Property Flashcards
Property: When building regulations can take enforcement action
12 months; but can get injunction to require compliance anytime
Property: How long does planning permission have to bring enforcement action?
4 years
Property: Elements of right by prescription
Easement used without permission for more than 20 years
Property: Can second mortgage lender start foreclosure proceedings?
Yes even if first lender is still being paid. But needs to pay out the first lender.
Property: Corporeal vs incorporeal hereditaments
corporeal = tangible
incorporeal = intangible (rights, easements)
Property: Choses in action vs choses in possession
choses in action = debts, patents
choses in possession = physical, moveable things
Property: Who owns land, airspace, things in the ground, wild animals, and running water?
The Crown owns land and wild animals. Airspace means ordinary usage of airspace. Things in the ground and running water is based on statute.
Property: Test for fixture versus fitting
Whether it is super attached to the ground and if intent was to permanently raise property value (like a statute in the garden)
Property: List of legal estates and list of legal interests
Legal Estates: freehold & leasehold
Legal interests: MERRP (mortgage, easements, rentcharges, right of entry, profit a prendre)
Property: Profit a prendre in gross vs appurtenent
in gross = not tied to an adjacent land; can be registered by itself and bought and sold
appurtenant = tied to adjacent land
Property: Root of title
Covers the entire estate and at least 15 years old
Property: Equitable interests
- mortgages that aren’t contractually complete but nevertheless should be given effect
- restrictive covenants
- positive covenants
- estate contracts (when you sign the contract for sale but haven’t completed yet)
Property: You are buying property but have no notice of a mortgage… are you bound? What about for an equitable mortgage or puisne mortgage?
For legal mortgage (and other legal interests), you are bound even without notice.
For equitable mortgage (and other equitable interests), you are not bound unless you have notice
Property: C(i) land charge
Puisne mortgage
Property: C(iv) land charge
estate contract
Property: D(ii) land charge
restrictive covenant
Property: D(iii) land charge
equitable easement
Property: Class F land charge
Used to protect non-owning spouse’s statutory right of occupation of the marital home
Property: You are gifted a piece of land but you didn’t have notice of a restriction on the land, are you bound?
Yes, because to take a piece of land free of an equitable interest you need to be a bonafide buyer for value (not gift) of the legal estate without notice.
Property: You are buying unregistered land and will need to register ownership, but who can “override” this first registration and keep the property (they are capable of binding a buyer even though they do not appear on the register of title)?
- lease of 7 years or less
- easements from implied grant or reservation or by prescription
- an interest belonging to a person actually occupying the land (for example if that person is a beneficial owner)
Property: Time period for adverse possession of registered and unregistered land
10 years (registered) vs 12 years (unregistered)
Property: Events that trigger registration of unregistered land
- sale or gift of freehold title
- an assent for a PR
- lease for over 7 years
- sale of a sub-lease or assignment of lease with over 7 years left
- grant of a first legal mortgage
Property: When must land be registered?
Within 2 months of the triggering event
Property: What happens if land is not registered when it should be?
The transfer becomes automatically void and the legal estate does not pass to the buyer (remains with seller)
Property: I have a Register of Title, where can I find the following:
1. name of owner
2. freehold/leasehold
3. restrictive covenant
4. benefit of any right of way
5. whether title is absolute or qualified
- Proprietorship
- Property
- Charges
- Property
- Proprietorship
Property: Let’s say the beneficial title is held as joint tenancy, can one joint tenant decide to terminate the joint tenancy and treat it as tenancy in common?
Pretty much. Joint tenancy transforms into tenancy in common upon written notice, by selling the partial interest, mutual agreement, bankruptcy, etc.
Property: You’re buying a property held by Y, but their friend Z provided all the money for the property and filed a Form A restriction on the property. How to buy property free of B’s interest?
You “overreach” Z’s interest by having someone appoint a second trustee and then paying the purchase price to both Y and the second trustee.
Property: I have a 25 year lease, can the landlord increase the rent in year 5?
