Property Law Second Term Flashcards
1
Q
What sections of the LT(C)A allow a tenant and landlord to be released from covenants?
A
S.5 (tenant) and s.6 and s.8 (landlord)
1
Q
What section of LRA shows a legal charge for value is taken free of any interest not overriding or registered?
A
S.30 LRA
1
Q
Wall v Collins
A
E is at least as long as the original lease if A obtains fee simple from leasehold
2
Q
When is forfeiture available after leasehold covenant breach?
A
Supposedly available for all
2
Q
Consumer Credit Act 1974 regulates what?
A
Some mortgages
2
Q
In what case did the court make it clear they would not overturn a century of orthodoxy and all the burden of positive covenants to run?
A
Rhone v Stephens
3
Q
What case confirmed the validity of periodic tenancies as a certain term?
A
Prudential
3
Q
What case made it clear that C’s rights are only to discharge D’s obligations in mortgages?
A
Bristol Airport v Powdrill
3
Q
What are the acquisition requirements for a charge by way of legal mortgage?
A
S.27(2)(f) LRA and s.52 LPA with s.1 LP(MP)A
3
Q
Samuel v Jarrah Timber
A
Provision in mortgage contract for purchase is void
3
Q
TSB v Camfield
A
If no proper advice given, despite solicitor’s certificate, mortgagee would be liable
3
Q
How can you abolish a covenant?
A
Through s.84 LPA
4
Q
Burgess v Rawnsley
A
Misunderstanding; mutual agreement
4
Q
Coatsworth v Johnson
A
Need specific performance for equitable lease
4
Q
Budd-Scott v Daniel
A
LC for quiet enjoyment always arises
4
Q
What is an action for damages available for in leasehold covenants?
A
Everything except rent
4
Q
Horsham Properties v Clark
A
Rejected possibility of unjustified interference with property rights through s.87(1) under Art. 1 Protocol 1
4
Q
In what case did Lord B-W highlight that C obtains rights ‘in order to enforce the discharge of D’s obligations’?
A
Bristol Airport v Powdrill
5
Q
why have certain attempts to use s.79 LPA failed for burden of negative FCs?
A
Burden does not run if the covenant is personal
6
Q
Why is foreclosure essentially obsolete?
A
Court order needed, and court will usually order sale under s.91 LPA
6
Q
What are mortgage terms subject to?
A
UTCCR: ‘plain and intelligible’, and if not then contra proferentum through Reg.7
6
Q
Why would the outcome of London County Council v Allen be different now?
A
Local authorities can enforce covenants without dominant land, granted by statute
7
Q
What judge in Stack preferred resulting trust?
A
Lord Neuberger
7
Q
What is the argument about s.79(1) LPA and positive FC burden?
A
Doesn’t exclude burden of positive covenants being annexed
8
What section of TLATA notes co-owners can't exclude each other?
S.13
8
Bruton v London and Quadrant
Nemo dat; 'contract of tenancy'
8
Errington v Errington & Woods
Mortgage payments (to uncle, who then died, beginning performance etc)
8
What is forfeiture controlled by?
Commonhold and Leasehold Reform Act 2002
8
What case shows a creditor has a basic right to possession?
Four Maid Ltd v Dudley Marshall
8
Who highlighted that Federated Homes' interpretation of s.78 LPA is not at odds with s.79?
Snape
9
Why was the intention in Harris v Goddard not immediate?
Applying for divorce so asking for court order etc.
9
What are the two requirements to prove CT for sole legal ownership?
Agreement/arrangement/understanding AND detrimental reliance by B
9
Yaxley v Gotts
Lease through PE
10
Antoniades v Villiers
Multiple documents are one if for the 'wrong reason': unity of title
11
London County Council v Allen on requirement 3 of burden negative FCs
Need land adjacent to ST such that enforcing will benefit DT
12
S.79(1) LPA
Burden of negative covenants deemed to run without contrary intention
13
Mortgage Corp v Shaire
Changed law; courts not constrained by presumption of sale (s.15 TLATA)
14
What are the two tenant covenants?
No waste and 'tenant-like manner'
14
What case shows a limitation of s.36 AJA?
