Nature of Land Flashcards
1
Q
Conditions for a parol lease [legal]:
A
- 3 years or less
- Tenant pays market rent
- Landlord does not charge a premium
- Takes effect in possession
2
Q
If rent is paid quarterly, does this fall within the parol lease exception?
A
YES. If rent is paid quarterly so there is an implied quarterly periodic tenancy, which will fall within the parol lease exception, s.54(2) LPA 25. It is for less than three years (each period of the lease is 3 months)
3
Q
Is a deed needed for a 5 year lease
A
Yes
4
Q
Conditions for a legal easement [freehold] and [leasehold]:
A
Freehold = Must be granted for a period equivalent to a fee simple absolute in possession
Leasehold = Must be granted for a term of years absolute
Easement must be granted forever or for a fixed duration.
5
Q
If a easement is granted over the land owner’s retained land for the rest of the buyers life - is it an equitable easement or a legal easement?
A
Equitable
6
Q
Is a right to use drains an easement or a positive covenant?
A
Easement
7
Q
A positive covenant does not normally pass to a successor in title at law - but what is an indirect mean of enforcing it?
A
chain of indemnities already in existence
8
Q
Two conditions to satisfy a ‘home right’
A
- Non-legal owning spouse
- Still legally married
9
Q
When is a statute in the garden classed as a fixture rather than a chattel?
A
As it forms part of the architectural design of the garden.
[Greek gods and goddesses in the garden, cant take one]
10
Q
Under what circumstances would equity intervene to recognise this arrangement:
5 year lease entered into a agreement that isnt formalised in any way?
A
Valid Contract in:
Writing
Signed
Contain all the expressly agreed terms
Tenant has clean hands
11
Q
Is ‘the option to purchase’ legal or equitable
A
equitable
12
Q
formalities for an equitable lease/estate contract:
A
document
written
signed
contains all the agreed terms
tenant has clean hands
13
Q
What can the legal estate be held as ?
A
Joint Tenants
14
Q
What can the equitable estate be held as
A
Joint Tenants or Tenants in Common
15
Q
Max amount of trustees
A
4
16
Q
Powers of the trustees
A
- sell, mortgage or buy the trust land
- must consult the beneficiaries
- comply with the wishes of the beneficiaries as far as practicable
17
Q
Joint Tenancy:
A
- right of survivorship [on death passes to the remaining joint tenants]
- entitled to whole of property
- can sever in equity to become tenants in common
18
Q
Tenancy in Common:
A
- No right of survivorship [on death passes through will/intestacy]
- Unequal shares allowed
- May be alot of tenants in common
19
Q
Is it a joint tenancy or a tenancy in common in equity?
A
- For a joint tenancy:
- possession of whole
- identical rights over land
- interest from same document
- recieve interests at same time - Check for express decleration
- Check for words of severance [equally divided by]
- does equity presume tenants in common [is it a business usage- tic , are there unequal shares -tic]
20
Q
Ways to sever a joint tenancy:
A
Written Notice
Selling/Mortgaging
Conduct showing intent to sever
Homicide
21
Q
Written notice severing a joint tenancy
A
written notice stating an intent to sever NOW and not in the future
needs to be recieved or deemed to be recieved
22
Q
If the notice to sever is by registered letter, when is it deemed sufficiently served?
A
If the letter is not returned undelivered.
23
Q
If the notice to sever is by ordinary post, when is it deeed sufficiently served?
A
if left at the last known abode/buisness in the UK
24
Q
For severance by mutual agreement, what is required
A
An agreement [can be oral] and it need not be carried through to performance.
Expresses an intention to sever the joint tenancy.
25
For severance through mutual conduct/course of dealing, what is required?
Show through their conduct, that they own distinct shares
26
What is the effect of severance
2 JT in equity become 2 tenants in common 50%
3 or more JT in equity, the co-owner who severs the JT becomes a TiC. The other two hold a JT in equity of the remaining interest
27
Harry and Seema purchase 77 Bottle Lane (‘the Property’). Seema contributed 70%
of the purchase price and Harry the remaining 30%. The transfer to them contained a
declaration that the Property was held legally and beneficially as joint tenants. Harry sells
his interest in the property to his brother, Joseph. Subsequently, Seema is killed in a tragic
road accident. Seema left all her interest in the Property to her cousin, Ambar. How much interest does Ambar have in the property?
