Ownership

Question 1

what is a profit

Answer 1

a right to go on someone else’s land and remove something which exists naturally

Question 2

what is an estate contract

Answer 2

an equitable interest - what a buyer has between exchange and completion

Question 3

what is a puisne mortgage

Answer 3

a legal mortgage over unregistered land which is not protected by the deposit of title deeds.

Question 4

what are corporeal hereditaments

Answer 4

physical characteristics of land capable of being inherited eg trees

Question 5

what are incorporeal hereditaments

Answer 5

intangible property rights capable of being inherited eg easement

Question 6

2 types of rights in land

Answer 6

estate - right to enjoy, possess, control, dispose of it and receive any income produced from it
interest - a right against land owned by another person eg right of way
both can be legal or equitable

Question 7

what is an estate in land and is it legal or equitable

Answer 7

right to enjoy, possess, control, dispose of it and receive any income produced from it
can be both legal or equitable

Question 8

what is an interest is land and is it legal or equitable

Answer 8

a right against land owned by another person eg right of way
can be both legal or equitable

Question 9

what type of rights are capable of being legal

Answer 9

must be in either s1(1) and S1(2) - freehold or leasehold
easements, profits and rent charges can also be legal is forever or for a defined period of time but not if they are for an uncertain period of time.

Question 10

do both equitable and legal rights need to meet formalities to be legal or equitable

Answer 10

yes

Question 11

what is a rent charge

Answer 11

a right to receive periodic payment charged on land

Question 12

which property rights can be equitable

Answer 12

all of them if they meet the formalities

Question 13

what is a flying freehold

Answer 13

building that is contained in the land but doesn’t touch the soil because building is divided vertically or horizontally

Question 14

what is a home right

Answer 14

a statutory right of a non-owning spouse or CP if home is or is intended to be the matrimonial home

Question 15

does a home right create an interest in land

Answer 15

no it does not create an interest in land

Question 16

what is the test to determine if an item is a fixture or a chattel

Answer 16

degree of annexation
can it be removed without causing significant damage to the land
possible for it to change over time

Question 17

what is a fee simple absolute in possession

Answer 17

freehold

Question 18

what is a term of years absolute

Answer 18

leasehold

Question 19

what is a commonhold

Answer 19

gives a freehold in the house of flat with the communal areas managed by a commonhold association run by commonhold owners

Question 20

what is a license

Answer 20

a personal right. Doesn’t create an interest in land so it only binds those parties and not successors in title. can authorise anything and can be revoked at any time

Question 21

requirements of a deed

Answer 21

written, clearly a deed, signed, witnessed by one person and delivered

Question 22

what document is required to create or transfer a legal estate or interest in land

Answer 22

a deed

Question 23

what type of legal estate/interest in land can be created and transferred without a deed

Answer 23

parol lease

Question 24

requirements to create a parol lease

Answer 24

for 3 years or less (including periodic lease where period is for 3 years or less)
lease must take effect in possession. this means T has immediate right to possess and enjoy land
T must pay market rent
L cannot charge a fine or premium. this is a one off capital sum instead of or in addition to rent

Question 25

formalities required for equity to recognise an arragement

Answer 25

Doctrine in Walsh v Lonsdale
contract
in writing
all terms in one doc
signed by or on behalf of all parties 
clean hands

Question 26

exception to doctrine in walsh v lonsdale

Answer 26

implied trusts (don’t need any formalities or writing for equity to recognise them)

Question 27

what are the 2 forms of joint ownership

Answer 27

joint tenancy and tenancy in common

Question 28

can a joint tenancy be severed and created into a tenant in common

Answer 28

yes in equity but legal estate must be joint tenancy

Question 29

tests to determine if it is a joint tenancy or a tenancy in common

Answer 29

possession, interest, time, title
express declaration in deed
severance words indicating distinct shares in deed
equity presumes a tenancy in common (equity presumes a JT unless acquired for business or unequal financial contributions to purchase price or post-acquisition money management)

Question 30

what are the possession, interest, time, title test

Answer 30

if one is missing then it is a tenancy in common. if all 4 are present it might be either JT or TiC.
possession - all can possession whole land
interest- all have identical rights
time - gained interests at same time
title - gained interest from same doc

Question 31

can a joint tenancy be severed to create a tenancy in common

Answer 31

yes but only in equity if formal notice is given or informal act

Question 32

can a joint tenancy be severed in the future

Answer 32

no it must be an immediate intention to sever, not a future intention

Question 33

can a joint tenancy be severed after death of co-owner in their will

Answer 33

no must be during their life

Question 34

does a co-owner need consent of the other co-owners to sever a joint tenancy

Answer 34

no - unilateral

Question 35

requirements of formal notice to sever a joint tenancy

Answer 35

notice must be received by all other joint owners or deemed to be received
deliver by post or by hand
if sent by registered post deemed delivered if not returned undelivered
if sent by normal post deemed delivered if left at last known address

Question 36

methods of informal severance of joint tenancy

Answer 36

act operating on share (disposal, writing, signed)
mutual agreement (valuable consideration, can be oral, no need to carry though actual performance)
course of dealing (over significant time)
bankruptcy
homicide (one joint owner kills another)
post-acquisition money management

Question 37

if more than 2 joint tenant and one severs their share, how do the others then hold their remaining interest

Answer 37

the owner who severs their share becomes TiC

the rest continue to hold the remaining interest as joint tenants

Question 38

what is co-ownership

Answer 38

where more than one person owns the land at the same time

Question 39

how are trusts of land created when there is concurrent sharing of it

Answer 39

TOLATA creates a trust of land when there is concurrent sharing

Question 40

situations in which a trust can arise

Answer 40

express trust
implied trust
co-ownership

Question 41

are trustees joint tenants or TiC

Answer 41

joint tenants because the legal estate must be held as joint tenants

Question 42

can someone under 18 receive land or be a trustee

Answer 42

no - if land is conveyed to an adult and a child the adult holds it on trust for the child

Question 43

when must a trustee consult a B

Answer 43

where B is 18 or over and has immediate interest in land (aka interest in possession)

Question 44

How many trustees must execute the deed to transfer a legal estate

Answer 44

All of them

Question 45

What to do if trustees cannot agree on whether or not to sell the land

Answer 45

Any T or anyone with an interest can apply to the court for an order under TOLATA

Question 46

What orders can the court make under s14 of TOLATA

Answer 46

Refuse the sale
Order the sale
Refuse the sale but make order regulating right to occupy property
Partition of co-owned property

Question 47

What will the court consider when making an order under TOLATA

Answer 47

Intention of person who first made the trust
Purpose for which property is held.
Welfare of minor
Secured creditors (before minor or Ill co-owner)
Interests of beneficiaries