Ropaigealach v Barclays Bank
15
What did Walker and Hale say in Stack about resulting trusts?
Not for family home as the law has moved on
16
Aspden v Elvy
Habitable work
17
How many JTs max can there be at law?
Four (s.34(2) LPA)
17
DNH Food v LB of Tower Hamlets
Denning tried to argue if B has a CL against A, he also has a CT straight away, and thus C is bound
17
Silven Properties v Royal BoS
No obligation to improve property for sale
18
Four Maid v Dudley Marshall
'Mortgagee may go into possession before the ink is dry' (Harman J)
20
In what case did Hale later say there is no presumption of equity follows the law?
Jones v Kernott
20
when is the only time a debtor can assert their equity of redemption against the mortgagee?
when they sell without power of sale (s.52 LRA only arises under s.101 LPA)
21
Who said imputed common intention should not be used for acquisition?
Wilson in Jones v Kernott
21
What are the three methods of transmitting the benefit of a covenant?
Assignment, annexation and building schemes
22
According to Street, what are the essential characteristics of a lease?
Exclusive possession of land for a term at a rent
22
Birmingham v Ross on LC2
Can't take away means of enjoying that which has been given
23
What does s.51 LRA do?
Once registered, a mortgage charge takes effect as a charge by deed by way of legal mortgage, regardless of if it was made by payment of money or by deed
24
What are the restrictions on action for arrears of rent?
6 years rent (s.17 limitation act 1980)
25
To ensure the benefit of a FC always transmits, what might you need and according to what case?
Chain of assignment, Re Pinewood Estates
27
Re Aldred
'Good view'
28
Quennell v Maltby
Remove tenants; can only seek possession 'bona fide and reasonably'
29
What are the three methods of transmitting the burden of a positive FC?
Contractual, estate rent charges or mutual benefit and burden
30
Who described 'family home' as 'domestic' context in Stack?
Hale
30
What two cases conflict on the appropriate steps for undue influence in regard to independent advice?
TSB v Camfield; Midland Bank v Kidwai
30
What does Elwood v Goodman say about mutual benefit and burden and protection?
No need to register them - no do not create an estate/interest
31
Santley v Wilde
Collateral advantages allowed to mortgage is reasonable and not a fetter on redemption
32
Mikeover v Brady
Separate duties to pay rent can remove unity of interest
32
What is the effect on the LPA of Report No.327
If imposed, would need to amend s.1 LPA to make land obligations (positive and negative burden and benefit FC) legal interests.
33
Winter Garden v Millennium Productions
Reasonable notice; B is not immediately a trespasser
33
What are the two privity principles in leasehold covenants?
Privity of contract and of estate
34
Clough Mill v Martin
Retention of title; not a security right as not a new right
35
Who described 'family home' as 'matrimonial or quasi-matrimonial' in Stack?
Walker
35
Distress and commercial rent arrears
Ancient feudal remedy
36
London Diocesan v Phithwa
Head lease
37
Cuckmere Brick v Mutual Finance
Can act in self-interest for sale but need to take obvious steps
39
In which case did Denning try to turn a contractual licence into an equitable property right?
Errington v Errington & Woods
40
Hill v Tupper
Canal; E must benefit DT
40
Who highlighted identifying land to be benefitted for the purposes of s.78 LPA can be problematic?
Howell
42
Who said Street can be explained through a doctrinal perspective?
if there is no certain term, A's property right is meaningless
44
How are proceeds applied after a power of sale?
To meet sale costs, then to discharge amount owed, then balance remaining is paid to other mortgages/borrower
46
Antoniades v Villiers
Couple; permitting others
47
What is the problem with an ambulatory trust?
Usually need an 'act' to sever; is this a new method of severance?
48
What case shows a 'type' of right that does not need to be registered, but still functions as a type of mortgage
Retention of title in Clough Mill v Martin
49
Barrett v Morgan
If lease ends by surrender to owner of fee simple, easement survives
50
How can a trust be expressly created?
S.53(2) LPA
51
First National Security v Hegerty
Voluntary disposition of temporal alienation may still sever
51
What section of the LPA gives a definition of rent?
S.205(1)(xxvii)
52
What were the two problems pre-1996?
Continuing contractual liability and touch and concern
52
What are the requirements for an easement?
