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SQE1 - Trick Questions > Mixed Set 1 [FLK2] > Flashcards

Mixed Set 1 [FLK2] Flashcards

1
Q

Trusts - Breach of trust by trustee (191)

(a) is the intention of the trustee relevant to their liability for breach?
(b) can a breach of trust occur by action or omission?
(c) does a breach automatically lead to liability?

A

(a) No (don’t account for MR)
(b) either way
act = when T acted outside their scope of powers
omission = when T failed to take adequate action to protect the trust asset
(c) no, T is only liable if the breach led to loss to the trust/ an unauthorized gain
B must prove that (i) T breached the trust + (ii) that breach led to the trust suffering a loss

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2
Q

Trusts - Breach of trust by trustee (192)

(a) when there is more than 1 T, is the T vicariously liable for their co-trustees?
(b) what kind of liability does T have?
(c) if one T acts unanimously and breaches trust, are the other T’s liable to B?

A

(a) No. But, they would have committed a BREACH by omission for neglecting their trust duties as they should have known what their co-trusties were up to (since T’s are required to act unanimously)
(b) joint and several
(c) no, only breaching T is liable as other T’s did not give consent

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3
Q

How should a T who is found to be in breach of trust compensate the trust for any loss suffered? (193)

A

From their personal funds

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4
Q

Can a T who is found to be in breach of trust claim indemnity from a fellow co-T? If yes, when? (193)

A

Yes
Where:
(a) Co-T was fraudulent
(b) Co-T was a solicitor-trustee and exercised controlling influence

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5
Q

Can a T who is found to be in breach of trust claim indemnity from a beneficiary? If yes, when? (194)

A

Yes
Where:
(a) B who is a T exclusively benefitted from the breach
(b) Where B instigated the breach/ consented to the breach in writing

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6
Q

Measure of damages for T (194)

(a) where there is a breach of trust? how to remedy?
(b) where there is a breach of fidic duty? how to remedy?

A

(a) compensation and T is personally liable for any loss and T must restore the fund to the position it was before the breach

(b) restitution (when T has made an unauthorized profit). T must account for any profits made.*
*Court may compound interest (ie principal sum + interest)

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7
Q

Is a breach of T’s fidic duty also a breach of trust? (195)

A

No

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8
Q

T’s breach of trust (195)

(a) how is it caused?
(b) what do you need to prove?
(c) who is liable?
(d) who can T obtain indemnity from?
(e) measure of damages?

A

(a) by an action or omission
(b) loss resulting from the breach
(c) T is liable for their own breach BUT liability is joint and several
(d)
- fraudulent co-T
- solicitor-trustee who exercised a controlling influence
- beneficiary-T who benefitted from the breach
- beneficiary who consented/ instigated the breach
(e) compensation for the loss

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9
Q

If a T is being sued for breach of trust, what are the defences available? (196)

A

(a) exemption clauses
Any ambiguity in the clause = contra proferentem rule
Fraudulent T cannot rely on this

(b) request court to release them wholly/ partly (S61 TA 1925)
The court will be less likely to use this for a pro T

(c) if B played a role, use that as a defence
If B was involved/ excused the breach (acquiescence)
For both, B must be suis juris + fully understand (no need to show that B benefitted)

(d) claim that an action is time barred due to LA 1980 (6 years from the date on which the right to action accrued)*
except if T fraud/ concealment/ mistake - time starts running from when B discovers it

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10
Q

If T breaches the trust and uses the limitation period defence, what are the limitations of this defence? (199)

A

(a) no limitation period is T is a party to a fraud
(b) no limitation period to recover trust property and its proceeds from T

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11
Q

What is the doctrine of latches? (200)

A

This is in relation to T’s breach of trust
It is an equitable defence raised by D against an equitable remedy claim (eg specific performance/ injunction)

D must show that C’s undue delay in asserting their rights would be unjust to D thus C is no longer entitled to the equitable remedy

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12
Q

What is acquiescence? (200)

A

This is in relation to T’s breach of trust
It is an equitable defence available to D against a B, if they can show:

(a) B excused the breach upon discovering it by delaying it to point that the doctrine of laches applies; or
(b) B waived their right to sue by confirming intention not to sue (B must be suis juris + have full knowledge)

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13
Q

(a) Fraud by false representation elements
(b) Can it be committed even if D is not successful?