No, unless it’s written in the lease that landlord can increase price
Property: Can I sign a lease that starts 21 years in the future?
No, 21 years is the limit.
Property: Lease starts when pigs fly? Is that valid start date?
No, if you can’t tell when lease starts or ends, then it’s void for uncertainty
Property: I call Barbie and we agree over the phone that I can move into the Barbie dreamhouse for 3 years at market rent. Is this valid? What if I want to assign my lease later?
Yes, if I actually move in. Only valid for leases of 3 years or less and at market rate.
Lease can be assigned, but then that needs to be by deed.
Property: I haven’t been paying rent, can landlord enter the premises and change the locks?
No, unless this right is written in the lease (forfeiture right).
BUT if it’s for an entirely commercial lease, landlord can go in, with 7 days notice, and take tenant’s goods and sell them.
Property: I haven’t been fixing the toilet that I promised I would. and it’s leaking everywhere, can landlord go in and fix the toilet?
Yes, if landlord provides notice and I will be liable for the landlord’s costs to fix the toilet.
Property: When does the bank have the right to sell the mortgagee’s house?
When the mortgage is by deed and borrower fails to redeem the mortgage (pay off capital in the first few months) and either:
1. interest payments are more than 2 months overdue
2. the bank requests payment of capital and 3 months have passed without payment; or
3. there is a breach of some other term of the mortgage.
Once that’s done, the right occurs automatically
Property: When is CGT due on a sale of property?
30 days of completion
Property: Energy Performance Certificate is valid for:
10 years
Property: All properties need a valid Energy Performance Certificate except:
Listed Buildings
Property: You’re a seller and you have the following issues in the house, do you need to disclose to the buyer?
- obviously leaky pipes
- cracks in the foundation that were repaired at some point
- No, caveat emptor, buyer beware
- Maybe, if they’re concerning
Property: What goes in the particulars of sale in the Standard Conditions of Sale?
date, name of parties, details of property, any title guarantee, completion date, purchase price, etc.
Property: I am selling my house and I want to use the buyer’s 10% deposit to buy another house to live in, can I? What if that other house is in Bermuda? What if I want to instead lease the second house and move into my vacation home?
First is allowed as a deposit for related purchases. Second is not allowed because it’s not in E&W. Third is not allowed b/c house needs to be residence.
Property: How should deposit be held?
As stakeholder. B/c if held as agent, then seller’s solicitor can give the deposit to seller immediately after exchange.
Property: Difference between full title and limited title guarantee
Full title = buyer is free of encumbrances or anything not listed; seller pays to perfect title
Limited title = seller says they didn’t create any charges or grant rights that aren’t disclosed already
Property: What are some standard conditions in the Standard Conditions of Sale?
- VAT is included
- deposit is 10%; held as stakeholder
- completion is in 20 days
- full title guarantee
- buyer gives indemnity for covenants
- risk passes to buyer on exchange and seller doesn’t need to get insurance
Property: Pre-contract searches done in every case
- local land charges search (not to be confused with the land charges register search)
- water and drainage search
- environment search
- title searches
Property: Special searches
- search of the index map
- bankruptcy search (if mortgage)
- company search (if company)
- Common land/village green search (optional part of local land charges register)
- coal mining search
- chancel liability search (part of an ancient obligation to contribute to the upkeep of the alter of a church)
Property: What is the effect if a local authority excludes Article 4 Direction?
Landowners need to apply for planning authority for every change, even small changes like installing new windows or building a porch
Property: If outline permission is granted by the planning commission, what does the landowner have to do?
They have to apply for detailed permission on all reserved matters within 3 years of the outline permission.
Property: When must building start once outline or detailed permission has been granted?
For outline permission: 2 years
For detailed permission: 3 years
Property: Enforcement time limit from planning commission for unauthorized changes to buildings (building/demolishing)
4 years; except listed buildings have no limit
Property: Enforcement time limit from planning commission for change of use or other breach besides building/demolishing buildings
10 years; except listed buildings have no limit
Property: Building control enforcement time limit
12 months for enforcement action; but no time limit for injunction to bring changes up to code
Property: Who submits the clear Certificate of Title to the lender prior to the release of mortgage funds to the buyer?