DT and ST both identifiable, which differ in ownership and occupation. The E must 'accommodate' the DT and right must be capable of forming the subject matter of a grant
53
Aslan v Murphy
Times in which they don't have EP
53
What if the servient land of the negative covenant is unregistered (for registration)?
Use a Class D(iii) Land Charge
54
Why is the 2nd requirement of mutual benefit and burden doubted?
In Halsall, no choice about sea wall
55
From what case do the three ways of quantification come?
Stack v Dowden
56
Ree v Lisle
Allow purchase of estate if wholly separate to mortgage
57
Reid v Bickerstaff on building schemes and benefit of FCs
need a defined area of land and an intention that covenants are for the common benefit of all
59
What section of the LPA notes a lease is a legal estate?
S.1
60
What statute applies to taking possession?
Administration of Justice Act 1970, s.36
60
What case shows s.36 AJA applies even if dwelling is not D's home and only part of the property?
BoS v Miller
61
What does s.36 AJA allow?
Court to adjourn proceedings or grant a suspended possession order
62
CLBS v Flegg
Legal charge for value overreaches if capital sum paid to 2 trustees
63
Verrall v Great Yarmouth
Court will protect licence against breach by A even if B has not begun to use land
64
Who gave the essential characteristics of a lease?
Lord Templeman in Street v Mountford
64
What are the three refinements on Street?
Licence if there are 2 or more occupiers without 4 unities, more power for public sector than private and 'contractual lease' through Bruton and Kay
64
S.99 LPA powers of mortgagor
Lease property
65
Saunders v Vautier
Sole beneficiary of full age and capacity can insist on legal title
65
Why was there no PE outcome in Coombes?
No detriment
65
Palk v Mortgage Services on s.91 order of sale
Maybe even if mortgagee seeks possession and proceeds will not pay off mortgage
66
What case shows that knowledge of impropriety under s.104 LPA does not include selling at a mere undervalue?
Corbett v Halifax BS
66
Why are there registration issues if DT is dominant land?
requires manually moving E on leasehold to freehold with a time limit
67
What happens if FCA sourcebook rules are not followed for mortgages?
Revoke licence
69
White v White
Welfare of minors considered under s.15 TLATA
69
What does the case of Eves v Eves suggest about actual common intention?
May apply even when promise was not genuine
69
Re Dolphins Conveyance (building schemes, benefit of FCs)
Only need an understanding of wider community interest
70
How does one create an equitable lease?
Either failed to register or contract without deed
71
Newton Abbot v Williamson
Devonia ironmongers
72
London County Council v Allen
Roadway
73
Southwark LBC v Mills on LC 1
Lawful possession will not be interfered with, not condition of premises
74
Ropaigealach v Barclays Bank
Vacant possession so no court order needed and no s.36
75
Re North East Property Buyers' Litigation
Argue right arose before any others when used to purchase a house (s.28 LRA)
76
First penthouse v Channel Hotels
Need intent to be annexed to tenancy or reversion for term to bind successor
76
How could a vendor use LRA to ensure burden of positive covenants passes upon salle?
S.40 LRA restriction to require purchaser to enter into a positive covenant as part of the purchase
77
What section shows the application of proceeds from a sale with a mortgage?
S.105
79
K/S Victoria v House of Fraser
Can create chain of indemnity through AGA
79
Multiservice Bookbinding v Marden, Lord B-W
'shock the conscience of the court'
80
Polo Woods v Shalton-Agar
Easement, to 'accomodate', does not have to be needed, just connected and with utility
81
What is required for registered land with an equitable lease?
Notice to protect the lease
82
What section gives implied powers into a mortgage made by deed?
S.101 LPA
84
What does the case of Aspen v Elvy suggest about inferring an agreement as to CT for sole legal ownership?
Not limited to purchase price contributions as suggested by Bridge in Rosset
85
How can a charge by way of legal mortgage be registered?
S.23 and s.51 LRA
86
In what case was there suggested to be such a thing as an 'ambulatory trust'?
Hale, Stack
87
Who in Oxley v Hiscock said there is overlap between CT and PE?