Legal estate
The legal estate was held as a joint tenancy. On Seema’s death, the rule of survivorship
applies and Harry becomes the sole trustee of the legal estate.
Equitable interests
Harry and Seema held the equitable interest as joint tenants. Harry’s sale to Joseph was
an act operating on one joint tenant’s share and severs the joint tenancy in equity. Upon
severance, Harry and Seema held the equitable interest as tenants in common in equal
shares. Their initial contributions are irrelevant.
On Seema’s death, her interest passed to Ambar. Amber holds a 50% interest in the Property
as a tenant in common. Joseph also holds a 50% interest in the Property as a tenant in
common.
28
When does a resulting trust arise?
When a person who has no legal title to the property contributes to the purchase price.
29
When does a constructive trust arise?
Agreement + detrimental reliance [paying for improvements, all the bills, work unpaid]
or
Conduct + direct financial contribution
[paying towards the purchase price initially, paying towards the mortgage payments]
30
Resolving disputes when couples fall out and argue over selling/retaining the property then:
- intentions of the trust creator
- purpose of the trusts
- kids
- secured creditors interests
31
If there is a wife and husband who are joint tenants of the legal estate and beneficial estate, and the husband dies, what does the buyer need from the solicitor in relation to the husbands death?
the husbands death certificate only
32
In resolving a dispute for persons who in a TIC, want to sever, and another person wants to keep the property, what is the process for resolving the dispute?
Make an application to the court under s14 TOLATA and the court may make such order as it thinks fit
33
What the court considers when applying s14 TOLATA [disagreements between co owners]
- intentions of the person who created trust
- subject matter
- any minors/kids
- secured creditors
34
When is an easement created under the Wheeldon v Burrows Rule [quasi to easement]
- if continuous and apparent [visible path]
- necessary for reasonable enjoyment [avoids a dangerous road]
- used at the time of sale
35
36
When is an easement created by implication under s62 LPA 1925: hint = sign.
- Where there is a conveyance [5 year lease, 3 year lease/transfer of FH]
- Existing priviledge [owners consent to erect a sign]
-Diversity of occupation
37
How to ensure there is an indefeasible right of way?
Deed
Landowners signature
Witnessed by 3rd party
Register deed at Land Registry
38
If there is a right of way to multiple people, who is liable to maintain it, the servient or the dominant tenant?
Noo one
39
Is a positive covenant a legal interest or an equitable interest?
An equitable interest
40
do the burden of positive covenants pass
No they do not unless mutual benfit and burden
41
When do the burden of restrictive covenants pass in equity?
If the criteria in Tulk v Moxhay is met:
1. covenant benefits the dominant land
2. covenant intends to burden the servient land
3. owner has notice of the covenant through registration
42
Remedies for breach of a positive covenant
Damages
Specific Performance only for the original covenantor
43
Damages for a restrictive covenant:
Injunction
Damages in situations where it is capable of being estimated in money.
44
How to remove/discahrge the effect of a freehold covenant;
1. Agree to be released from the covenant through money
2. Common ownership [buy both the servient and dominant land]
3. s84 LPA Upper Lands Tribunal [rare] for restrictive covenant releases.
a] Found to be obselete
b] impedes some reasonable use of the land
c] both parites agreed to discharge
d] against public interest
45
Are mortagages capable of being legal?
Yes, it is a legal third party right over land
46
What formalities are needed to create a mortgage?
A deed [witnesses, signed, delivered]
47
Where can equity recognise a mortgage [equitable mortgage]?
Where the document lacks the requirements of a deed, equity may intervene and recognise an equitable mortgage
48
The remedies to a lender in relation to a legal mortgage
Possession [physical possession/if the property is let, that the tenants pay rent to the lender. Reasonable period for borrower to demonstrate they have a plan to pay
Power of sale [use if defaults for 2+ months, or breaches term of mortgage]
Appointing a reciever - use for income generated properties [collects rent and profits and applies funds to the lenders debt].
Foreclosure - rare
49
If there is a mortgage over the property, created by deed, how and where will it appear on the register of title to the property?
Charges Register
50
Regarding the priority between mortgages, what is the order?
