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SQE1 - Trick Questions > Mixed Set 5 [FLK2] > Flashcards

Mixed Set 5 [FLK2] Flashcards

1
Q

What is grant of representation?

When do you use grant of probate? What about letters of administration?

A

Incl. Grant of probate/ Letter of administration

Will = grant of probate

No will = letters of administration

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2
Q

If you are on bail for offence 1, and you commit another offence (no.2), will you will have a presumed right of bail for offence no.2?

A

No, as you are already on bail at the time of offence 2….unless there is no significant risk of you committing an offence while on bail

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3
Q

Aggravated arson elements (arson w the intent to endanger life)

A

AR: destroy or damage prop
MR: intention or recklessness as to whether life of another would be endangered

+ use of fire

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4
Q

MR for burglary

A

2 MR elements to be proved:

  1. intention/ recklessness as to the trespass
  2. intention to commit the ulterior offence (theft/ GBH/ unlawful damage) at the time of entry

AR:

  1. enter the building or part of a building, as trespasser
  2. attempt to commit ulterior offence
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5
Q

When do you issue a Turnbull warning?

A

Turnbull guidelines in relation to mistaken eye-witness identification. It is applicable where the case against the accused depends wholly or substantially on the identification of the accused which the defence alleges to have been mistaken. Turnbull does not apply to inanimate objects such as motor vehicles.

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6
Q

Easement by prescription, Prescription Act 1832. What are the rules of permission?

  1. 20 yr limitation
  2. 40 yr limitation
A
  1. no permission of any type should be given by the owner of the land (neither verbal nor written)
  2. only express written permission should not be given (ie if verbal permission was given, then you can still claim an easement under this act as long as there is 40 yrs of continuous use). The right claimed will be deemed absolute.
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7
Q

LTA commercial leases

Does the act + AGA apply to both legal and equitable leases?

A

Yes, the features of privity of contract and privity of estate under LTA apply to both legal and equitable leases

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8
Q

Trusts - gifts to unincorporated association

What are the 3 types of gift and when will it fail?

A

Such gifts usually fail as the don’t have B’s, unless:
- gift to the members (gift must be given to the members as JTs)
- contract holding gift (should have wording like “to be applied in accordance w the rules of the club”)
- association is a quasi corporate entity (only works if the association is for charitable purposes)

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9
Q

Breach of Building Regulations

What is the limitation period on which local authority can bring action?

When is approval usually required?

A

Local authority must bring prosecution within 6m of the breach being discovered + action should be taken within 2 years of the completion of the building works that are in breach

For structural alterations made to the property - installation of replacement windows, replacement boilers, electrical works, installation of wood or coal burning ovens and fires etc.

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10
Q

Building Regulations vs Planning Permission

A

Building Regulations specify the minimum building standards that must be followed and the types of building materials that must be used in the construction of buildings. This consent is distinct from planning consent and will be required for building works even where Planning Permission is not required.
Note - Local Authority can issue proceedings (within 2 years) for a breach of Building Regs with a penalty imposed by the court. They can also issue an injunction at any time following the breach. Or, issue an Enforcement Notice in 12m requiring you to change/ remove/ demolish the changes.

Planning Permission controls the way towns, cities and countryside develop. This includes the use of land and buildings, the appearance of buildings, landscaping considerations, highway access and the impact that the development will have on the general environment. Planning Permission is needed for most types of new development or changes to the use of land.

The time limits to bring action for breach of planning permission are different than those of Building Regulations.

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11
Q

How do you surrender a lease? How do you surrender a parol lease?

A

Both can be surrendered orally (by operation of law S52 LPA) or by deed.

For operation by law (orally) - surrender has to be unequivocal (eg agreement between LL and T + LL accepting T’s keys + T vacating the premises).

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12
Q

What are the 3 requirements for recipient liability?

A
  • disposal of C’s assets in breach of fidic duty
  • receipt of those assets by D
  • D’s constructive knowledge that assets are attributable to breach of fidic duty
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13
Q

What are the 3 requirements for a person applying under a Grant of Rep?

A

The person must be:
1. fit (so cannot be mentally ill or under 18)
2. able (so cannot be travelling the world)
3. willing to act

If land or minor child = min 2 admin/exec

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14
Q

For trusts created from April 2010, the perpetuity period states that “property must vest within 125 years”. What does this mean in relation to the power of maintenance if the vesting period is set at 25?

A

It means income can be accumulated within the trust for the whole trust period (until 25). However, T MAY (at their discretion) chose to use their statutory powers are distribute the accumulated income if they wish to do so.

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15
Q

What is constructive manslaughter

A

unlawful act manslaughter

ie no intention to kill (just a criminal act) but death occurs

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16
Q

Prop
If the seller is a company - at what point do you do a CH search?