Lord Bridge
88
Jaggard v Sawyer on burden relating to land
Using land as a garden
90
What is the legal maxim which bases all mortgage security?
'Once a mortgage, always a mortgage'
92
Why does the decision in Berrisford not overrule Prudential?
Uncertain term still void for companies
92
Why is there no freehold title in flats?
Burden of positive FC can't be implied further than original owner
93
Who showed there is a reluctance to develop new easements?
Phipps v Pears
94
What section shows mortgagee has a basic right to possession?
s.87 LRA
94
How can a positive covenant be protected?
Entry of notice (s.32 and s.33 LRA)
95
What case shows how s.36 AJA may never come to be considered in an order for possession?
Ropaigealach v Barclays Bank
96
'No clogs or fetters' on EoR
Jones v Morgans
97
In what case did Denning creatively impose a contractual licence?
Tanner v Tanner
99
Swift 1st v Colin
Power under s.101 with a deed but no registration
101
What does the CCA 1974 allow courts to do?
grant a time order to extend lender's enforcement of right to possession and amend/vary mortgage terms
102
What section of the LPA, before LRA, gave two ways to make a legal mortgage?
S.85
103
What are the two ways a covenant can be implied into a lease?
Implied in fact (Moorcock, Shirlaw, A-G of Belize) or in law as a feature of all (Shell v Lostock; Liverpool CC)
103
Silven Properties v RBC
Self-interest, even if conflicts with mortgagor, for appointment of a receiver
105
Provincial bank v Ainsworth
Personal right; not equitable interest
106
Why did the four individuals in AGS v Vaughan not have a lease?
No exclusive possession nor joint lease
107
What section of the LT(C)A ensures anti-avoidance procedures do not work?
S.25
109
If TO wants to enforce obligation against TA4, what procedures and rights come from it?
Problem notice in s.17 and allow overriding lease under s.18
110
Tulk v Moxhay
Burden can transmit to successors of an ST, Leicester square
111
What were the two legal mortgages prior to LRA?
Long lease and charge by deed
112
Dawson v Dyer
Individual obligation of LC1 without precondition
113
What section of LPA protects the purchaser even when creditor has breached equitable duties?
S.104
115
What three circumstances were given in Facchini v Bryson for when exclusive possession would not equal a lease?
No intention to create one, no power to grant a tenancy and agreement to occupy arises from other legal relationship
117
Sole beneficiary of full age and capacity can insist on legal title
Saunders v Vautier
118
What else is needed for equitable lease under s.2 other than Chatsworth v Johnson --\> SP?
Damages inadequate, clean hands and valuable consideration by person enforcing it
119
Injunction and specific performance for leasehold covenants?
Against certain breaches, and SP only exceptionally
119
Re Ellenborough on certain
'jus spatiendi'
121
BoS v Miller
S.36 AJA applies even if the dwelling is not D's home and only part of the property
122
Machester CC v Pinnock
Personal circumstances increasing effect of eviction may be considered exceptionally
124
What part of LPA gives rules of a notice?
S.196
126
What section of TLATA states there can only be a JT at law?
S.36(2)
126
What are the powers of a mortgagor?
Redemption, lease property, claim possession and apply for an order of sale
128
What case shows a receiver can act in self-interest even if this conflicts with the mortgagor?
Silven Properties v RBC
129
Westminster CC v Basson
Public duty and statutory housing
131
Evidence of detriment gives presumption of reliance for CT of sole legal ownership
Greasley v Cooke
133
Why did McFarlane, Nield and Hopkins criticise Berrisford?
CL rule creates a terminable life estate no longer legal under LPA and simpler just to remove rule
134
In what report did the Law Com propose the introduction of 'land obligations' instead of positive/negative covenants
No.327
136
Halsall v Brizell
Estate shared facilities
137
What does s.3 HRA require of s.87(1) LRA basic right to possession?
Interpreted in a human rights compatible manner
139
What is the problem with Hale saying we can impute intention for acquisition?
Allows CT to arise without any agreement at all
140
How were CT and PE distinguished in Rosset?
CT requires discussion before purchase
142
What case shows that s.36 may occasionally consider personal circumstances increasing effect of eviction?
