Property Law

Question 1

National Provincial Bank v Ainsworth [1965]

Answer 1

Not good law but Lord Wilberforce set out a ‘classic statement’ of distinction in which property must be…
1. definable
2. identifiable by third parties
3. capable of assumption by third parties
4. have some degree of permanence or stability

Question 2

Pierson v Post 3 Cai (1805)

Answer 2

US Case
Possession of a fox - the animal must be captured or killed to constitute possession - finding and chasing a wild animal does not give a personal possession

Question 3

Seymane’s case 1604

Answer 3

Views of property (Blakckstonian view)
‘the house of everyone is to him as his castle and fortress’ - property = liberty and security

Question 4

Mew v Tristmere Ltd [2011]

Answer 4

Distinguishing between land and chattels - houseboats were considered to be chattels because they were originally capable of floating and not intended to be permanent

Question 5

Elitestone v Morris [1997]

Answer 5

Distinguishing between land and chattels - bungalow held to be real property as it could not be moved without completely dismantling it

Question 6

Chelsea Yacht and Boat Co v Pope [2000]

Answer 6

Distinguishing between land and chattels - houseboat held to be a chattel as it could be detached from bank and moved

Question 7

Hill v Tupper (1863)

Answer 7

Easement - the benefit of an easement must be for the land, it cannot benefit something else ,like a business if it does not benefit the land

Question 8

Armory v Delamirie (1722)

Answer 8

True ownership v possessory title
The ‘first in time’ possessor has a better title than anyone else except the true owner

Question 9

J A Pye (Oxford) Ltd v Graham [2002]

Answer 9

Limitations on ownership - a trespasser who occupies land over time, excluding the true owner, can gain title to the land over time if they can demonstrate
- factual possession (physical custody and control)
- intention to possess (intention to exercise custody and control)
As per Lord Browne - Wilkinson

Question 10

Colonial Bank v Whinney [1885]

Answer 10

“All personal things are either in possession or in action. The law knows no tertium quid between the two” - as per Fry LJ
Personal Property: Tangible (choses in possession)

Question 11

Torkington v Magee [1902]

Answer 11

Personal Property: Intangible
Chose in action is defined as ‘personal rights of property which can only be claimed or enforced by action, and not taking physical possession”
Claimed through legal or equitable action

Question 12

AA v Persons Unknown and Bitfinex [2019]

Answer 12

“I consider that crypto assets such as Bitcoin are property” - Bryan J’s judgment granted that digital assets have proprietary injunctions

Question 13

LPA 1925 s. 205 (1) (ix) definition of ‘land’:

Answer 13

‘land’ includes the land of any tenure, and mines and minerals, whether held apart from the surface, buildings or parts of buildings … an easement, right, privilege or benefit in, over, or derived from land

Question 14

Law of Property Act (LPA) 1925 s1 (1): legal estates in land

Answer 14

the only estates in land which are capable of subsisting or of being conveyed or created at law are -
a. an estate in fee simple absolute in possession (freehold)
b. a term of years absolute (leasehold)

Question 15

Law of Property Act (LPA) 1925, s1 (2): legal interests in land

Answer 15

The only interests or charges in or over land which are capable of subsisting or of being or created at law are -
a. an easement
b. a charge by way of legal mortgage

Question 16

Law of Property Act (LPA) 1925 s1 (3): equitable interests in land

Answer 16

All other estates, interests and charges in or over land take effect as equitable interests

Question 17

Land Registration Act (LRA) 2002, s2: registration provisions

Answer 17

The Act makes provision about the registration of title to-
a. unregistered legal estates which are interests of any of the following kind
- leaseholds
-freeholds
- profits, rent charges and franchises (not on module

Question 18

LRA 2002 s.4: first registration of title

Answer 18

s4 (1) - the requirement of registration applies on the occurrence of the set items
s4 (2) - qualifying legal estates include:
- a freehold estate in land
- a leasehold estate in land for a term for which, at the time of transfer, grant or creation, has more than seven years to run

Question 19

LRA 2002 s3: voluntary first registration

Answer 19

A person may apply to the registrar to be registered as the proprietor of an unregistered legal estate to which this section applies if—
a. the estate is vested in him, or
b. he is entitled to require the estate to be vested in him.

