Nature of Land Flashcards
What is land?
Includes:
* The land itself
- Buildings, soil, trees, minerals under the ground - Tangible aspects of land capable of being sold and passed on – these are called corporeal hereditaments
- Intangible rights like rights to occupy property, easements, rights to live – incorporeal hereditaments
What are fixtures and chattels?
Fixtures are part of the land and cannot be removed - Fixtures are passed to buyer on sale
Chattels are personal property which can be taken by the seller
What are the two tests to determine whether an item is a fixture or chattel?
1) Degree of annexation – how firmly fixed is the object; would removing it cause significant damage?
2) Purpose of annexation – reason why the item is there; this test carries greater weight – kitchen units and built in oven with inset hob are fixtures
- If an object is likely to be destroyed when moved, probably a fixture
What are ‘estates’ in land?
There are two estates that are capable of being legal - defined in s1(1) LPA
1) Freehold – estate in fee simple absolute in possession – can hold it forever
2) Leasehold – term of years absolute (carved out of a freehold – exclusive possession for a fixed period)
- Can be a fixed term lease (fixed for any period)
- Can be a periodic lease (extends automatically after a fixed period until either landlord or tenant give notice to terminate the lease
What are legal ‘interests’ in land?
Means a right over land owned by someone else, that is capable of being legal - defined in s1(2) LPA
Must be a specific type of interest and have complied with formalities to be legal
Main ones of relevance are easements and mortgage
How can equitable interests in land come about?
- By express trust – trustee holds title and beneficiary enjoys benefit
- By implied trust – resulting or constructive trust
- By trying to create a legal estate/interest, but failing to meet formalities
Some interests are equitable by nature and cannot be legal:
- Beneficial interest under a trust
- Restrictive covenant
- Estate contract – contract for sale of freehold/leasehold before completion + transfer deed; contract for grant of lease or grant of easement
What are home rights?
They protect the rights of a non-owning spouse or civil partner to remain in occupation of the matrimonial home:
- Parties must be legally married or civil partners; and
- Home is, has been, or is intended to be the matrimonial home
They don’t create an interest in land
What is a licence?
Personal right which does not create an interest in land
Only bind the parties to it and not successors in title
Can be revoked at any time
What are the formalities for the creation or transfer of legal estates + interests?
Deed required which meets these criteria:
- In writing
- Clear on the face that it is a deed
- Signed
- Witnessed (by one witness)
- Delivered
What exceptions are there to the formalities for creation or transfer of legal estates + interests?
Easements by prescription don’t require a deed
Parol leases - these are short term leases which can be made orally. Only legal if:
- Lease is for 3 years or less (periodic leases for 3 years or less would count)
- Tenant must have immediate right to possess and enjoy land
- Tenant pays market rent
- Landlord does not charge a fine or premium in granting lease
What formalities are needed for a valid estate contract (creates an equitable interest in land)?
- In writing
- Incorporate all expressly agreed terms in one document (or in each where they are exchanged)
- Be signed by or on behalf of all parties
- ‘Clean hands’ - cannot be dishonest, otherwise an equitable interest won’t be recognised
When would an estate contract be relevant?
When:
Selling freehold/lease
Granting lease
Creating an easement
What formalities are needed to create an equitable interest in land?
If the interest is only capable of being equitable, it will only be valid if it is created in signed writing (s53 LPA)
Exception – no formalities for implied trusts (s53(2) LPA)
Remember that contracts to create legal leases and easements create equitable leases and easements - a deed is required to make them legal
What is a general five stage approach to identifying third party rights in land?
1) Identify the interest – what is the nature of the right?
2) Is the interest capable of being legal or is it equitable by nature?
- Easements for an uncertain duration can only be equitable (for the life of someone means uncertain)
3) Have the correct formalities been used?
- For interests capable of being legal, a deed is needed
- Does an exception apply (parol lease or easement via prescription?)
- Needs to be in signed writing to be equitable
4) Is the interest capable of being legal but there is no deed?
Contracts, which comply with the below + clean hands = recognised by equity
- In writing
- Incorporate all expressly agreed terms in one document (or in each where they are exchanged)
- Be signed by or on behalf of all parties
5) Legal, equitable or statutory? - conclusion
- If formalities not followed and equity does not intervene, there is no valid interest in land – licence only
- Home rights don’t create an interest in land and require no formalities to create