Manchester CC v Pinnock
143
Fitzrikston LLP v Panayi
Reasonable market rent for s.54(2) LPA exception
144
What was the breach of contract found in King v David Allan?
Disabled himself from giving effect to the licence
145
Laskar v Laskar
Daughter, mother, investment
147
Since when and what case has there been a rapid development of family homes trusts?
Stack v Dowden, 2007
148
Who is an example of someone who thought recreation could not 'accommodate' the DT?
Theobald "The Law of Land"
149
Why is a licence not a property right?
No covered in s.1 or s.4 LPA
150
What is the way mortgages are usually adopted?
Charge by way of legal mortgage through s.23 and s.51 LRA
151
Barton v Camden
New periodic tenancy if JT stays on and L accepts rent
152
If a lease is over 7 years, what else is needed in addition to a deed?
Registration under s.27(2) for registered land or s.4(1) for unregistered
153
What Law Com report suggested abolition of foreclosure for land?
No. 204
154
Telephone shares; right is for security, so can't insist on it even if delayed
Cukurova Finance v Alfa Telecom
156
What would have been the outcome if Stack had applied in Laskar?
Presumption would have been rebutted of equitable following legal interests
157
Federated Homes v Mill Lodge on s.78(1) LPA
Annexes all positive and negative benefits of FC
158
Where are AGAs covered under LT(C)A?
S.16
159
Greasley v Cooke
Evidence of detriment gives presumption of reliance
160
Newton Abbot v Wiliamson on requirement 1 of burden of negative FCs
Not use premises as ironmongers
161
When will courts not enforce a contractual licence and A's duty not to exclude B?
When inappropriate (arguing), so damages
162
How can a creditor appoint a receiver?
Express power in agreement or through s.101 LPA
164
What is required for an action for damages in leasehold covenants if the lease if for more than 7 years with at last 3 left?
A notice (Leasehold Property (Repairs) Act 1938)
166
Smith v Marrable
Furnished premises must be fit for habitations
167
What Report of the LC recommended the obligation not to commit waste be replaced by implied covenant to 'take proper care'?
Report no.238
168
Why was an injunction not given in Jaggard?
Too oppressive
169
Jones v Morgans
'No clogs or fetters' on EoR
170
Midland Bank v Kidwai
No liability for undue influence if C ignored advice
172
What section of the LPA allows a mortgage of land to be made by mortgage or long lease?
S.85(1) and s.87
173
What were the exceptional circumstances Templeman gave in Street when exclusive possession would not equal a lease?
No intention to create legal relations (e.g. family: Jones v Padavatton, Danckwerts LJ) or employment contract
174
Kay v London Borough of Lambeth (Scott)
'Non-estate tenancy' of Bruton
176
Anneveld v Robinson
Secured creditors' interests: large mortgage. S.15 TLATA
177
Who went even further in Oxley and said 'no difference in outcome' between CT and PE?
Chadwick LJ
177
What case shows a power of sale and good faith means to discharge the debt?
Downsview Nominees v First City Corp
179
BHP Petroleum v Chesterfield
Core term can be expressed to be personal
180
Newton Abbot v Williamson on requirement 3 burden negative GC
Upjohn thought no compete clause benefits owner and land - need to affect 'either the value... or the method of its occupation'
182
Laskar v Laskar on family home
Stack has no application to property for investment
183
What did Hale say obiter in Stack?
Express/inferred/imputed applied to both quantification and acquisition
185
Rodway v Landy
Doctors; surgery
186
Why was it decided there was a CT for widow in Binions v Evans?
Purchaser took the land subject to her right; lower price etc, so gained new property right against purchaser
187
Where do the requirements for an easement come from?
Lord Evershed MR in Re Ellenborough Park
188
What is a possible contractual solution to the timing issue for benefits of FCs in building schemes?
S.56(1) LPA (need a deed) and s.1 C(RoTP)A
190
What case suggests a temporary act on a tenants share may amount to severance?
First National Security v Hegerty
190
How can the benefit of an FC be annexed expressly?
Seller says at some point the benefit is to run with the land
191
Morrells Oxford v Oxford United requirement 2 burden negative FCs
'Rebuttable presumption' that covenants are intended to run
192
Collateral advantages allowed to mortgage is reasonable and not a fetter on redemption
Santley v Wilde
193
Tanner v Tanner
Twins; children
194
Berrisford v Mexfield
Housing cooperative
195
What is an equity of redemption?