A

Right before the exchange of contracts + on the morning of completion to ensure no new charges have been registered.

CH does not have a priority period so new charges can be added at any point.

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17
Q

M dies leaving a will and bequeathing property to his spouse. In 2 weeks, the spouse dies and in their will bequeaths property to her brother.

Will M’s property pass according to intestacy? Will the 28-day rule apply?

A

M’s property will pass to the spouse’s brother as M had a will.

Thus, the 28-day rule in intestacy will not apply.

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18
Q

If you buy a business prop as JT but contribute unequal shares towards the purchase price and signed a declaration of trust saying “prop held as JT”. How are you all holding it legally and equitably?

A

As JT both legally and equitably due to the declaration of trust

Remb, equity follows the law!

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19
Q

2 exceptions to when property legally held as JTs will be equitably held as TIC?

A

Legally as JT but equitably as TIC where:

  • unequal contribution to the purchase price
  • purchased for a business purpose
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20
Q

MR for criminal damage

A

awareness of risk of damage + unreasonable decision to proceed

*no need to have foresight to specific extensive damage

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21
Q

Restrictive covenants registered on the register - are they legal or equitable? What is the effect on current owners and successors?

A

Restrictive cov (ie not to do something)

Always equitable, even if registered! They cannot be a legal interest.

In law for restrictive cov - they only bind the original owner due to privity of contract.

In law, they will never bind successors in law. But could bind successors in equity, if registered as a restrictive cov.

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22
Q

What are the steps for purchase unreg land?

A
  • complete transaction*
  • notify HMRC and pay SDLT (both of this should be done within 14 days of completion/ substantial completion)
  • apply for first reg
  • register new owner with LR

*title passes on completion
**register transaction with HMLR within 2 months from completion, else transfer will be void

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23
Q

Force used by a householder in self-defence

A

if the force used was NOT grossly disproportionate, it can be deemed considered reasonable

24
Q

If the executor has completed the administration of the estate and wants to discharge his responsibilities but there is a B who is a minor, how can the executor proceed?

A

A minor cannot discharge the executor as minor lacks capacity. So:

  1. if the gift vests immediately - the executor can appoint other trustees to sign accounts
  2. if the gift is contingent - the PR (eg executor) must hold the gift for B until B turns 18

Executor cannot pay B’s share to the court - this is only if B refuses to discharge (other than due to age of B)

Executor cannot ask to appoint a deputy - this is only if B has a mental disability

Executor cannot apply for a benjamin order - this is only if B is missing

25
Q

What are the 4 things CPS should give D before the first hearing?

A

charge sheet
custody record
statements of case facts/ summary of evidence
D’s previous convictions (if any)

No tapes of the interview or witness statements!!!

26
Q

In unreg land, how to you take a legal title of a prop free from any beneficial interest?

A

In unreg land, purchaser’s rights are subject to the doctrine of notice.

So any purchaser of value (BFP) will take legal title free of beneficial interest, AS LONG AS BFP did not have notice* of the beneficial interest.

Ie purchase monies can be paid to 1 seller too!

Eg of constructive notice: physical inspection of the land/ checking title deeds for 15 yrs

27
Q

What is the lawful excuse defence for simple criminal damage?

Does that defence extend to agg. criminal damage?

A

A defence where D believes they had the consent of the property owner.
This defence also allows for the belief in hypothetical consent based on the circumstances directly linked to the damage.

No.

28
Q

When can a custody officer take personal effects?

A

Only if there are reasonable grounds to harm/ cause damage/ tamper with evidence/ help in escape.

VV IMP - There should be subjective belief* that this is necessary.
*belief need not be reasonable.

Reasonable and proportionate force should be used for removal of clothes and personal effects.

29
Q

Terminating trust early under S v V

There is LT + disc B who is also contingent B

Whose permission do you need to terminate the trust?

A

LT + all B’s whose interest has vested

B must be over 18 + capacity + unanimously approve

Does not matter if B is disc, as long as their contingency is vested!

30
Q

TP1

A

Registered title: part transfer

31
Q

TR1

A

Registered title: whole transfer

32
Q

AP1
(used with TP1/ TR1)

A

Change to register

33
Q

FR1

A

First reg of unreg land

34
Q

AS1

AS2

A

Registered title: used by PR’s to assent to the whole title

Personal representative(s) to assent a charge (mortgage).

35
Q

CH1

A

Registered title: to create legal charge (mortgage)

36
Q

OS1
OS2
OS3

A

Form OS1: official search with priority by a purchaser against the WHOLE of a registered title or pending first registration application.

Form OS2: official search with priority by a purchaser against PART of the land in a registered title or pending first registration application.

Form OS3: for official search without priority of the land in a registered title.