Question 20

LRA 2002, ss 23 - 24: owner’s powers

Answer 20

Owner’s powers consist of
a. power to make a disposition of any kind permitted by the general law
b. power to charge the estate at law with the payment of money
A person is entitled to exercise the owner’s powers if he is the registered proprietor or entitled to be registered

Question 21

LRA 2002, s27 (1): effect of failure to register

Answer 21

It does not operate at law until the relevant registration requirements are met

Question 22

LRA 2002, s27 (2): dispositions of already registered land

Answer 22

The following are dispositions which are required to be completed by registration
a. a transfer
b. where the registered estate is an estate in land, the grant of term of years is absolute
c. where the registered estate is a franchise or manor… (not on module)

Question 23

LRA 2002, ss 28- 30: priorities in registered land

Answer 23

s28 = the Basic Rule - an earlier interest takes priority
s29 = the Special Rule - special protection for a purchaser
s30 = charges

Question 24

LRA 2002 , ss 32- 33: notices

Answer 24

A notice protects the priority of a third-party interest in registered land against a ‘disposition for value.’

Question 25

LRA 2002, ss 40: restrictions on dealings

Answer 25

Register entry regulating how changes can be made to the register

Question 26

LRA 2002, s 58: conclusiveness of the Land Register

Answer 26

If on entry of a person in the register as the proprietor of a legal estate, the legal estate would not be otherwise vested in him, it shall be deemed to be vested in him as a result of the registration

Question 27

LRA 2002, Schedule 4: alteration of the register

Answer 27

Alteration and rectification of the Land Register References to rectification, about alteration of the register, are to alteration which— a. involves the correction of a mistake and b. prejudicially affects the title of a registered proprietor.

Question 28

LRA 2002, Schedule 4, para 1

Answer 28

Rectification of the Register It only applies to rather narrow circumstances: - the correction of a mistake - this prejudicially affects the title of a registered proprietor

Question 29

LRA 2002, Schedule 4, para 3(2)

Answer 29

Protection of Proprietor in Possession No order may be made without the proprietor's consent in relation to land in his possession unless: - the proprietor has by fraud or lack of proper care caused or contributed to the mistake - it would be unjust for any other reason for the alteration not to be made

Question 30

LRA 2002, Schedule 4, para 8

Answer 30

Effect on priorities in alteration and rectification: allows the court and Land Registrar, to 'change for the future the priority of any interest affecting the registered estate or charge concerned'

Question 31

Swift 1st Ltd v Chief Land Registrar [2015]

Answer 31

How is fraud dealt with in registered land? The registration as a proprietor gives the buyer a legal and equitable title The defrauded 'true owner' no longer has a proprietary right in the property - this protects dynamic security True owner can apply to rectify title: losing party (true owner) can apply to Land Registry for indemnity

Question 32

LRA 2002, Schedule 8 - indemnities

Answer 32

The reasons why a person is entitled to be indemnified by the register if he/ she suffers loss for any reason such as mistakes, failure by the registrar or rectification of the register Only available for rectification, not alterations

Question 33

LRA 2002, Schedule 8 para 1(1)(a)

Answer 33

Indemnity can be paid for: - decision to rectify - loss as a result of rectification

Question 34

LRA 2002, Schedule 8 para 1(1)(b)

Answer 34

Indemnity can be paid for: - decision not to rectify - loss suffered when a mistake has occurred but decision not to rectify the register

Question 35

LRA 2002, Schedule 8, para 5

Answer 35

There is no indemnity due to loss as a result of a person's own fraud or lack of proper care

Question 36

LRA 2002, Schedule 8 para 6

Answer 36

Amounts of indemnity to be paid para 6(a) - the decision to rectify - a value of the estate, interest or charge that is lost immediately before rectification para 6(b) - decision not to rectify - value of the estate, interest or charge at the date the mistake that caused the loss was made

Question 37

Re Chowood's Registered Land [1933]

Answer 37

Indemnity and overriding interests No indemnity is payable if the registered is altered to show an overriding interest The proprietor was always bound by the overriding interest even though not on the register

Question 38

Knights Construction v Roberto Mac [2011]

Answer 38

Mistaken registration of freehold interest: The SA mistakenly applied for first registration of a freehold interest in land that belonged to KC, and the SA later sold the land to RM No fraud and RM purchased land in good faith and for valuable consideration – KC applied for rectification Held: KC was entitled to rectification of RM’s registered title to exclude the disputed land. RM entitled to compensation from the Land Registry

Question 39

Gold Harp Properties Ltd v MacLeod [2014]

Answer 39

Effect on priorities on rectification Underhill LJ held that the priority of an original leasehold interest that has been mistakenly deleted from the register should be restored – even though this renewed leasehold interest was registered after Gold Harp’s leasehold interest, so should not have had priority

Question 40

LRA 2002, Schedule 3: overriding interests

Answer 40

Module focuses on paragraph 1 and 2 Paragraph 1 - a leasehold estate 'granted for a term not exceeding seven years' Paragraph 2 - an interest belonging to a person in actual occupation of the land

Question 41

What is an 'overriding interest?'

