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Land Law > Nature of Land > Flashcards

Nature of Land Flashcards

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1
Q

What is land?

A

Land is both the physical and intangible - the rights in land. But the physical land includes not just the surface.

Airspace - as much as for reasonable enjoyment
Subsoil - ground underneath
Mines and minerals - but not natural resources like coal
Water - bore holes but not a river
Plants and trees - anything that grows on the land is the landowner’s
Items found in or on the land - if the landlord shows some control or intention to control; treasure belongs to the crown
Buildings - belong to the land
Fixtures - not fittings

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2
Q

What are fixtures and fittings?

A

Fixtures are objects that are fixed to the land and therefore a part of the land. Fittings are chattels - not part of the land.

Two tests to see if an item is a fixture or a fitting:

  1. Degree of annexation test” how hard is it to remove the item? The harder it is, the more likely to be a fixture.
  2. The purpose test: does the item permanently increase the value of the land? If so, more likely to be a fixture.
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3
Q

What is an estate in land?

A

A right someone has over the land. The highest rights of ownership in land.

Two kinds of estate in land:
1. Freehold: legal estate that lasts for an unlimited amount of time and is perpetual. Owner has full rights in the land. All land must have a freehold owner.

  1. Leasehold: a legal estate that lasts for a certain period of time. Lease temporarily sits over the freehold.
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4
Q

What is an interest in land?

A

A right someone has over another’s land (or estate).

Two kinds of interest:
1. Legal interest: must be made by deed.
2. Equitable interest: must be made in a contract for land.

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5
Q

Differences between legal and equitable interests in land?

A
  1. A breach of a legal right automatically entitles the innocent party to damages. Enforcement of equitable rights is subject to the rules of equity.
  2. Whether a right is legal or equitable determines how it is registered and whether it is enforceable against a third-party purchaser.
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6
Q

What is the difference between proprietary and personal rights?

A

A proprietary right can bind third-party purchasers of the land who were not original parties to the right. Personal rights cannot bind third-parties.

  • Estates in land and interests in land are proprietary rights
  • Personal rights are merely contractual rights. They bind only the counter-party to the contract (under privity of contract rules). A third-party purchaser is not bound by any right under a licence unless they are a party to that licence agreement.
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7
Q

What are the legal interests in land?

A

Those specifically listed by the Law of Property Act 1925. Any interest not included in the list is an equitable interest.
1. The estates in land (freehold and leasehold)
2. Easements: gives someone a right to use another’s land in a certain way or prevents someone from using the land for a certain purpose
3. Charge by way of legal mortgage

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8
Q

What are the requirements for a deed?

A
  1. Must be clear it is intended to be a deed (put Deed at top)
  2. Signed by the person executing it and witnessed (the witness signs)
  3. Delivered: means the deed must be dated

Signed, Sealed (intended to be a deed), delivered (and witnessed)

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9
Q

What are the equitable interests in land?

A
  • Interests of beneficiaries under a trust
  • Failed legal easements
  • Restrictive covenants
  • Not registered as required by LRA 2002
  • Estate contracts (contracts for sale of land, options)
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10
Q

What are the requirements for a contract for land?

A
  1. Be in writing;
  2. Contain all the terms agreed upon by the parties; and
  3. Be signed by all the parties
  • Often, the requirements for a deed have not been met, but the requirements for a contract for land have, meaning you have an equitable interest.
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11
Q

How can you determine whether a right is proprietary or not?

A

1) Determine if the right is on the list of recognised proprietary rights

2) Whether it satisfies the substantive characteristics; and

3) Has it been created/acquired in accordance with the formalities for the right

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12
Q

What is the advantage of proprietary rights over personal rights?

A

A proprietary right is capable of being enforced against third parties. It will not just be enforceable against the grantor of the right. A proprietary right is not, however, automatically enforceable against a third party.

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13
Q

What are the recognised proprietary rights?