A

(a) Occurs when an individual dishonestly makes a false representation, intending to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss.
(b) Yes, as the essence of the crime lies in the act of making the false representation itself, not in the success or completion of the transaction.

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14
Q

Land - Easements

(a) Can a R to light be an easement?
(b) What kind of R will it give the dom landowner?
(c) What does it prevent the serv landowner from doing?
(d) How can you create this easement through the Prescription Act 1832?

A

(a) Yes it can be created as an easement
(b) entitlement to receive SUFFICIENT light for comfortable use and enjoyment of his prop, taking into account current and future potential use
(c) obstructing the light (if the light falls below the level of sufficiency = nuisance)
(d) must be enjoyed for 20 years w/o interruption, w/o force, w/o secrecy, w/o permission (an interruption of 1+ years/ written consent/ agreement of the serv owner will prevent this right being acquired)

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15
Q

Property

Are seller’s responses (either oral or written) to pre-contract enquiries representations or warranties?

A

Representations.
If untrue, then the seller will commit a misrepresentation.
The seller is not obliged to answer the buyer’s pre-contract enquiries. Where the seller does answer pre-contract enquiries, the seller is under a duty not to misrepresent facts which induce the buyer to enter into the contract.

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16
Q

Under the Fraud Act 2006, what is the test for dishonesty? Objective or subjective?

A

Conduct must be objectively dishonest (so take into consideration the standards of ordinary people).

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17
Q

What is hearsay?

A

(a) any statement (oral or written) not made in court
(b) it is presented to substantiate the truth of its content

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18
Q

Admitting hearsay evidence (140)

(a) If D wants to admit evidence, what is the standard of proof?
(b) Who has the burden to prove admissibility?
(c) When does P have to prove that it is admissible? What is the standard for P?

A

(a) must establish reliability on the balance of probabilities
(b) whoever is seeking to rely on the evidence
(note: no one has to prove inadmissibility)
(c) Only if D says it is inadmissible. P must prove it is admissible beyond reasonable doubt.

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19
Q

Hearsay (135)

  1. Reasons for witness unavailability in hearsay? (statute)
  2. What is res gestae? (common law)
  3. When is hearsay evidence admitted?
A
  1. dead/ unfit/ out of the UK/ cant be found/ fear
  2. statement made as a result of a close and intimate connection to the event and usually in emotional state (can be admitted)
    • res gestae (common law)
    • unavailability as per statute (1 above)
    • business document
    • if all parties agree
    • in the interests of justice
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20
Q

Trusts

How can B force the retirement of appointed trustees? S19 TOLATA

A

The following prerequisites must be met:
(1) no appointor has been named in the trust instrument;
(2) the Bs are all of full age and capacity;
(3) the Bs are together absolutely entitled to the trust property; and
(4) at least two trustees or a trust corporation will remain.

Then B’s must unanimously agree and give written direction to T to retire by giving notice to all T’s

At least 2 T’s + replacement trustee should remain, else (5) all continuing T’s should consent to the retirement

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21
Q

How can you appoint a replacement trustee where an existing trustee dies and the trust is silent as to the power of appointment?

A

S 36(1) gives remaining non-settlor trustees the power to appoint new T in writing

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22
Q

Who can appoint a NEW trustee? (170)

A

Settlor or testator

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22
Q

How many trustees do you need?

