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Land Law (FLK2) > Nature of Land > Flashcards

Nature of Land Flashcards

1
Q

What are the two key pieces of legislation regarding land law?

A

-Law of Property Act 1925 (LPA)

-Land Registration Act 2002 (LRA)

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2
Q

What is a proprietary right in land and provide an example?

A

Can be enforced by an action in rem, meaning that use or possession of the land can be recovered. The holder of the right does not have to settle for damages if they are deprived of the right.

Capable of being enforced against a third party.

Example would be an easement.

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3
Q

What is a personal right in land and provide an example?

A

Can only be enforced by a personal action for damages if the right is breached. Use of the right cannot be recovered.

Personal rights will only bind the original parties to the right, there can be no recourse against a third party.

Example is a licence.

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4
Q

What is the fixed list of proprietary rights?

A

-freehold estate
-leasehold estate
-easement
-mortgage
-restrictive covenant
-estate contract

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5
Q

When a person owns a piece of land do they own the physical land itself?

A

No, they do not actually own the physical land itself but a right to possess the land. This is a very powerful proprietary right.

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6
Q

What are the two estates in land?

A

-Freehold estate

-Leasehold estate

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7
Q

Describe the nature of a freehold estate.

A

Fee simple absolute in possession (LPA 1925, s1(1)(a)), more commonly known as the freehold estate.

It is a right of possession which lasts until the owner for the time being dies without heirs, meaning without any blood relatives and without having disposed of it by will.

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8
Q

Describe the nature of a leasehold estate.

A

Where a freehold owner grants a lesser estate, which is of a certain duration, the estate granted is a term of years absolute (LPA 1925, s1(1)(b) LPA) which is known as the leasehold estate/lease.

The leaseholder, known as the tenant, may grant a lease of a lesser duration out of their own leasehold, while still retaining the original lease. This is known as a sub-lease.

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9
Q

What is the freehold and leasehold reversion?

A

The residue of the estate after the granting of a lease is known as the freehold reversion.

If the grantor holds a leasehold estate, the residue is known as the leasehold reversion.

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10
Q

What is a commonhold?

A

A type of freehold which is an alternative to a long lease designed to meet the needs of owners of flats/apartments and other properties such as retirement homes.

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11
Q

What does an interest in land permit the interest holder to do?

A

It gives the interest holder the right to do something on the land, or restrict what can be done on the land.

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12
Q

What are the legal interests recognised under LPA 1925, S1?

A

-Mortgages

-Easements granted for a term equivalent to a freehold or leasehold estate

-Rights of entry/forfeiture clauses

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13
Q

What are the equitable interests recognised under LPA 1925, S1?

A

-Restrictive covenants

-Estate contract

-Interest in a trust of land

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14
Q

What is the difference between legal and equitable interests?

A

A person who holds a legal interest will have a wider range of remedies available if the interest is infringed. They are also automatically entitled to damages as of right.

In contrast, a person who holds an equitable interest is not entitled to damages as of right and any remedy granted is at the discretion of the Court.

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15
Q

At what point during the transfer of a freehold estate do the parties become contractually committed to the deal?

A

Exchange of contracts. The parties can walk away at any time before this point without incurring any legal liability.

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16
Q

What are the requirements of a valid land contract under LP(MP)A 1989, S2?

A
  1. The contract must be in writing (cannot be oral)
  2. It must contain all the expressly agreed terms (either set out in document or referring to some other document)
  3. It must be signed by both parties (either on one document or two identical documents)
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17
Q

What does the variation of a land contract need to comply with?

A

Whenever a material term in a land contract is varied, that variation must also comply with LP(MP)A 1989 s2.

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18
Q

What is the effect of a binding land contract?

A

To pass an equitable interest in the land to the buyer, called an estate contract.

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19
Q

When will the Courts recognise an equitable interest in the land in the event of a failed legal interest?

A

-There is a document that complies with LP(MP)A 1989, s2; and

-The remedy of specific performance is available

For example, a contract to create a legal lease will create an equitable lease.

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20
Q

What are the remedies for breach of a land contract?

A

-Damages
-Specific performance
-Injunction

Specific performance and injunction are equitable remedies meaning they are not available as of right and equitable principles will apply.

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21
Q

What are the requirements of a valid deed under LP(MP)A 1989, S1?

A
  1. A deed must be clear on the face of the document that it is intended to be a deed (labelling it as a deed).
  2. The deed must be validly executed (deed must be signed in the presence of a witness who also needs to sign the deed to attest the signature).
  3. The deed must be delivered (dating the document).
22
Q

What form is used for a transfer of land?

A

A standard form of transfer deed is used, known as a TR1.

23
Q

When does legal title transfer in registered land?

A

Once registration has taken place.

24
Q

When does legal title transfer in unregistered land?

A

At completion of the deed.

25
Q

When must the new owner of unregistered land register the land with the Land Registry?

A

Within two months of completion, otherwise the legal title will revert back to the seller.

26
Q

If a piece of land is registered, what does this mean?