Whatever one is registered first
51
priority period for mortgages
30 WORKING DAYS
52
Which remedy for a mortgage, is most appropriate for recovering the money whilst allowing the borrower to remain in occupation and recieve income the property might produce?
Debt action
53
In unregistered land, what does a puisne mortagage need to be protected by?
Land Charge
54
What is a puisne mortgage?
A legal mortgage not protected bt deposit of deeds
2nd mortgage
55
Alice has recently completed the purchase of Honeysuckle House consisting of a large
house, self- contained annexe and a large garden (‘the Property’) from Belinda. Alice has
discovered the following:
(a) Belinda created a right of way, by deed, in favour of the owner of the adjoining
Rose Cottage.
(b) Tina has exclusive possession of the self- contained annexe for the following year and
is paying market rent. Tina cannot produce any written evidence for this.
(c) Belinda created a mortgage, by deed, in favour of a Capital Bank Plc and deposited
the title deeds to the Property with the bank.
Will Alice be bound by these interests?
Each interest is capable of being legal, being an easement, lease and mortgage respectively
(see s 1(1) and (2) LPA 1925).
The easement and mortgage have been created by deed and therefore comply with the
formalities required by s 52(1) LPA 1925 and s 1 LPMPA 1989. They are a legal easement and
legal mortgage respectively.
The arrangement with Tina has the hallmarks of a lease as she has exclusive possession for
a fixed duration. A lease is capable of being a legal estate (s 1(1)(b) LPA 1925). Usually, a
lease must be created by deed in order to be legal (s 52(1) LPA 1925). However, the lease
is for a duration of three years or less and meets the criteria in s 54(2) LPA 1925 (granted
in possession, at the best rent reasonably obtainable and without a fine or premium) and,
therefore, requires no formalities. It is a legal lease.
The easement, lease and mortgage are binding on Alice. They are legal estates or interests
and therefore bind the world
56
A good proof of title includes:
- at least 15 years
- shows ownership of legal/equitable estate
- describes the land clearly
57
when are land charges protected and when can they bind the buyer?
if they are registered, this constitutes actual notice.
58
Class C[iv]
Estate Contract
59
Class D ii
Restrictive Covenant
60
Class Diii
Easement
61
Class F
Home Right
62
What are pre 1925 or equitable interests in unregisitered land bound by?
- good faith purchasor
- consideration given
- no notice
63
actual notice
buyer knows eequitable interest exists
registered
64
constructive notice
whe inspecting land/fail to inquire/dont make the right inquries
65
imputed notice
suveyor/solicitor/agent knows
66
what is overreaching?
paying the purchase money to a min of 2+ trustees, then theres no longer a beneficial interest
67
on an unregistered property, will a buyer be bound against a legal easement?
yes as binding against the whole world
68
A successful claim for an overriding interest needs either:
interest + obvious actual occupation
or
interest + non-obvious actual occupation + actual knowledge
69
what does a qualified covenant mean for consent?
the landlord can withold their consent if it is reasonable to do so
70
if there is a second legal charge over someones house, and there already is a legal mortgage, what should the bank do to protect their interest
register on charges register
71
On unregistered land, what out of these needs to be registered as a land charge to be enforceable?
1. lease of 7 years
2. interest under a resulting trust
3. easement of 10 years by deed
4. restrictive covenant from 1922
5. easement of 2 years granted in writing, signed by the grantor and grantee and containing all agreed terms
easement of 2 years granted in writing, signed by the grantor and grantee and containing all agreed terms
registered as a class c [iv] land charge
72
What is a mortgage protected by?
2 entries on the charges
1 entry on the proprietorship
two entries in the Charges register; one giving the date and purpose of the charge and one stating the identity of the lender. The lender may also wish to register a restriction in the Proprietorship register preventing the borrower from making a disposition without the consent of the lender.
73
Under the SCPC, who is liable to pay delayed completion money
buyer and seller
74
Under the SC, who is liable to pay delayed completion money
buyer only
75
When do you need a court order to sell a property under a mortgage
For residential properties
76
difference between the pre-contract searches and post contract
pre = desktop environmental search etc
post = company search, search of the whole/part
77
if the property is generating income, such as a hotel, then what needs to be appointed?
RECIEVER