Answer 41

'overriding' means that the interest is enforceable, and therefore binding on a new purchaser of the land, despite not appearing on the Register

Question 42

LRA 2002, Schedule 3, paragraph 1: leasehold estates in land

Answer 42

Short leases as overriding interests - 'not exceeding seven years' - must be created by deed for a term of 3 years or less giving immediate possession at market rent (legal lease) - automatically overriding

Question 43

LRA 2002, Schedule 3, paragraph 2: an interest belonging to someone in actual occupation of the land

Answer 43

- interest must be proprietary (and not personal) - the interest must belong at the time of disposition to a person in actual occupation of the land

Question 44

Chokar v Chokar [1984]

Answer 44

Nature and state of property affects whether there is actual occupation House - there must be some degree of permanence and continuity, and if the person is absent, an intention to return

Question 45

Malory Enterprises Ltd v Cheshire Homes [2002]

Answer 45

Nature and state of property affects whether there is actual occupation Derelict land - signs, bordered windows, fence, padlocked gate etc all held as actual occupation

Question 46

Chaudhary v Yavus [2011]

Answer 46

Nature and state of property affects whether there is actual occupation Metal staircase in easement - not actual occupation

Question 47

Link Lending v Bustard [2010]

Answer 47

There are many factors in assessing actual occupation Mummery LJ - can include nature of the property, circumstances of the person, degree of permanence and continuity, intentions etc

Question 48

Thomas v Clydesdale Bank Plc [2010]

Answer 48

How safeguards work in practice Mr Justice Ramsey - "It is the visible signs of occupation which have to be obvious on inspection"

Question 49

Street v Mountford [1985]

Answer 49

Essentials of a lease - the tenant has exclusive possession and the right to occupy the premise and exclude all other including the landlord

Question 50

Lace v Chantler [1944]

Answer 50

Essentials of a lease - a lease is granted for a fixed term and not for an uncertain period (eg someone's lfie)

Question 51

ss. 52 (1) and 54 (2) Law of Property Act 1925

Answer 51

Essentials of a lease - a lease is granted with proper formalities - by deed unless fits the short lease exemption for leases of 3 years or less

Question 52

Re Ellenborough Park [1956]

Answer 52

The criteria for an easement 1. there must be a dominant tenement, which has the benefit of the easement, and a servient tenement, which has the burden of the easement 2. an easement must accommodate the dominant tenement 3. the dominant and servient owners must be different people 4. the right must be 'capable of forming the subject matter of a grant' - i.e. not something vague

Question 53

Rhone v Stephens [1994]

Answer 53

The doctrine of restrictive covenants in Tulk v Moxhay (1848) cannot apply to positive covenants too. A positive covenant is a contract Entrenches distinction between positive and negative covenants Burden of positive covenants cannot run with the land

Question 54

Tulk v Moxhay (1848)

Answer 54

Restrictive covenants - Lord Cottenham Restrictive covenants can 'run with the land in equity' Notice of covenants are required

Question 55

What is a covenant?

Answer 55

A promise made in a written deed

Question 56

What is a restrictive covenant?

Answer 56

A promise not to do something Capable of being a proprietary right that runs with the land Needs notice

Question 57

What is a positive covenant?

Answer 57

A promise to do something A personal right and only enforceable between parties to the deed - cannot run with the land

Question 58

What is tenure?

Answer 58

The notion of one person holding rights in land It is how a piece of land is held by the owner Eg. I own a house can be 'I have tenure'

Question 59

What is an easement?

Answer 59

A legal right of way A right over one piece of land for the benefit of another piece of land - closely associated with enjoyment of property

Question 60

What is a freehold estate?

Answer 60

Lasts indefinitely - closest thing to absolute ownership

Question 61

What is a leasehold estate?