Equitable property rights of value of land, less amount owed
197
Bostock v Bryant
Fluctuating utility bill too uncertain for rent
199
Wood v UK
ECtHR accepted s.87(1) is proportionate so no Art.1 or 8
200
Palk v Mortgage Services
sit on property; bank cannot act at mortgagor's expenses
201
Warren v Keen on TC1
'Little jobs... which a reasonable tenant would do'
203
Why did the government reject the TR1 form being compulsory?
Goes against their anti-regulatory agenda.
203
When is rent sometimes needed for a lease?
Statutory protection
204
Hammond and Fulham v Monk
Only one JT need give notice under a periodic tenancy
205
William Old International v Arya
No positive burden on ST owner (easements)
206
Bristol & West BS v Ellis
If there is only a small gap between what is owed and value of security, possession is likely to be given and application of future sale rejected (under s.36 AJA)
206
What was it suggested is not sufficiently certain to form the subject matter of a grant of E?
Re Ellenborough - no 'jus spatiendi'; Re Aldred - 'good view'
208
Good Harvest v Centaur
Obligation requiring existing guarantor to guarantee obligations of TA is void
209
What section of the LRA shows the two ways to make a legal mortgage of registered land?
S.23(1)
211
What section of the LPA gives that a perpetually renewable lease = 2000 year leasE?
Sch.14 s.145 LPA
212
What case showed that courts will only exceptionally require the creditor to permit the debtor to retain possession?
Cheltenham & Gloucester v Booker
213
Jones v Kernott on family home
No presumption of RT from unequal shares in deposit if romantic relationship
215
What is the remedy for covenants are personal contactual obligations?
Can be enforced at law OR equity (claim in damages)
216
What did Hale say instead in Jones about presumption of JT in law being JT in equity?
It will be presumed when there is an 'emotional and economical commitment to a joint enterprise'
217
What are the three Landlord covenants?
Quiet enjoyment, no derogation from grant and fitness for human habitation
218
How can the difficulties of freehold covenants be avoided?
s.16 Commonhold and Leasehold Reform Act 2002
219
From what case is the proportionality test that should be applied to s.87(1) LRA by virtue of s.3 HRA?
De Freitas v Permanent Secretary
220
Oxley v Hiscock
CT and PE
221
Wilkinson v Kerdene
Holiday cottage
222
Federated Home v Mill Lodge on requirement 1 of burden of negative FCs
Not build more than X houses
223
What leases automatically override without registration?
Under 7 years (Sch.3 Para 1 or Sch.1 Para 1)
224
Re King
Assignor used to lose right to sue for breach prior to assignment
225
What does Halsall v Brizell say about mutual benefit and burden?
You can receive the benefit if you take on the burden of the positive covenant
227
What two cases conflict on the nature of a lease/licence and rights of action?
Hunter v Canary Wharf; Manchester Airport v Hutton
228
What two radical reforms did the Law Com propose in "Trusts of Land", criticised by McFarlane?
Limit severance to statutory method and enable severance by will.
229
Who said Street can only be justified (on a term certain) through a utility perspective?
Hill
231
What case shows collateral advantages may be allowed to continue past redemption if they don't attach to the land?
Kregliner v New Patagonia Meat Co
232
Who said a 'chance was missed... to establish the 1995 Act as a self-contained scheme', and is another 'example of piecemeal intervention'?
Dixon
233
How did Wilkinson v Kerdene stretch requirement 1 of mutual benefit and burden?
stretched conditionality so you only need to receive part of the benefit to be liable for entire burden
235
Warren v Keen on TC2
'Tenant-like mannner'
236
What does Law Com No.204 suggest about taking possession?
Statute should recognise creditor can only take possession with a court order
237
Prudential Assurance v London Residuary
Road widening; void lease
238
What two judges in Stuck argued for a constructive trust for family homes?
Walker and hale
239
Binions v Evans
Constructive trust for widow
241
What case shows the normal law of frustration applies to leases?
National Carriers v Panalpina
242
Why was it decided in London Diocesan that the head leasor was not liable after assignment?
