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Land Law > Owner-Occupation > Flashcards

Owner-Occupation Flashcards

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1
Q

What are Registered Proprietors referred to in the priorities triangle? and what kind of interest do they have?

A

Trustees

Legal/ ‘at law’

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2
Q

What are those not on the Register referred to in the priorities triangle? and what kind of interest do they have?

A

Beneficiaries

In equity

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3
Q

How do registered proprietors “co-own” the legal title at law?

A

They’re legal “joint tenants”, so all own all, for market facilitation sakes: if one dies, just apply to have one name removed from register, all signatures needed to e.g. mortgage

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4
Q

Registered proprietors/trustees are legal ‘joint tenants’, what does this mean we can do?

A

all the powers of an absolute owner, but can be limited by beneficiaries rights

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5
Q

How do beneficiaries “co-own” the beneficial title?

A

Spending on what the trust establishes, as joint tenants, or as tenants in common

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6
Q

In what two ways do trusts of land come about?

A

Express Trust - via express declaration

Implied Trust - in a messy conflict, a judge MIGHT create a trust and DECIDE that someone has a beneficial interest

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7
Q

In what cohabitation/co-ownership scenarios do judges have to consider whether to create an implied trust of land?

A
  1. If there’s a breakdown of a relationship of cohabitation outside marriage or civil partnership
  2. If there’s a priorities battle
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8
Q

What is the general concept of a constructive trust?

A

Courts will look at factual evidence to give effect to the ‘common intention’ of the parties regarding beneficial ownership, and create a trust in those terms - as a REMEDY

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9
Q

A constructive trust is ideally about what the parties intended, which can be one of what four things?

A
  1. Express declaration
  2. Express bargain
  3. Implied bargain
  4. Imputation?
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10
Q

What process would occur in a situation of Sole Legal Title, where no express trust exists, and conflict arises over ownership, with one registered proprietor?

A
  1. Presumption that equity follows the law = RP solely entitled beneficially
  2. Can the presumption be displaced? - Onus on one claiming beneficial interest
  3. Potential BI holder displaces
  4. Rosset test to establish an interest
  5. Quantification of BI
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11
Q

What process would occur in a situation of Joint Legal Title, where no express trust exists, and conflict arises over ownership, with two or more registered proprietors?

A
  1. Presumption that equity follows the law: at equity they are joint tenants beneficially
  2. Displace presumption? onus on person seeking to show beneficial relationship is different from legal ownership
  3. How to displace? (Stack v Dowden [2007] )
    - Unequal contributions alone not enough but long list of what will suffice, including “very unusual” separate finances
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12
Q

How does one go about displacing the presumption that equity follows the law in claiming a beneficial interest? (as in the case of Loyds Bank v Rosset)

A

Common Intention:

  1. Evidence of discussion (express bargain) + detrimental reliance

OR

  1. Inference from conduct = e.g. ‘direct financial contribution’ (implied bargain)
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13
Q

In what two ways can an interest be established by the Rosset test?

A

Express bargain: evidence of discussion + detrimental reliance

Implied Bargain: only “direct financial contribution” to purchase of house

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14
Q

How does one displace the presumption that equity follows the law in beneficial interest cases where there is joint legal title?

A

Jones v Kernott [2011]

  • A subsequent change in relationship and financial circumstances displaced starting point/presumption
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15
Q

What were the effects of the Housing Act 1980 and the ‘right to buy’ policy?

A
  • Compelled councils to sell social homes to their occupiers

- Most remaining council housing was transferred to the housing association sector

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16
Q

What 4 things make up the ‘Help to Buy’ scheme?

A
  • Help to Buy ISA
  • Shared Ownership
  • Equity Loan
  • Mortgage Guarantee
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17
Q

Name the 4 key shifts in housing in recent history

A
  • 1970’s: Acquisition Mortgages
  • 1980’s: Non-acquisition finance
  • 2007: Financial Crisis
  • 2014: The financial Conduct Authority
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18
Q

Give 5 reasons why so many people are living at home for longer

A
  1. Prolonged educational careers
  2. Youth unemployment
  3. Debt levels
  4. Restricted access to welfare benefits
  5. Expensive private rented sector
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19
Q

What is a ‘mortgage’?