A

Land = min 2 individual Ts/ 1 sole trust corp and max 4 individuals
Other = min 1 and no max

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23
Q

Who can appoint additional/ replacement trustees? (171)

A
  • person nominated for the purpose of appointing (ie trust doc)
  • surviving Ts
  • PR of of T
  • court
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24
Q

Under Town and Country Planning Act 1990, when do you need Planning Permission? (67)

A

You need permission for anything that constitutes as “development” which is:

  • building engineering or mining
  • material change in use of land between classes*

*if it is sui generis (eg bar) it always needs express permission

25
Q

Under Town and Country Planning Act 1990, when do you NOT need Planning Permission? (67)

A

(a) internal works - maintenance, alteration, and internal improvement
(b) incidental use - use of buildings/ land surrounding the house (eg a shed)
(c) non material change of use - change of use within the same class

26
Q

Under Town and Country Planning Act 1990, what are the classes and their uses? (68)

A
  1. B - General industrial (B2) and storage and distribution (B8)
  2. C - Residential use (house/ hotel)
  3. E - Commercial (including hot food for consumption but excluding hot food for sale)
  4. F - School/ worship/ community
27
Q

(a) Under Town and Country Planning Act 1990, what is “permitted development”? (69)

(b) What are the 3 types of permitted development?

(c) What is Article 4?

A

(a) where planning consent is required but automatically granted

(b)
1. small extension/ improvements around the house (porch/ extension/ conservatory)
2. minor operations (painting exterior/ erecting a fence)
3. changes between use class

(c) revokes “permitted development” and now needs express planning permission

28
Q

Under Town and Country Planning Act 1990, you need Planning Permission because you are carrying out “development” under Building Operations. When do you submit a Full Plans Application or a Building Notice Application?

A

First, an application for Building Regulations Approval should be made to the Local Authority. The application is either a Full Plans Application or Building Notice Application.

Full Plans Application - for complex projects (must provide 2 copies of construction plans)

Building Notice Application - cheaper, quicker and for small project building works

29
Q

What is an “easement in gross”?

A

It’s a personal right granted to an individual/ entity to use another’s property for a specific purpose.

An easement CANNOT be created for an easement in gross. This is because the person does not own the land that would benefit from the right granted.

30
Q

What are the 4 elements you need for a valid easement?
Re Ellenborough

A
  1. Dom and serv land
  2. Easement must benefit the dom land
  3. Dom and serv land to be owned by different people
  4. Easement can be granted as an easement*

*R to open space for recreational use is OK. This is because it enhances normal enjoyment on dom land.

An easement cannot grant dom land user exclusive possession of land!

Note: touch and concern rule is for covenants, not easements!

31
Q

Right to use land

  1. Is permission to use land an express easement?
  2. What does “permission” w/o a deed equate to?
  3. What are the types of legal easements?
A
  1. No. For it to be an express easement, it should be created as a deed and registered at the LR and then it will create a legal interest.
  2. License (no legal interest)
  3. a. Implied (grant: necessity/ intention/ W&B/S.62 + reservation: necessity/ intention)
    b. Express (deed and LR)
    c. Prescriptive (Act - 20/ 40 years)
32
Q

(a) What is an implied easement under S.62?
(b) What does it mean?
(c) What conditions need to be met for S.62 to take effect?

A

(a) It is an Appurtenant Benefit easement
(b) It means that all existing benefits including easements will pass automatically on conveyance (!!!) w/o express mention of it, subject to meeting certain conditions.
(c) The conditions to be met are:
1. R must have been exercised over land retained by grantor
2. R must have already been enjoyed at the time of conveyance

33
Q

What do you need to establish an implied easement by necessity?

A

That it is necessary for the use of the land

Note: no easement will be allowed if there is an alternative R of way, no matter how inconvenient it may be.

Necessity will give you a legal basis to claim for an easement

34
Q

Common law or equity? When is it used?

(a) Following
(b) Tracing

A

(a) Common law - when it is straightforward. Following the property concerned from one hand to another, identification of the property and its subsequent return.
(b) Equity - when you cannot follow because it has been mixed with other property

35
Q

Trusts (209)

(a) who can use tracing as a remedy?
(b) who is a tracing claim available against?