Created own exit route; s.25, 6 and 8 not meant to override any decided exit route
243
What is the problem with foreclosure?
Contracts basic rule that right is only to secure performance
244
What are the three requirements for the burden of a negative FC to run?
Relates to land, intended to run, dominant land capable of benefitting and negative covenant
246
In what case and by who were the two requirements to prove CT for sole legal ownership given?
Lloyds Bank v Rosset by Lord Bridge
248
What is an equitable right to redeem?
Right to pay after legal date of redemption
249
Thames mead Town v Allotey requirements for mutual benefit and burden
Benefit is conditional on performing burden and you have a choice about whether to accept
251
What section covers the court's discretion to order a sale for mortgages?
S.91 LPA
252
What two cases show the issue of a 'scintilla temporis' in priorities of a mortgage?
Abbey National v Cann; Re North East Property Buyers' Litigation
253
Abbey National v Cann
Unencumbered fee simple
254
What shows a reluctance to abandon touch and concern in First Penthouse?
Said expressed to be personal or by substance it is
256
What case gave the requirements for mutual benefit and burden?
Thames mead Town v Allotey
257
Downsview Nominees v First City Corp
Exercise power of sale in good faith (i.e. to discharge the debt)
258
What appears to diminish s.8 AJA somewhat?
'Reasonable period' in s.8(2) appears to show the courts having regard to the whole mortgage and whether D will pay everything owed by the end
259
What is an action for damages limited by in leasehold covenants?
Amount L's interest has been diminished
260
What is required for an equitable lease?
A contract for the purposes of s.2
262
What two cases show a bank must take reasonable care to achieve a reasonable price?
Silven Properties v RBS; Cuckmere Brick v Mutual Finance
263
What case shows powers under s.101 LPA arise even without registration?
Swift 1st v Colin
265
How are trusts implied?
Resulting or constructive
266
What did Dixon say of s.15 TLATA?
'Indications of a general approach' and is an 'aid to the exercise of discretion' in determining intention
267
Cres Nicholson Residential v McAllister
Deed must describe land so it would be easily ascertainable for s.78(1)
268
Who said that requiring a JT for a lease cannot be justified doctrinally?
Sparkes
269
Unencumbered fee simple
Abbey National v Cann; Re North East Property Buyers' Litigation
270
Coombes v Smith
Affair, children
271
Where does the 'touch and concern' requirement come from?
Spencer's Case
272
Hunter v Canary Wharf
Tort of nuisance needs property right (i.e. not a licence)
273
Where is the meaning of 'sums due' for s.36 AJA?
S.8
274
Cukurova Finance v Alfa Telecom
Telephone shares; right is for security, so can't insist on it even if delayed
275
Re Palmer
Involuntary acts give notice from declaration of bankrupty
277
What is needed for a lease that doesn't satisfy s.54(2)?
A deed
278
What LC Report prompted LT(C)A?
Report No.174
279
Southwark LBC v Mills on LC2
Little difference between LC1 and LC2
280
Jaggard v Sawyer
Cul-de-sac covenant for garden
282
What does Jaggard v Sawyer give as the default remedy for freehold covenants?
Injunction
283
Kregliner v New Patagonia Meat Co
May allow advantages to continue past redemption if don't attach to land
284
What case can be contrasted with Newton Abbot to highlight the difference between easements and FCs?
Hill v Tupper --\> only benefitted business, not land
285
What is required for unregistered land with an equitable lease?
Registration or will not bind
286
Reid v Bickerstaff on duties for benefit of FCs
Not required that all owners are subject to the same duties
287
Duke v Wynne
Insert others
288
King v David Allan
Cinema wall
289
What is s.101 LPA regulated by?
S.103 LPA
290
Harris v Goddard
Need immediate intention to sever
291
When does s.36 AJA apply?
Period to make payments over, dwelling part of the property and even if not D's home and requires bank to have gone to court
292
Hussein v Mehlman
Lease is no different to contract; can accept repudiatory BoC
293
What case shows that the courts will see multiple documents as one for unity of title?
Antoniades v Villiers
294
Eves v Eves
'This will always be your home'
296
What are the four unities of coownership?