A

It means the land has been registered at the Land Registry. The register is a complete record of all matters relating to a piece of land.

27
Q

Where is the title information for unregistered land contained?

A

The title information is contained in various old paper title deeds.

28
Q

What are the advantages of the registered land system?

A

-Each registered title has a title plan

-Ownership is guaranteed by the state

-Title information is easily accessible online

-Speeds up the conveyancing process

29
Q

What are the disadvantages of the unregistered land system?

A

-Difficult to discover third party interest

-Reading/obtaining ancient documents can be difficult

-No state guarantee of accuracy/compensation of error

-Conveyancing process is slower and more expensive

30
Q

What is first registration?

A

Each time that unregistered land is sold for the first time since 1 December 1990, it must be registered.

31
Q

What are the triggering events which trigger compulsory registration at the Land Registry?

A

-Transfer of the freehold estate by sale, gift or court order

-Grant of a lease for a term of more than 7 years

-Assignment of a lease of unregistered land with more than seven years to run

-Transfers on death with more than seven years to run

-The grant of a future lease to take effect more than 3 months after the date of the grant

-A first legal mortgage of the freehold or of a leasehold with more than 7 years to run

32
Q

What are the three principles of land registration?

A
  1. The Mirror Principle-the register should reflect all matters that the property has the benefit of and all the matters that the property is subject to.
  2. The Curtain Principle-the register records the ownership of the legal estate in the property, the legal title.
  3. The Insurance Principle-the accuracy of the register is guaranteed by the state. Any errors causing loss will be compensated by the state.
33
Q

What is absolute title?

A

Best form of ownership. Only bound by registered interests or overriding interests, most common grade given.

34
Q

When is qualified title given?

A

If the Land Registry is of the opinion that the title has some defect, this will be the class of title. It is very rare in practice.

35
Q

When is good leasehold title given?

A

This will be granted where the Land Registry is satisfied as to the title of the leaseholder only and not the freeholder.

36
Q

When is possessory title given?

A

This may be given by the Land Registry where the applicant is in possession of the property or in receipt of rents and there is no other title that can be given. Usually given to those with a claim under Adverse Possession or Squatters Rights.

37
Q

What is the statutory definition of land as set out in LPA 1925, S205(1)(ix)?

A

Land includes the surface, buildings or parts of the buildings on the land, other corporeal hereditaments and other incorporeal hereditaments.

38
Q

What are corporeal and incorporeal hereditaments?

A

Corporeal hereditaments: means physical things attach to the land (fixtures).

Incorporeal hereditaments: the benefit of any proprietary rights that the land has but which have no physical substance.

39
Q

What does the ancient Latin maxim ‘Cuius est solum eius est usque coeleum et ad inferos’ mean?

A

He who owns the land owns everything up to the heavens above and the depths below.

40
Q

What are an owner’s rights in the airspace above his land restricted to?

A

Such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.

41
Q

What is the distinction between upper and lower airspace?

A

There is no exact height from where the upper airspace begins.

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

42
Q

What are the exceptions to the general principle that a conveyance of land ordinarily carries with it all that is beneath the surface?

A

-Any coal under land belongs to the Coal Authority by virtue of the Coal Act 1938

-A landowner is not entitled to all minerals under its land. All mines of gold and silver belong to the Crown as well as any treasure under the Treasure Act 1996

-The Infrastructure Act 2015, s43 states there is no trespass at depths below 300 metres

43
Q

What are fixtures?

A

Items fixed to the land form part of the land.

44
Q

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

A
  1. The degree of annexation test
  2. The purpose of the annexation test
45
Q

Describe the degree of annexation test in relation to fixtures.

A

The more firmly the object is fixed to the land or building, the more likely it is to be classified as a fixture.

If on the other hand, it rests on the land by its own weight, it is generally considered to be a chattel.

46
Q

Describe the purpose of annexation test in relation to fixtures.

A

This test considers why the object is attached to the land/building. It asks whether the annexation was more for convenient use or enjoyment of the chattel as a chattel.

This test takes priority over the degree of annexation test.

47
Q

What did the Judge in Botham v TSB Bank Plc (1996) state in relation to fixtures/chattels?

A

If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture.

If the attachment is temporary and is no more than necessary for the item to be used and enjoyed, then it will remain a chattel/

48
Q

Provide an example of items which are likely to be classed as chattels.

A

-Ornamental items
-Carpets and curtains
-Light fittings attached by screws
-Kitchen appliances

49
Q

Provide an example of items likely to be classed as fixtures.

A

-Kitchen units
-Items installed by a builder

50
Q

Does a conveyance of land automatically include all fixtures in the property?

A

Yes, all fixtures in the property are included in the conveyance unless the items are specifically excluded from the sale in the contract.

If the contract is silent, the seller may not remove a fixture after they have contracted to sell the property to another.

To avoid a dispute, it is common practice for the parties to complete a Law Society Fixtures and contents form (Form TA10) which forms part of the contract.

Land Law (FLK2) (10 decks)

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