A

(a) B who has lost trust assets due to fraud, misappropriation or mistake
(b) T, constructive T, or innocent volunteer

36
Q

Tracing rules (217)

What do you do if it is unmixed funds and:
1. asset is still available
2. asset has been sold
3. proceeds used to buy trust prop

A
  1. claim the asset
  2. claim the proceeds
  3. claim the property
37
Q

Tracing rules (217)

What do you do if it is MIXED funds and:

  1. prop bought with T’s money + trust money
  2. prop bought with money from 2 different trustees
  3. prop bought with T’s money + innocent volunteer money
A
  1. B has first claim over the prop
  2. both trusts share the prop rateably
  3. trust + innocent volunteer share the property rateably
38
Q

Tracing rules (217)

What do you do if it is for a bank account and:

  1. T money mixed with trust money
  2. Money from 2 different trusts
  3. Money from trust fund and innocent volunteer
A
  1. T presumed to have spent his money first
  2. First in, first out rule
  3. First in, first out rule
39
Q

Can you trace if money has been dissipated?

A

No, R to trace is lost
B would have to start a personal action against T to compensate for the loss

40
Q

Elements of aggravated criminal damage

A

AR: destroy or damage prop

MR:
(i) intend/ reckless as to the damage/ destruction
(ii) to intend/be reckless that the damage/ destruction will endanger the life of another

This is a subjective awareness of risk (ie what D foresaw)

41
Q

When the prop is co-owed as JT (maybe also equitably owned as TIC) and 1 JT wants to sever and sell the land then:

(a) what factors will the court look into?
(b) will the court allow it?

A

(a) The court will look into S 15 TOLATA
(i) intention of the parties
(ii) purpose of the prop
(iii) welfare of any minors
(iv) interest of any secured creditors

(b) if (i) and (ii) is clear, then the purpose of the trust has NOT failed and court will NOT order the sale.

42
Q

Offence classification (61)

  1. murder and manslaughter
  2. assault and battery
  3. S 47
  4. S 20
A
  1. indictable only - cc
  2. summary only - mag c
  3. assault occasioning ABH - either way - mag c/ cc
  4. malicious wounding/ INFLICTING gbh - either way - mag c/ cc
43
Q

Offence classification (61)

  1. S 18
  2. theft (S 1)
  3. robbery (S 8)
  4. burglary (S 9)
A
  1. malicious wounding/ CAUSING gbh - indictable - cc
  2. either way (GBP 200) - mag c/ cc
  3. indictable - cc
  4. either way - mag c/ cc
    will be CC if the UO is theft, assault, crim damage
    will be CC if its a dwelling
    will be CC if its 3rd conviction
44
Q

Offence classification (61)

  1. Aggravated burglary
  2. fraud
  3. simple criminal damage/ arson
  4. agg. criminal damage/ agg. arson
A
  1. indictable - cc
  2. either way - mag c/ cc
  3. either way (under GBP 5,000) - mag c/ cc
  4. indictable - cc
45
Q

Are executors entitled to sell estate property (without the consent of B) that is not specifically bequeathed? Will they have any liability?

A

Yes
They will not have any liability to B

46
Q
  1. What is a charitable purpose trust?
  2. Does it need an identifiable B?
  3. What are 2 things a valid charitable trust needs?
  4. What happens to a charitable trust that fails?
A
  1. It is an express purpose trust
  2. No cus they are public so all sections of the public who benefit from the purpose have an interest
  3. (1) charitable purpose (2) public benefit
  4. gift will return on resulting trust to the estate, unless it can be saved by cy pres
47
Q

What are the exceptions to charitable purpose trusts?

A

trusts for the maintenance of:
- specific animals
- monuments
- tombs
- certain religious purposes

48
Q

3 certainties (18)

  1. what happens if there is no certainty of intention?
  2. what happens if there is intention but no certainty of subject matter?
  3. what happens if there is intention and subject matter but no objects?
A
  1. fails - goes to T as an outright gift
  2. fails - goes back to settlor on resulting trust
  3. fails - goes back to settlor on resulting trust
49
Q

Re intention in trust

  1. expressing a wish - is that certainty of intention? (5)
  2. declaration of trust - is that certainty of intention? (7)
  3. can conduct alone show intention to create a trust? (9)
A
  1. no, likely to be a gift
  2. no
  3. yes
50
Q