A

Legal:
- Mortgages
- Easements granted for a term equivalent to a freehold or leasehold estate (ie forever or for a certain term)
- Rights of entry

Equitable:
- Freehold covenants
- Estate contracts
- Interests in a trust of land
- Easements granted for an uncertain term

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14
Q

What is a mortgage?

A

Capable of being a legal interest.

A mortgage can be defined as a bundle of rights granted over property in exchange for a loan of money. These rights include the right to possess and sell the land in the event of default in the mortgage payments.

It is the borrower that grants the mortgage not the lender.

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15
Q

What is an easement? When is it legal?

A

An easement is a proprietary right to use land which belongs to somebody else. The use is more limited than an exclusive right to occupy or use.

An easement must be granted for a term equivalent to one of the legal estates to be a legal easement (ie forever or for certain period like a lease).

Examples: rights of way, drainage, storage, parking on neighbouring land

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15
Q

What is a right of entry?

A

A legal interest in land. Also known as a forfeiture clause.

A right for a landlord to re-enter leased premises and end leasehold estate in the event of a tenant default or some other specified event occurring.

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16
Q

What is a restrictive covenant?

A

Equitable interest in land. Negative in nature, prevents a landowner from doing something on their land.

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17
Q

What is an estate contract?

A

A contractural right to a legal estate, whether freehold or leasehold.

Equity will order specific performance of a contract to create or transfer a legal estate because each piece of land is regarded as unique.

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18
Q

What is an interest in a trust of land?

A

A trust exists where one person holds property for the benefit of another. When a trust exists, there is a split in the legal and equitable title. A piece of land may be placed in trust. Beneficiary has an equitable interest in the land.

Trustees and beneficiaries can be the same or different people.

19
Q

What are the two main distinctions between legal and equitable interests in land?

A

1) Remedies: legal interests have an automatic right to damages, whereas equitable interests do not.

2) Enforcement of the interest against third parties.

20
Q

How can a freehold estate be transferred?

A
  • Sale
  • Will
  • Gift
  • Operation of law (automatic transfer in certain situations eg bankruptcy)
21
Q

What are the three stages of the sale of a freehold?

A

1) Exchange of contracts

2) Completion of the deed

3) Registration

22
Q

What are the requirements of a valid contract in land?

A
  1. Contract must be in writing
  2. It must contain all the expressly agreed terms
  3. It must be signed by both parties
23
Q

How must a legal estate be transferred or created?

A

By deed. LPA 1925, s52

Must:
- Be clear it is intended to be a deed (say it is a deed)
- deed must be validly executed (and witnessed)
- deed must be delivered (dated)

Usually uses the TR1 form

24
Q

At what point does legal title to the land pass?

A

Registered land: Legal title does not transfer until registration has taken place.

Unregistered land: legal title is transferred upon completion of the deed

25
Q

What is the deadline for first registration?

A

New owner must register the land on the register for the first time within two months of completion, otherwise legal title will revert back to the seller.

26
Q

At what point do parties to the sale of a freehold become committed to the deal?

A

The exchange of contracts. Before this, the parties can walk away at any time without incurring any legal liability.

27
Q

What are the formalities for a contract in land?

A

LP(MA)A s2

  • contract must be in writing
  • must contain all the expressly agreed terms (can be incorporated by reference)
  • must be signed by both pasties

Any variation will also have to comply with these requirements.

28
Q

What is an agreement for lease/contract for lease?

A

Prior to the grant of a lease, the landlord and tenant may chose to enter into a contract themselves to enter into the lease in the future. This is common in practice where the premises are not ready for immediate occupation, but the parties want the certainty that a lease will be entered into.

29
Q

What is an option agreement?

A

A type of estate contract that gives another party a right during the option period to serve notice that they wish to buy the land. If notice is served during the option period, the seller must sell the land to the buyer. However, the buyer is not obliged to exercise the option.

30
Q

What is a right of pre-emption?

