Nature of land

Question 1

What is land?

Answer 1

The land itself + tangible things on it + intangible rights

Question 2

Is airspace land?

Answer 2

Only the height necessary for use

Question 3

Lower airspace: are overhangs (eg. crane hanging 50ft above premises; extractor fan protruding into garden by 750mm) trespassing?

Answer 3

Yes

Question 4

Is treasure ‘land’?

Answer 4

No - it belongs to the Crown (Treasure Act 1996)

Question 5

Who do objects found within/attached to land belong to?

Answer 5

The landowner, even if they are unaware of its existence

Question 6

Who do objects found unattached on land belong to?

Answer 6

The finder - unless the landowner can show:
(a) They have exercised sufficient control over the item
(b) An intention to exercise control

Question 7

Are mines or minerals under the ground included in the ‘land’ of a property?

Answer 7

Yes - a conveyance of land carries with it everything beneath the surface of it

Question 8

Are fixtures land?

Answer 8

Yes (s62 LPA 1925)

Question 9

Are chattels land?

Answer 9

No

Question 10

What are the 2 tests for deciding if something is a fixture? Which test carries greater weight?

Answer 10

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

Question 11

What is the degree of annexation test?

Answer 11

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)

Question 12

What is the purpose of annexation test?

Answer 12

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)

Question 13

Why does it matter whether something is a fixture or a chattel?

Answer 13

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)

Question 14

How do you identify whether a right is legal / equitable / statutory?

Answer 14

1. Identify the interest
2. Is the interest capable of being legal or is equitable by nature?
3. Have the correct formalities been used?
4. Is the interest capable of being legal but there is no deed? (can equity intervene)
5. Is it legal, equitable or statutory

Question 15

What are the legal rights in land?

Answer 15

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

Question 16

What are the legal estates in land?

Answer 16

Freehold & leasehold (s1(1) LPA 1925)

Question 17

What are the legal interests in land?

Answer 17

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)

Question 18

What are the formalities for granting & transferring LEGAL estates & interests?

Answer 18

1. 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)

2. 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)
3. 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)

Question 19

Formalities for grant & transfer of legal estates & interest

What formalities must the contract comply with?

Answer 19

Contract must comply with s2 LP(MP)A

1. Must be IN WRITING
2. Contain ALL EXPRESSLY AGREED TERMS
3. SIGNED by BOTH parties

(Exceptions: leases not exceeding 3 years + auctions + creation of resulting, implied or constructive trusts)

Question 20

Formalities for grant & transfer of LEGAL estates & interests

What are the requirements for a valid deed?

Answer 20

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)

Question 21

Formalities for grant & transfer of LEGAL estates & interests

What are the registration requirements when granting & transferring legal estates and interests?

Answer 21

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)

Question 22

Formalities for grant & transfer of legal estates & interests

What are the consequences of the failure to use a deed / non-registration?

Answer 22

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)

Question 23

Which contracts for the grant and transfer of legal estates & interests do NOT have to comply with s2 LP(MP)A?

Answer 23

Contracts to grant lease of a term not exceeding 3 years

Auctions

Creation of resulting, implied or constructive trusts

Question 24

What are the 3 ways an equitable interest in land can arise?

Answer 24

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

Question 25

Under s1(3) LPA 1925, what are equitable interests in land?

Answer 25

‘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

Question 26

What are the formalities for the CREATION of an equitable interest in land?

Answer 26

s53(1)(a) LPA:
–> In writing; and
–> Signed by the person creating the interest

Question 27

What are the formalities for the TRANSFER of an equitable interest in land?

Answer 27

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

Question 28

What is the difference between a proprietary right in land and a personal right in land?

Answer 28

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)