Trust - re subject matter

  1. what are the 2 things you need? (13)
  2. is the word “bulk” certain? (10)
  3. what about “reasonable income”? (11)
A
  1. (i) certainty of property (tangible which must be clearly identified & intangible which does not need to be segregated eg shares) & (ii) certainty of BI
  2. no
  3. yes
51
Q

Trusts - certainty of objects

  1. what do you need for this? (13)
  2. what does the test of ascertianity depend on? (13)
  3. what do you need for fixed trusts? (15)
  4. what do you need for disc. trusts? (15)
A
  1. class of B must be ascertained
  2. if they are fixed trust (ie B is entitled to a specific share) or if it is a disc trust (ie no automatic right to payment)
  3. class ascertainability - complete list of Bs
  4. individual ascertainability - are they a part of the class? no they no need for a complete list
52
Q

Trusts

  1. what are the issues when ascertaining objects?
  2. what is conceptual uncertainty and does it make a trust void?
  3. what is evidential uncertainty and does it make a trust void?
  4. whats admin unworkability?
  5. whats gift to individuals w a particular purpose?
A
  1. conceptual uncertainty, evidential uncertainty, admin unworkability, gifts to a description
  2. unclear words eg friends, relatives, family etc. it makes it void
  3. you cant tell who fits the description of B due to the lack of evidence. IT DOES NOT MAKE IT VOID. it can be remedies w extrinsic evidence
  4. description used is too wide to form a class eg “for the habitants of X”
  5. gift will be valid as long as it meeting the criteria for 1 person
53
Q

sentencing discount (190)

  1. at first stage
  2. after first stage
  3. during course of trial
A
  1. 1/3
  2. 1/4
  3. 1/10
54
Q
  1. Once D is convicted in the Mag Court - how can they appeal? (207)
  2. In CC appeal, what is the timeline for the appeal notice?
  3. In HC appeal, what is the timeline for the appeal notice?
A
  1. (a) appeal to CC - against conviction (retrial) or sentence (rehearing)
    (b) appeal to HC - by way of case stated ie wrong in law (P can also ask for this) - this is confined to legal arguments only
  2. within 15 business days from sentence (not conviction)
  3. within 21 days from the decision made in Mag Court
55
Q

Powers of CC when receiving an appeal from Mag Court? What kind of sentencing powers?

A

CC can
- confirm (find D guilty, same as mag court)
- reverse (acquit D) or
- vary their decision

CC can impose any sentence that would be available to mag court

56
Q

Powers of HC when receiving an appeal from Mag Court?

A

CC can
- confirm (find D guilty, same as mag court)
- reverse (acquit D)
- vary their decision
- REMIT (return matter to mag court)

57
Q
  1. when is an appeal from CC to COA heard?
  2. grounds of appeal?
  3. timelimit to appeal?
A
  1. cases tried on indictment
  2. against conviction (ie unsafe conviction) or against sentence (wrong in law/ excessive)
  3. 28 days from conviction/ sentence
58
Q

Who should the T serve a S 26 notice on?

A

a competent landlord

ie the immediate landlord provided they have over 14 months left to run on their lease
if not, the freeholder

59
Q

Types of tenancy in a lease (169)

  1. fixed term
  2. periodic
  3. at will
  4. license
  5. sufferance
A
  1. for X period of time
  2. renews every X period. Need 1 period notice to terminate.
  3. created by agreement with landlord consent - can be terminated by either party at any time, no long term security
  4. not a lease, only permission to stay
  5. where T is in possession after lease expiry and LL has not confirmed it (all original terms apply and T is not a trespasser)
60
Q
  1. what kind of covenants will bind original covenantor and covenantee?
  2. does it have to be on protected by an entry on the register to be enforceable?
  3. does it have to touch and concern the land?
A
  1. both positive and restrictive due to privity of contract
  2. no
  3. No, because they are original parties to a deed

SQE1 - Trick Questions (17 decks)

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