A

An interest in property created as a form of security for a loan or a payment of a debt and terminated on payment of the loan or debt

20
Q

Give 5 remedies available to the mortgagee?

A
  1. The right to sue on the contract
  2. The right to take possession
  3. The right of sale
  4. The right to appoint a receiver
  5. The right to foreclosure
21
Q

Name four things a court might take into consideration when a mortgagor falls into arrears with payments, even though it is generally a one strike approach

A
  1. How much of the mortgage term remains
  2. How much can mortgagor reasonably afford to pay
  3. Why has the mortgagor been unable to pay?
  4. How long are their difficulties likely to last for?
22
Q

What did the following cases establish in point of crisis proceedings in mortgages?

C&G v Norgan [1996]

LBI HF v Stanford [2015]

A

A ‘reasonable’ amount of time is the remaining period of the loan

Generally, one strike approach

23
Q

What two cases are example of anomalies in point of crisis in mortgage payment?

A

Ropaigealach v Barclays [2000] - Reposession without an order

Horsham Properties v Clark & Beech [2008] - No need to take possession in order to exercise the right to sale

24
Q

What case established relevant precedent regarding negative equity in point of crisis situations? What were these precedents?

A

Bristol and West v Bartlett [2003]

Contractual debt remains after repossession (6 years for interest 12 years for principal sum)

25
Q

When a mortgagee is exercising power of sale, what four things don’t they need to do?

A
  1. Wait until the property market improves
  2. Take into account persons other than the mortgagor e.g. beneficiaries
  3. Sell immediately
  4. preserve a business until the sale of the property has taken place
26
Q

For legal title, what formalities must be satisfied?

A

s2 LP(MP)A 1989
s52 LPA 1925
+ Registration

= Registered Proprietors

27
Q

For equitable title, what formalities must be satisfied?

What happens if they are not satisfied?

A

Express trust via express declaration
s53(1)(b) LPA 1925
Land Registry TR1 Form
= Joint Tenants OR Tenants in Common

  • Then presumption: ‘equity follows the law’
  • Or displace by either Express/Implied bargain constructive trusts
    = Joint tenants beneficially
28
Q

Describe the process of resisting possession when there are 2 registered proprietors

A

Act jointly, both are mortgagors (treated like sole mortgagor as liable jointly and severally)

Order of sale sought = s36 AJA 1970 + Norgan

29
Q

Describe the process if resisting possession when there are 2 registered proprietors (one “bad” borrower)

A

Act jointly, both are mortgagors (treated like sole mortgagor as liable jointly and severally)

Limited scope to set aside using misrepresentation of undue influence (but be careful)

30
Q

Describe the process of resisting possession when there is 1 registered proprietor

A

s55 Family Law Act 1996 “connected person” ex-spouse, ex-civil partner or ex-cohabitant)

Order of sale sought = s36 AJA 1970 + Norgan

31
Q

What is overreaching?

A

The process whereby a purchaser of property takes free from any interests or powers, which attach instead to the proceeds of the sale

32
Q

What are the 6 requirements for Overreaching?

A
  1. There must be a “purchase” (includes mortgage or charge)
  2. There must be a conveyance of rights to the purchaser
  3. The interest must be capable of being overreached
  4. Money must be paid over to two trustees or a trust corporation
  5. Money doesn’t need to be paid over at the same time as conveyance
  6. Can still occur where purchaser has notice of the equitable rights
33
Q

How has Overreaching changed from 1925 to 1970’s-present

A

Shift from landlord to owner-occupier

- Overreaching now results in loss of family home

34
Q

What are the requirements for an overriding interests?

A

‘At the time of disposition’

+

‘Actual Occupation’

=

Overriding

(Sch 3 para 2 LRA 2002)

35
Q

What did the case of Boland [1980] establish?