Answer 61

Created by the freeholder of the land A 'lesser right' in the freeholder's land Own property for a set time

Question 62

LPA 1925, s52: creation by a deed

Answer 62

52 (1) obligation to use a deed: 1. All conveyances of land or of any interest therein are void to convey or create a legal estate unless made by a deed 2. This section does not apply to leases and tenancies

Question 63

LPA 1925: s, 87: effect of mortgage

Answer 63

'The mortgage shall have the same protection, powers and remedies' as if the mortgage had been created as a 3000-year lease, in other words, the same protections as if it were an estate in land

Question 64

LRA 2002, s23: owner's powers to create a legal mortgage

Answer 64

They have the power to make a disposition of any kind permitted by the general law in relation to an interest of the description, other than a mortgage by demise or sub-demise

Question 65

LRA 2002, s27 (3): registration of mortgages

Answer 65

In the case of a registered charge, the following are dispositions which are required to be completed by registration a. a transfer b. the grant of a sub- charge

Question 66

Milroy v Lord (1862)

Answer 66

Legal formalities for the creation and transfer of property rights A lifetime gift of a freehold interest in land - the donor retains no rights to the property and retains no obligations to the donee once the transfer of the property to B has been effected

Question 67

Wills Act 1837, as amended

Answer 67

Legal formalities for the creation and transfer of property rights Section 9 - 1. No will shall be valid unless a. It is in writing and signed by the testator, or by some other person in his presence and by his direction; and b. It appears that the testator intended by his signature to give effect to the will; and c. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and d. Each witness either - i. Attests and signs the will; or ii. Acknowledge his signature In the presence of a testator (but not necessarily in the presence of any other witness) But no form of attestation shall be necessary 'presence' includes presence by means of videoconference or other visual transmission

Question 68

Law of Property (Miscellaneous Provisions) Act 1989, s1: deed

Answer 68

Legal formalities for the creation and transfer of property rights A document must be applied by - making it clear on its face it's intended to be a deed - valid execution as a deed (signed/ attestation) - delivery as a deed

Question 69

Law of Property (Miscellaneous Provisions) Act 1989, s2 : Contracts for sale etc, of land to be made by signed writing

Answer 69

Land

Question 70

LPA 1925, s54 (1): Creation of interests in land by parol

Answer 70

Land

Question 71

LPA 1925, s52: Conveyances to be by deed

Answer 71

Land

Question 72

LPA 1925, s53: creation and transfer of equitable interests in land

Question 73

Bills of Exchange Act 1882: cheques

Answer 73

Intangible personal property Cheques must be endorsed

Question 74

LPA 1925, s136: debts

Answer 74

Intangible personal property Debts must be assigned in writing, and express notice in writing must also be given to the debtor

Question 75

Section 1 and Schedule 1 Stock Transfer Act 1963

Answer 75

Shares in private companies

Question 76

s113, s128A and ss770-773 Companies Act 2006 and Art 26 Model Articles

Answer 76

Shares in private companies: ‘The directors may refuse to register the transfer of a share, and if they do so, the instrument of transfer must be returned to the transferee with notice of refusal unless they suspect that the proposed transfer may be fraudulent'

Question 77

Law of Property (Miscellaneous Provisions) Act 1989, s1 deed

Answer 77

Tangible personal property A document must be applied by - Making it clear on its face its intended to be a deed eg, ‘Deed of Transfer’ - Valid execution as a deed (for individuals this means signed in the presence of a witness who attests the signature) - Delivery as a deed

Question 78

Glaister - Carlisle v Glaister- Carlisle, The Times, 22 February 1968

Answer 78

Intention to give in an informal transfer of title to tangible personal property A heated argument and one of couple handed over dog – there was not a settled intention to give It was a rash act, an intention to give cannot be ‘heat of the moment’

Question 79

Dewar v Dewar [1975]

Answer 79

Intention to give in an informal transfer of title to tangible personal property The mother intended to give her son a sum of money to buy a house. The son intended to treat the sum of money as a loan – the transaction was a gift because the son could not force his mother to take the money back

Question 80

Re Cole [1964]

Answer 80

Actual delivery in informal transfer of title to tangible personal property - Words of gift are insufficient to transfer property

Question 81

Lock v Heath (1892)

Answer 81

Symbolic delivery – effective symbolic delivery because the inventory and the singular chair were symbolic of everything she was entitled to on the list

Question 82

Thomas v Times Book Co Ltd [1966]

Answer 82

Constructive delivery – effective constructive delivery because Thomas had uttered ‘words of gift’ and had put the producer in a position to take delivery of the object of the gift

Question 83

Rawlinson v Mort (1905)

Answer 83

Actual delivery – words of gift were made, and hands were placed on the musical instrument and this was sufficient to be delivery – words alone were not enough – a complication