The buyer’s solicitor
Property: What does perfecting the mortgage mean and who does it?
Registering the mortgage as a charge on the title and the buyer’s solicitor or the bank would do it
Property: Deadline for registering a mortgage
Same as registering the sale of land. 30 days for registered and 2 months for unregistered. Remember that any loans taken out by companies must be registered at companies house by 21 days.
Property: Pre-completion searches and length of priority period
Registered: Official Search with Priority; 30 days
Unregistered: full land charges search; 15 days.
Property: Methods of Completion
Post, person, agent
Compare this to methods of exchange: post, person, phone call
Property: Method of completion if using the real estate Protocol
Post
Property: Title passes when:
unregistered: at completion
registered: when registered
Property: Under the Standard Conditions of Sale, can a buyer still sue for breach of contract after completion?
Yes, Standard Conditions of Sale includes a “non-merger clause” so the deed does not merge with the contract.
Property: Deadline for Stamp Duty Land Tax, even if no tax is actually due
14 days of completion
Property: When should completion be registered with HMRC?
If unregistered: 2 months (but note that completion is done, although failing to register voids the transfer)
If registered: 30 days
Property: Is time of the essence if using Standard Conditions of Sale?
No, which means that a breach does not allow right to terminate and damages.
But you can file a notice to complete, which make time of the essence.
Property: Completion is delayed but there’s a tenant in the property, what are the options for damages for that delay?
You can only get interest if time is not of the essence. Interest is based on money owed (so not total price) and amount of delay. You can choose to get the rental income instead of other payment if there’s a tenant.
Property: If notice to complete is filed, what is the deadline to complete?
After 10 business days.
Property: Buyer fails to complete, can seller keep deposit?
Yes, even if they resell the property and get damages.
Property: Typically, for commercial leases above 6 months, landlords need just cause to evict, but how can they contract out of this?
- By giving tenant a health warning notice at least 14 days before lease is signed (this period can be waived by tenant only if there’s an independent solicitor confirming)
- tenant signs a declaration waiving; and
- lease includes all of this
Property: When S25 or S26 notice must be served:
Between 6-12 months before end of lease
Property: If S26 notice is served by tenant, how long does landlord have to respond?
2 months.
Property: If the landlord does not extend lease for these reasons, does the court have to go along with it and can tenant get compensation?
- tenant doesn’t repair (discretionary; no damages)
- tenant is always late to pay (discretionary; no damages)
- tenant otherwise substantially breaches lease (discretionary; no damages)
- landlord has another suitable property available (yes mandatory; no damages)
- tenant sublet part of lease and landlord needs the whole lease (discretionary; yes damages)
- landlord wants to demolish or remodel (mandatory; yes damages)
- landlord wants to move in (mandatory; yes damages)
Property: How much compensation is due to a commercial tenant who is being evicted pursuant to a S25 or S26 notice?
If tenant has been there for 14 years, then they get 2x the market rate of the rental
If less than 14 years, then just the market rate
Note that comp is only provided if landlord wants to demolish, remodel, move in or wants to lease the whole thing after tenant has sublet it
Property: If landlord and tenant agree to a new lease after a S25 or S26 notice, how long can the new lease term be?
No more than 15 years.
Property: Two tests for whether something is a fitting or fixture
Degree of annexation and Purpose of annexation
Property: Which will prevail - degree of annexation or purpose of annexation? For ex: a statute in a garden that can be removed
The purpose of annexation would prevail
Property: Elements of adverse possession
- exclusive
- actual physical possession
- without permission
Property: What is the difference between absolute leasehold title and good leasehold title?
Absolute means that HMLR has inspected all superior leasehold titles and the freehold title.
So absolute leasehold > good leasehold title.
Property: What can be registered under the Land Registration Act 2002?
