that appears in the Proprietorship Register. The Proprietorship Register indicates the current legal owners of the property. Here, the declaration of trust indicates the brother and sister hold the behind-the-scenes beneficial interest as tenants in common. Thus, there will be a Form A restriction on the Proprietorship Register to indicate the existence of their beneficial interests, though the detail of the contents of the declaration of trust will not appear on the register. (A) is incorrect because a notice is placed on the Charges Register to indicate any encumbrances which affect the land, such as covenants or mortgages, which are not relevant here. (C) is incorrect because, as explained above, the restriction appears on the Proprietorship Register, not the Property Register. (D) is incorrect because, as explained above, the declaration of trust will be reflected on the register of title as a Form A restriction. While the detail of the declaration of trust does not appear on the register, the restriction is the means of putting the world on notice that there is an agreement behind the scenes as to the beneficial ownership. (E) is incorrect because the appropriate restriction is a Form A, not Form B, restriction.
A landlord leased commercial premises to a tenant for five years. The tenant has not paid the rent due under the lease for six months. The landlord drafted the lease himself and did not include a forfeiture clause in the lease. The landlord now wants to bring the lease to an end as he has found someone else willing to take a tenancy of the premises.
Can the landlord bring an end to the lease?
Yes, because a forfeiture provision is implied into every lease.
No, because the landlord waived the implied right of forfeiture by drafting the lease himself.
No, because there is no forfeiture clause in the lease, but the landlord can sue for non-payment of rent.
Yes, because a covenant for quiet enjoyment will be implied into the lease and the landlord can use this provision to regain possession.
Yes, because the landlord is entitled to demand a surrender of the lease due to the non-payment of rent.
(C) The landlord cannot bring the lease to an end because there is no forfeiture clause, but he can take proceedings for non-payment of rent. Forfeiture is the right of the landlord to re-enter the premises and bring the lease to an early end due to default by the tenant. The forfeiture remedy will not be implied into a lease on the landlord’s behalf, so the lease must contain an express provision for forfeiture. (A) and (B) are incorrect because, as explained above, the forfeiture remedy will not be implied into the lease; the lease must contain an express provision. There is no such waiver of this right if the landlord drafts the lease himself. (D) is incorrect because a covenant for quiet enjoyment offers protection to the tenant, not the landlord. The tenant is entitled to damages if the landlord interferes with the tenant’s enjoyment of the premises. This is not a remedy available to the landlord. (E) is incorrect because the landlord is not entitled to demand a surrender. A surrender is a deed which brings a lease to an end.
A landlord and a tenant orally agreed to a lease of an apartment for a term of two years. At that time, they agreed to rent payments at the market rate. The lease did not include any other provision as to rent. The tenant immediately took possession and began paying rent. One month later, a major corporation opened an office building next door, and rents in the neighbourhood increased significantly. After the first year, the landlord notified the tenant that he was increasing the rent by 50%. The tenant refused to pay more than the original rent amount. The landlord declared the lease void and ordered the tenant to leave.
In an action to determine the rights of the parties, what will be the result?
The tenant may stay in the apartment but must pay the higher rent.
The tenant may stay in the apartment and may continue paying the original rent.
The landlord may remove the tenant immediately.
The landlord may remove the tenant one month after a notice of termination of the lease is received by the tenant.
The landlord may not remove the tenant but may sue the tenant for the higher rent amount.
(B) The tenant will prevail and may stay in the apartment and continue paying the original rent amount. Generally, a lease must be made by deed. However, a legal short lease for three years or less may be created in writing or orally without a deed if: (1) the tenant takes possession of the leased premises, and (2) the lease is at market price rent. Here, the tenant took possession immediately and the lease was at market price rent. Thus, the tenant has a valid lease for two years at the market price rate and cannot be removed or forced to pay the higher rate a year into the term. (A) is incorrect because a landlord cannot increase the rent due under a lease in the middle of the lease term unless the language of the lease provides for such an increase, which it did not here. (C) and (D) are incorrect because a landlord may not force a tenant to leave before the end of the term of a valid lease so long as the tenant satisfies the conditions of the lease. Here, the tenant has refused to pay the higher rent, but this is not a breach of the original conditions of the lease. (E) is incorrect because, as explained above, the landlord is not entitled to raise the rent on the tenant in the middle of the term and therefore cannot sue the tenant for the higher rent amount.
A landowner decides to sell part of his land to a farmer. The farmer is keen on the sale but expresses concern about rights of way. In particular, she wants to ensure that the parcel she buys has access to a pathway that crosses over the landowner’s land. For the sake of certainty, the landowner wants to enter into a deed before the sale which specifies the rights of access for the parcel to the pathway. He asks his solicitor to prepare this document.
Is the solicitor likely to draft the deed the landowner has requested?
Yes, because the rights must be created by deed or they will take effect in equity only.
No, because there will not be a dominant and servient tenement in separate ownership.
Yes, because the right is capable of forming the subject matter of an easement.
No, because the landowner can rely on implied easements in equity.
No, because the right does not benefit the landowner’s property .