A
  • Overreaching will only apply where the purchase money is paid over to two trustees ( s27(2) LPA 1925 )
  • The rule does not depend on good faith or on the circumstances of the transfer
36
Q

While Boland is an important case, what does it not bale us to say?

A
  • Doesn’t enable us to say occupation gives someone a beneficial interest (express/constructive trust rules apply)
  • Doesn’t enable us to say tat occupation is secure (s14 & 15 ToLATA 1996)
  • Doesn’t enable us to say that a mortgagor can argue an overriding interest (s36 AJA 1970, misrep or undue influence)
37
Q

Describe the process of repossession

A
  1. Possession order sought by mortgage
  2. B establishes that they have a beneficial interest under a constructive trust
  3. B establishes that they were in actual occupation at the time of the disposition, giving them an overriding interest
  4. But this doesn’t render them immovable! (s14 & 15 ToLATA 1996)
38
Q

In what ways has there been a retreat from Boland?

A
  1. Conveyancers - more careful enquiry as to the fact of occupation
  2. Legislation - from s70 LRA 1925 to Sch 3 para 2 LRA 2002
  3. Courts - JOINT TITLE HOLDERS: in Flegg [1988] - Boland only applies where there’s a single legal title holder, disposition by two trustees, overreaching will take place even if the beneficiaries are in actual occupation
    IMPLIED CONSENT - Henning [1985], Mendelsohn [1985] - there’ll be implied consent where the beneficiary knows about the loan and benefits from it
39
Q

What did the case of Hypo-mortgage v Robinson [1996] establish?

A

That a minor cannot be in actual occupation of a property, “they are as shadows of occupation of their parent”

40
Q

Briefly describe the facts of the case of Abbey National v Cann [1990]

A

Mr Cann for a loan over a leasehold house he proposed to buy, stating it was for his sole occupation even though he intended to share property with his mother

Completion took place and Mr Cann was registered as the sole proprietor - It was a question of whether Mrs Cann in actual occupation at the time of the disposition

41
Q

What is ‘sale and leaseback’?

A
  • Form of equity release
  • Alternative to repossession?
  • Sell for less than the market price
  • Risks: Eviction, rent increases etc
42
Q

Now sale and leaseback mortgages are regulated, what has changed?

A
  • Firms can’t post promotional leaflets through letter boxes
  • Firms must check homeowner can afford to enter agreement
  • Firms must give a fixed term tenancy of at leats 5 years
  • Firms must arrange an independant valuation
  • Firms must give a 14 day cooling off period
43
Q

Explain the legal issue in Scott v Southern Pacific Mortgages [2014]

A
  • The Cann case established that completion and the grant of a mortgage are indivisible transactions
  • If Mrs Scott obtained property rights only on COMPLETION of sale, her rights would NOT BIND the mortgagee
  • Scott thus sought to distinguish Cann, arguing her property rights arose from moment of contract for sale
  • So the question: Can a purchaser grant property rights between contract and completion?
44
Q

What was the decision in the case of Scott v Southern Pacific Mortgages [2014]?

A

The question was: Can a purchase grant property rights between contract and completion?

if property rights CAN be granted, does the contract remain SEPARATE from completion? NO.

If the contract was treated as indivisible from depletion, then even if property rights were capable of being granted, they would be unable to constitute an overriding interest!

45
Q

What did the case of Lloyds Bank plc v Carrick [1996] establish?

A

From the date of exchange of contracts for the sale of land, the seller holds on constrictive trust for the buyer

46
Q

What did the case of Gordon Hill Trust Ltd v Segall [1941] establish?

A

A contract of sale was sufficient to enable the purchaser to describe themselves as the ‘owner’ in a contract to sell the property on prior to completion

47
Q

What did the case of Mortgage Express v Lambert [2016] establish?

A

Overriding interests cannot affect the VALIDITY of the disposition [s26 LRA 2002]

Ms Lambert may have had a right, and she may have been in actual occupation, but s26 LRA 2002!

Land Law (6 decks)

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