- Estates (freehold and leasehold)
- rentcharges
- profits a prendre in gross
- franchises
Property: What is Section 14 and 15 of Trusts of Land & Appointment of Trustees Act 1996
It helps when co-owners can’t agree how or when to dispose of property.
Basically, it says that courts will look to the intent of the parties and all circumstances when determining who owns what percent of a property.
Property: Can a lease that was not executed by deed and doesn’t fall into the short-lease exception still be valid?
Yes, as an equitable lease so long as it is written and signed. It must also be registered as a C(iv) estate contract or notice on charges register so that successors to landlord’s interest have notice of this equitable charge.
Property: What is the optional search for commons/village greens called?
The commons registration search
Property: I grant an easement over my land for the life of my neighbor. Is that an equitable or legal easement?
Equitable easement. To be a legal easement, it needs to last as long as the legal interest (i.e., the length of the leasehold or forever for a freehold)
Property: requirements to create a legal interest
- made by deed
- lasts as long as the estate (forever for freehold or length of the leasehold)
- registered if made over registered land
- is a MERRP
if any of these fail, but there’s still a written and executed contract, then it’s an equitable easement
Property: Requirements for a deed
- intent to be a deed (must say deed somewhere)
- signed and witnessed
- delivered (i.e., dated)
Property: Requirements for an equitable interest
There needs to be an enforceable contract in writing (i.e., a written contract that is signed and contains all the terms agreed by the parties)
Property: Why is the distinction between legal and equitable rights important?
Equitable rights can only get equitable remedies (rescission, specific performance and injunction) and the rules of equity apply (clean hands, no delay, bonafide third party purchasers, etc.)
Property: What must be registered in order to be a valid transfer (separate from the trigger of first registration) in registered land?
- transfer of a freehold estate (whether by sale or gift)
- transfer of a registered lease (of any duration)
- grant out of a registered lease over 7 years
- grant of a legal easement
- grant of a legal mortgage
Property: What is the effecting of registering a transfer/grant in registered land?
If you register a transfer/grant that was given for VALUABLE CONSIDERATION, then that transfer/grant binds any 3rd party purchaser and takes priority over any interest (whether for consideration or not) that has not been registered or is not overriding, regardless of when that interest was created.
This means that any interest which has not been registered or is not overriding will not bind a third party purchaser.
Property: When would an interest belonging to a person actually occupying the land NOT be an overriding interest?
- When inquiries were made and the interest was not disclosed when reasonable to do so; OR
- Occupation would not have been obvious on reasonably careful inspection at completion AND the purchaser doesn’t know about the interest at completion
Property: Who is the covenantor and the covenantee in a restrictive covenant?
Covenantor = one being burdened; owns the servient land
Covenantee = one with benefit; owns the dominant land
Property: How is the benefit and burden passed at common law?
Benefit can pass at common law.
Burden can never pass at common law (except for the benefit with the burden rule).
This means original covenantor can be sued forever. That’s why they ask for indemnity for covenants.
Property: What is the one exception for when the burden can pass at common law?
Benefit with the burden rule. I.e., the benefit of using something comes with the burden of maintaining it, but note that benefit must be a choice and not strictly necessary
Property: Rules for when burden of covenant can pass to successors
- covenant must be restrictive (negative covenant)
- covenant must “touch and concern” the land (cannot be personal)
- the dominant land must still be occupied/owned by the covenantee or their successors in title (e.g., covenant was made by freehold owner, and now it’s occupied by a leaseholder = NO)
- covenant must be intended to run with the land (no evidence to the contrary = runs with the land)
- Notice - covenant must be registered in order to be binding on a purchaser for value
Property: Rules for when benefit of covenant can pass to successors
- covenant must “touch and concern” the land
- benefit was intended to run with the land (often there’s an annexation clause in the purchase deed, can also be done by express assignment, or new housing contract that bind all residents)
Property: If a head lease is ended by expiry, notice to quit, or forfeiture, does any sublease existing under it come to an end?
Yes