A

A type of estate contract that gives another party a right of first refusal in the event the land owner decided to sell their land. This means that the land owner cannot sell the land without first offering it to the party holding the right. There is no obligation to sell, and there is no ability for the party who has the benefit of the right to require the land be sold to them.

31
Q

What is the proprietary effect of a contract in land?

A

As an estate contract is a proprietary right in land it is capable of binding and being specifically enforceable against third parties.

To be binding against third parties, an estate contract must be protected.

32
Q

What remedies are available for breach of a land contract?

A

Damages: common law remedy and available as of right rather than courts discretion - usual measure is loss which the claimant has suffered as a result of the breach

Equitable (not available as a right):
Specific performance: Court order compelling the defaulting party to carry out contractural obligations.

Injunction: court order restraining somebody from doing something, including breaching a contract by selling land to someone else.

33
Q

What are the triggering events for first registration?

A
  • Transfer of the freehold estate by sale, gift, or court order
  • Grant of a lease for a term of more than seven years
  • A first legal mortgage of the freehold or of a leasehold with more than seven years to run
  • Assignment of a lease of unregistered land with more than seven years to run
  • An assent, vesting assent or vesting deed which is a disposition of the freehold or a leasehold with more than seven years to run
  • The grant of a lease to take effect in possession more than three months after the date of the grant
34
Q

What are the three principles of registered land?

A

1) The Mirror Principle

2) The Curtain Principle

3) The Insurance Principle

35
Q

What is an overriding interest?

A

An interest that does not appear on the register but will still be binding on the owner of the legal estate and any buyer of it. Their full title under the LRA 2002 is ‘unregistered interests which override registered dispositions’.

36
Q

What is the mirror principle?

A

The register should reflect all the matter that the property has the benefit of and all the matter that the property is subject to.

Never fully realised due to existence of overriding interests.

37
Q

What is the curtain principle?

A

Register records legal title, purchasers need not be concerned with equitable title.

38
Q

What is the insurance principle?

A

Accuracy of the register is guaranteed by the state. If an error with the registered, it will be corrected and anyone who has suffered any loss will be compensated.

39
Q

What are the four classes of title on the property register?

A
  1. Absolute: best title
  2. Qualified: title may have some defects
  3. Good leasehold: satisfied as to the title of the leasehold only
  4. Possessory: may be given where in possession of the property - usual class for those with a claim under adverse possession or squatters rights.
40
Q

What is the consequence of failing to register a transaction with the land registry?

A

Not legally recognised.

41
Q

What does the definition of land include?

A

LPA, 205(1) (ix)
Includes the surface, buildings or parts of buildings on the land. Other corporeal hereditaments - fixtures, and incorporeal hereditaments - any benefits that have no physical substance (easements)

42
Q

Do land owners own the airspace above the land?

A

Yes but restricted to such height as is necessary for the ordinary use and enjoyment of the land and structures upon it. (difference between lower and upper airspace)

Immunity for trespass or nuisance for any innocent flight of aircraft.

If a structure overhangs your property so that is it in the lower airspace, that is a trespass irrespective of whether that damage is caused to your property.

43
Q

Do land owners own the ground below them?

A

Yes

Exceptions:
- All mines of gold and silver belong to the crown, same with treasure
- Any coal belongs to the coal authority
- No trespass at depths below 300 metres

44
Q

What is the legal test for determining if an object is a fixture or chattel?

A
  1. The degree of annexation
    - the more firmly the object is fixed to the land or building the more likely it is to be classifies as a fixture
  2. Purpose of annexation test
    - why is the object attached? Was annexation for more convenient use or enjoyment of the chattel as a chattel or to enhance the land or building in some way - this test takes priority over annexation test
45
Q

What are the four principles of the equity of redemption?

A
  1. equitable right to redeem supplements legal right to redeem
  2. No postponement or prevention of redemption
  3. No collateral advantages
  4. No unconscionable terms
46
Q

What is the right to redeem?

A

Land Law (11 decks)

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