(B) The rights cannot be created before the sale as there will not be a dominant and servient tenement in separate ownership. An easement is a right which exists over a piece of land (the servient tenement) which benefits a different piece of land (the dominant tenement). Here, there are not yet two different pieces of land. A person cannot give himself an easement over his own land. The part of the land forming the farmer’s parcel must be sold before an easement can be created. (A) is incorrect because, as explained above, the landowner has asked the solicitor to draft a document creating an easement before part of the property is sold, which is not possible. The solicitor can draw up a deed of easement after the land has been sold and divided. If a deed is not used, the grant will be ineffective at law but may be enforceable in equity. (C) is incorrect because while the right is capable of forming the subject matter of an easement after the sale, an easement cannot be created when the landowner still owns the whole property. (D) is incorrect because the landowner and farmer are seeking certainty and reliance on implied rights that may be granted in limited circumstances will not provide this. (E) is incorrect because whether the right benefits the landowner’s property is irrelevant. One of the characteristics of an easement is that it must benefit the dominant tenement, which would be the farmer’s parcel after the sale. In any event, as explained above, an easement cannot be created before the land is divided.
A landowner sold a house which used a shared driveway. The landowner’s transfer to the buyer included the following covenant: “The transferee and his successors in title will contribute one-quarter of the cost of the upkeep of the shared driveway”. The original buyer sold the house four years ago to the current owner, who included an indemnity covenant in the transfer. The landowner now wants to require the current owner of the house to contribute to the cost of the shared driveway.
Is the landowner likely to be successful in enforcing the covenant against the current owner?
No, because there is no privity of contract between the landowner and the current owner.
Yes, because there is privity of estate between the landowner and the current owner.
Yes, because the current owner gave an indemnity covenant in the transfer from the original buyer.
Yes, because there is privity of estate between the landowner and the current owner.
No, because positive covenants are always unenforceable against successors in title.
C) The landowner is likely to be able to enforce the covenant against the current owner because the current owner gave an indemnity covenant in the transfer from the original buyer. A positive covenant is one that requires a positive act to comply. Generally, positive covenants bind only the original contracting parties. However, if the original covenantor obtains an indemnity covenant from the next buyer, liability under the covenant will continue. Here, the current buyer gave an indemnity covenant to the original buyer (the original covenantor). Thus, the landowner will be able to enforce the covenant against the current owner. (A) is incorrect because, as explained above, the current owner gave an indemnity covenant which makes her liable under the covenant despite the lack of privity of contract between the current owner and the landowner. (B) and (D) are incorrect because privity of estate is irrelevant here. Privity of estate describes the relationship between a landlord and a current tenant and is not relevant to the enforceability of positive covenants in the freehold context. (E) is incorrect because, as explained above, while positive covenants generally bind only the original contracting parties, it is possible to enforce a positive covenant against a successor in title under certain circumstances, such as through the indemnity covenant given here.
A painter and an art dealer have asked a solicitor to act for them in the sale of a painting. The parties have differing views on the painting’s value, and the solicitor has explained that she cannot act for both of them in this matter because there is a conflict of interest. The parties reply that they believe the solicitor will treat them both fairly in the negotiations and that they both consent to the solicitor acting.
Which of the following statements best describes whether the solicitor should act for both parties?
Regardless of the fact that the parties gave consent to the solicitor acting, there is still a conflict of interest and the solicitor should not act for both parties.
The solicitor may act for both parties because they have a substantially common interest and each party has consented to the solicitor acting. Should any points of conflict arise during the retainer, the solicitor will need to advise one of the parties to take independent legal advice.
Because the parties have a substantially common interest, the solicitor may act for both parties provided each party gives written consent to the solicitor acting.
Because the parties have a substantially common interest and both parties want the same outcome, there is no conflict of interest, and the solicitor is therefore permitted to act for both parties.
The solicitor should not act for both parties, but may act for one party and refer the other party to another member of the solicitor’s firm to act in the matter.
Regardless of the fact that the parties gave consent to the solicitor acting, there is still a conflict of interest and the solicitor should not act for both parties.
A solicitor accidentally emails a client care letter to the incorrect person (not the client). The client care letter contains information about the client and their matter. The solicitor immediately contacts the recipient and requests that they delete the email and do not use it. The recipient confirms they will do this.
Which of the following statements best describes the solicitor’s obligations?
The solicitor does not need to do anything because the mistake has been rectified.
The solicitor does not need to do anything because the client has not suffered any loss as a result of their mistake.
The solicitor should notify the client about what has happened and inform the firm’s compliance officer for legal practice (COLP).
The solicitor should report the matter to the firm’s compliance officer for legal practice (COLP), but does not need to notify the client about what has happened.
The solicitor should report the matter to the firm’s compliance officer for finance and administration (COFA), but does not need to notify the client about what has happened.
(C) A solicitor must be honest and open with clients if things go wrong. The solicitor should tell the client about the misdirected email because they may wish to take steps to protect themselves from any potential cyber crime issues, bearing in mind that their confidential information has inadvertently been sent to a third party. The solicitor should also tell the firm’s COLP about the issue so that they can determine whether or not the firm’s insurers need to be notified. (A) and (B) are incorrect because a breach of confidentiality has occurred and this needs to be reported to the firm’s COLP and the client. (D) is incorrect because the solicitor should also inform the client about what has happened. (E) is incorrect for the same reason, and because the matter should be reported to the firm’s COLP, not the COFA.