Nature of Land Flashcards
What are personal rights?
can only be enforced by a personal action for damages if the right is breaches. Use or occupation cannot be recovered. Will only bind the original parties, and no recourse against a third party. An example is a license.
What is a proprietary right?
Property right - enforces by an action in rem - so not just damages but also recover use or possession AND against a third party.
What rights have proprietary status?
- Freehold estate
- Leasehold estate
- An easement – right of way – if term of right is uncertain – then is not a legal easement may be an equitable
- A mortgage – equitable rights -
- A restrictive covenant – promise not to do something on land.
- An estate contracts – contractual right to an estate in land. Signed by both parties.
- A beneficial interest in a trust of land – where there is a trust of land – beneficiary has an equitable interest which is subject to the trust. Express trust – evidences in writing and signed by covenant. OR implied trust but no formalities because of contribution.
What are the types of estates in law?
Freehold estate
- Highest possible estate is the fee simple absolute in possession – known as freehold estate
- Lasts until owner dies for first time without heir.
Leasehold estate
- When a freehold owner grants lesser estate which is of a certain duration – it’s a term of years absolute – so a lease.
A proprietary right of limited use is an INTEREST IN LAND. LEGAL INTERESTS?
- Mortgages
- Easements granted for a term equivalent to a freehold or leasehold estate
o A proprietary right to use land which belongs to someone else.
o Must be granted for a term equivalent to above to be a legal easement.
- Rights of entry
o Right for a landlord to re-enter leased premises in the event of tenant default or some other specified event
Equitable rights?
- Freehold covenants
o A covenant is a promise relating to the land. Covenants between freehold owners generally arise when one person sells part of their land and wishes to ensure that the buyer does not do anything which could. RESTRITIVE COVENANT
Estate contracts
Interests in a trust of land
Easements granted for uncertain time.
3 stage process for transfer of freehold estate?
Pre exchange of contracts – when an offer has been accepted, they have agreed in principle to sale – buyer will normally make various enquiries before committing to a purchase by the formal exchange of contracts.
Exchange of contracts
- Enter into a binding contract
- Parties become legally committed to buy/sell the land
All land contracts must be
o In writing
o Contain expressly agreed terms
o Signed by both parties
Completion of deed
Registration - Legal title does not pass until this.
What are the requirements of a deed?
o Must be clear on the face of the document that it is intended to be a deed
o Deed must be validly executed (signed by seller in presence of a witness) if the seller is a registered company can execute by:
Two directors signing in presence of a witness
One director and company secretary signing in presence of a witness
Affixing common seal of company
o Deed must be delivered.
o NO LEGAL OBLIGATION FOR BUYER TO EXECUTE THE ESTATE
Standard form of transfer deed – is called TR1 – Form prescribed by land registry. Buyer pays the balance and seller moves out and give skeys.
Transfer of leasehold estate?
- Deed –
- Registration if the lease is registered
- To create a lease over 7 years – a DEED MUST BE USED.
- If lease if 7 years or less – they don’t need to be registered but do need to be created by deed.
Requirements of land contracts?
Contracts where subject matter is land
Must be in writing
o No scope of an oral contract
Expressly agreed terms
o Can be set out by reference to a document
o Law society standard conditions of sale
Signed by both parties
o Exchange contracts
What’s on the property register?
Description of land
Type of estate – freehold or leasehold
Details of any rights that benefit the land
Land registration?
UNREGISTERED LAND – MUST OCCUR WITHIN 2 MONTHS – LEAGL WONERSHIP PASSES AT COMPELTION – TRIGGERS NEEDING TO REGSITER. OTHERWISE LEGAL TITLE WILL REVERT BACK.
Triggering event require it to be registered or for it to be
- Transfer, or grants, or assignment of a lease with more than 7 years, a first legal mortgage.
Rules and effect of land contract?
Can a land contract be varied:
- Only if it’s a material term and the variation comply with LPA 1989 S2
Proprietary effect of contract
- Pass an equitable interest in land to buyer called estate contract
Application
- As part of process of conveyancing – buyer and seller may choose to enter into a sale contract to record terms of agreement
Enforceability of it
- Can be against third parties but the contract must be protected against third parties to do so.
Remedies for breach of a land contract
- Either party should be entitled should the other party breach any terms of the contract
Damages – common law remedy – available as a right rather than at courts direction
What’s on the proprietorship registers
name and address of the register proprietor of land
details of any restriction affecting registered proprietor ability to deal with land
Class of title
* Absolute – best form - only bound by interests registered or by overriding interests
* Qualified – if title has some defect
* Good leasehold – satisfied to title of leaseholder only and not freeholder
* Possessory – where application is in possession of property and where there is no title deed needed to prove ownership – like adverse possession or squatters right.
Legal test for fixtures?
Degree of annexation – how object is fixed and attached to land
- Even fi fairly easy to remove it still prima facie that of a fixture
Purpose of annexation test – why is it attached
- Whether it’s to enhance land in some way
- Takes priority over degree of annexation test