37
Q

SIM

A

Index map: application for an official search (SIM)
To find out if a specific property or area of land is registered and, if so, the title numbers of that land.

38
Q

For the rule in Wheeldon to apply, does the claim for an implied easement have to be visible?

A

Yes
The right must be “continuous and apparent”
ie in regular use + apparent at the time of transfer
So eg: underground pipes are n/a under W v B

Note: the following do not affect W v B
- transfer for value (can be sale, gift, lease etc)
- can be reg or unreg estate

39
Q

PRs power of insurance

A

should be against any risks and in such sums as they see fit

the insurance premium will be out of the income/ capital funds of the deceased’s estate

40
Q

Is there a presumption of bail when the charge is for murder?

How do you still make a bail application?

A

No

Application can be made only in the Crown Court (not Mag Court) within 48 hours of D appearing in the Mag Court

41
Q

Can a restrictive cov arise through prescription or implication and bind successors?

A

No
Must be expressly created

R by prescription (ie long use) applies to easements, not cov

Further, to bind successors - the cov must be registered

42
Q

If you only receive client money from LAA, do you need to prepare an accountant’s report?

A

no

43
Q

Result crime vs conduct crime

A

Result = a required result must happen for the offence to be committed eg murder

Conduct = the conduct used is the offence, and there is no required result element eg theft

44
Q

Defence calling the following witnesses:

  1. defendant
  2. defendant’s spouse
A
  1. competent but not compellable
  2. competent AND compellable
45
Q

Breach of planning control

  1. can you appeal against an enforcement notice?
  2. can you appeal against a stop order?
A
  1. yes, the appeal must be brought before the notice becomes effective (at least 28 days after the enforcement notice is served)
  2. no (you can only challenge by application to HC for judicial review)
46
Q

If B is a witness to a will, will the lose their benefit under the will?

A

Yes
Further, their spouse cannot be a witness either

There needs to be a 3rd witness for B to get their entitlement if B is a witness

47
Q

Re Rose

A

As long as you do everything in your power to complete the trust, then even if it is not completely constituted due to 3P reasons, it will be perfected and the gift will pass

48
Q

Prop
When you are a sub-t and want to renew your lease but there is a chain of LLs - which notice do you serve to identify who is the competent LL and to who do you serve this notice?

A

To identify competent LL - S40

Serve on YOUR LL - they should respond in 1m with details of his LL + terms of headlease
You can also notice serve on each superior LL in the chain

49
Q

If you are appealing from Crown Court to COA - what kind of sentence can COA impose?

A

Any sentence available to Crown Court, but not more harsher that what Crown Court originally sentenced

50
Q

Claim by LL for T’s unpaid rent - limitation period

A

Recovery for rent must be within 6 years from when the rent became due (no matter if by contract/ deed)

If you are trying to recover rent as a “debt” and your lease is as a contract - then 6 years. However, if your “debt” recovery is for a lease made by deed - then 12 years

51
Q

Under the Criminal Justice Act 2003, evidence admitted under particular gateways can be excluded by Section 101(3) (ie the admission of such evidence would have such an adverse effect on the fairness of the proceedings)

Which gateways are these?

A

Gateway (d) - Evidence relevant to an important matter in issue between the defendant and the prosecution

Gateway (c) - Evidence of the defendant’s bad character where it is important explanatory evidence

Gateway (e) - Evidence of the defendant’s bad character to correct a false impression

Gateway (f) - Evidence of the defendant’s bad character where the defendant has made an attack on another person’s character

52
Q

Wills

  1. what is the presumption of destruction
  2. how can it be rebutted
A
  1. if will cannot be found at testators death it is presumed to be destroyed with the intention of revoking the will
  2. by evidence to the contrary eg:
    - copy/ draft of the will
    - clear oral evidence from someone about testator’s intention to adhere to the will
    - evidence showing destruction by accident or by 3P
53
Q

Can you breach your bail conditions if the C gives you permission?
Eg your bail condition says you should not go to the office but C allows you to go to retrieve your personal items?

A

No

54
Q

Estate contract

A

An estate contract is any contract which creates a legal estate in land or any option to purchase a legal estate.

It includes:
- a contract to convey the legal estate in land (this will give the buyer an equitable interest in the house, before completion of the sale, at which point the buyer will become the legal owner of the property as well)
- a contract to create a lease (an equitable lease)
- an option to take or to renew a lease
- an option to purchase the fee simple
- and a right of pre-emption or any other like right.

55
Q

What do the following tell you:

SIM

Title deeds

Title plan

A

SIM - if land is reg + ownership details

Title deeds - chain of ownership for unreg land

Title plan - physical extent of property with reg title

SQE1 - Trick Questions (17 decks)

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