Nature of land Flashcards
What is land?
The land itself + tangible things on it + intangible rights
Is airspace land?
Only the height necessary for use
Lower airspace: are overhangs (eg. crane hanging 50ft above premises; extractor fan protruding into garden by 750mm) trespassing?
Yes
Is treasure ‘land’?
No - it belongs to the Crown (Treasure Act 1996)
Who do objects found within/attached to land belong to?
The landowner, even if they are unaware of its existence
Who do objects found unattached on land belong to?
The finder - unless the landowner can show:
(a) They have exercised sufficient control over the item
(b) An intention to exercise control
Are mines or minerals under the ground included in the ‘land’ of a property?
Yes - a conveyance of land carries with it everything beneath the surface of it
Are fixtures land?
Yes (s62 LPA 1925)
Are chattels land?
No
What are the 2 tests for deciding if something is a fixture? Which test carries greater weight?
The degree of annexation test + The purpose of annexation test
The purpose test carries greater weight & will rebut any presumption created as a result of the first test
What is the degree of annexation test?
The more firmly an object is fixed to the ground/building, the more likely it is to be a fixture (eg. a swimming pool, lifts, AC - but not a moveable greenhouse)
What is the purpose of annexation test?
WHY is the thing fixed to the land? To enjoy for itself or for the enhancement of the land as a whole?
(eg. pre-fab bungalow = fixture because was intended to make it part of the land; picture on wall = chattel even though fixed to land (fixed for greater enjoyment of the painting not to enhance the land as a whole)
Why does it matter whether something is a fixture or a chattel?
Because fixtures are part of the land so ownership of them can only be transferred by conveyance of the land (whereas chattels remain as personal property & can be taken by a seller)
How do you identify whether a right is legal / equitable / statutory?
- Identify the interest
- Is the interest capable of being legal or is equitable by nature?
- Have the correct formalities been used?
- Is the interest capable of being legal but there is no deed? (can equity intervene)
- Is it legal, equitable or statutory
What are the legal rights in land?
s1(1) LPA: Legal ESTATES
- Freehold
- Leasehold
s1(2) LPA: Legal INTERESTS
- Mortgages
- Easements for duration equivalent to a legal estate (ie. forever / set period of time)
- Rentcharges
- Other charges
- Rights of entry
What are the legal estates in land?
Freehold & leasehold (s1(1) LPA 1925)
What are the legal interests in land?
Mortgages
Easements for duration equivalent to a legal estate (ie. forever/ set period of time)
Rights of entry
+ Rentcharges, other charges
(s1(2) LPA 1925)
What are the formalities for granting & transferring LEGAL estates & interests?
- Exchange of contracts - must comply with s2 LP(MP)A 1989
- In writing
- Contain all expressly agreed terms
- Signed by both parties
(Exceptions: contracts granting lease of term not exceeding 3 years + auctions + creation of resulting, implied or constructive trusts)
- Must be transferred by a DEED complying with s1 LP(MP)A formalities
- Clear on face of document that it is intended to be a deed
- Signed & witnessed by grantor
- Delivered (ie. dated) - REGISTRATION
- If re unregistered land: all title deeds go up for registration
(if don’t register: legal title reverts to seller after 2 months)
- If re registered land: send transfer deed to Land Reg
(if don’t register: legal title not acquired until registration)
Formalities for grant & transfer of legal estates & interest
What formalities must the contract comply with?
Contract must comply with s2 LP(MP)A
- Must be IN WRITING
- Contain ALL EXPRESSLY AGREED TERMS
- SIGNED by BOTH parties
(Exceptions: leases not exceeding 3 years + auctions + creation of resulting, implied or constructive trusts)
Formalities for grant & transfer of LEGAL estates & interests
What are the requirements for a valid deed?
s1 LP(MP)A 1989
i. CLEAR ON FACE of the document that it is intended to be a deed (ie. called ‘deed’)
ii. Validly executed by grantor: SIGNED & WITNESSED
iii. Delivered (ie. DATED)
Formalities for grant & transfer of LEGAL estates & interests
What are the registration requirements when granting & transferring legal estates and interests?
If the land is UNREGISTERED: all title deeds go up for registration
(If fail to do so, legal title reverts to seller after 2 months)
If land is REGISTERED: send transfer deeds to land registry
(Legal title is not acquired UNTIL registration)
Formalities for grant & transfer of legal estates & interests
What are the consequences of the failure to use a deed / non-registration?
If the document complies with s2 LP(MP)A, the estate will be EQUITABLE
(1. In writing + 2. All expressly agreed terms + 3. Signed by both parties)
Which contracts for the grant and transfer of legal estates & interests do NOT have to comply with s2 LP(MP)A?
Contracts to grant lease of a term not exceeding 3 years
Auctions
Creation of resulting, implied or constructive trusts
What are the 3 ways an equitable interest in land can arise?
1) Inherently equitable interests (s1(3) LPA 1925)
- Restrictive covenants
- Easements granted for an uncertain term
- Beneficial interest behind a trust
- Estate contracts
2) Failed legal interests (eg. no deed, not registered)
- Will be equitable if comply with s2 LP(MP)A: in writing + all express terms + signed by both parties
3) Grantor has equitable estate only
Under s1(3) LPA 1925, what are equitable interests in land?
‘All other estates & interests take effect as equitable interests’ - eg.
- Restrictive covenants
- Easements granted for an uncertain term
- Beneficial interest behind a trust
- Estate contracts
What are the formalities for the CREATION of an equitable interest in land?
s53(1)(a) LPA:
–> In writing; and
–> Signed by the person creating the interest
What are the formalities for the TRANSFER of an equitable interest in land?
If contracting to transfer an equitable interest, there must be a valid contract (s2 LP(MP)A) & specific performance must be available
A valid contract is in writing + contains all expressly agreed terms + signed by both parties
What is the difference between a proprietary right in land and a personal right in land?
A proprietary right is one enforceable against the property itself (remedies can include recovery of possession/use as well as damages, compensation)
A personal right is enforceable against the person who granted the right in the first place (might be entitled to damages, but can’t recover possession/use of the land)