Unity of title, time, possession and interest
297
How can a covenant be created?
Signed writing (s.53(1) LPA) and signed contract (s.2LP(MP)A) or proprietary estoppel
298
Walsh v Lonsdale on equitable leases
Beats periodic tenancy
299
What sections of the LPA cover foreclosure?
S.88(2) and s.89(2) LPA
300
What section of LT(C)A solves 'touch and concern' issue?
S.3, expressed to be personal
301
Why did Denning's citation of Bannister (brother in law, rent free) and Binions in DNH not work?
The CTs in those cases arose later as a result of a later promise by the successor
302
Thompson v Park
School
303
Roake v Chadham
Cannot be excluded because allowance for contrary intention in s.79
304
What case shows that notice of severance is given upon declaration of bankruptcy?
Re Palmer
305
Kinch v Bullard
Need not see notice of severance, just delivered
306
What did the court in Prudential comment about the requirement of a term certain?
'Ancient and technical RoL'
307
What did Smith say about JT?
Abolition unlikely to help; TC still requires updating of will
308
What did Pascoe say about s.12 TLATA?
Consistent with method of the trust emphasising use rather than investment value of land
309
What are the three ways to consider quantification for sole and joint legal ownership?
Actual, inferred and imputed common intention
310
What is the statutory method of annexation for the benefit of an FC?
S.78(1) LPA
311
Goodman v Gallant
'Conclusive' declaration of an express trust
312
What section shows a receiver is an 'agent' of the mortgage?
S.109 LPA
314
What did the Law Commission suggest about a TR1 form?
Should be compulsory
315
Cheltenham & Gloucester v Booker
Courts appear to take into account the whole mortgage when deciding 'reasonable period' for s.8 AJA
316
Corbett v Halifax BS
S.104 does not include mere undervalue
317
what is the contractual method for transmitting burden of positive FC?
Chain of indemnity through a contract
318
Why was Coombes a PE case?
D already owned the house
319
What is it called when one JT kills another and is no longer able to claim their full share?
Forfeiture
320
What case shows all four unities are needed for a JT and a lease?
AGS v Vaughan; Antoniades v Villiers
321
Who suggested a 'tenancy by estoppel' could have been used in Berrisford?
Routley
322
Name three sources of regulation for mortgages
FCA Sourcebook on Mortgage and Home Finance; Financial Services and Market Act 2000; CCA 1974
323
Re Ellenborough Park on 'accomodate'
Geographical part to test, and recreation productive and beneficial
324
What were the two steps taken in Berrisford?
Common law rule that uncertain term = lease for life terminable on uncertain event. Then s.149(6) LPA made it a 90 year lease terminable on death/event
325
Why were the court persuaded to grant s.91 LPA in Palk v Mortgage Services?
debtor in negative equity and bank's actions 'unfairly prejudices' them
327
Chartered Trust v Davies
L can breach LC2 by failing to prevent nuisance of other tenants that makes premises materially less fit for purpose
328
What four things protect the equity of redemption?
Rule against irredeemability, mortgagee attempts to purchase are void, unfettered redemption and unconscionable terms/unreasonable interest rates
329
Manchester Airport v Hutton
Trees; no distinction between occupation and possession, allowing licence to = action against protestors
330
Who said that rebutting 'equity follows the law' is not a 'task to be lightly embarked upon'?
Hale, Stack
331
What do Rosset and Stack suggest about the dual role of a purchase price?
Can be used to prove intention and detriment for CT under sole legal ownership
332
S.91 LPA powers of mortgagor
Redemption, order of sale
333
AG Securities v Vaughan
Together licence
334
How did leasehold estate mortgages differ from freehold prior to LRA?
Long lease under s.85 LPA would be for 10 days less than borrower's own lease usually
335
When is there a more expansive notion of 'family home' than in constructive trusts?
Proprietary estoppel.
336
What does the FSMA 2000 regulate?
First legal mortgages secured against individual borrower's home
337
S.98 powers of mortgagor
Claim possession
338
In what case did Lord Kerr call imputed common intention 'fiction'
Jones
339
Ashburn Anstalt v Arnold
CoA rejected that CL gives rise to CT, a proprietary right that can bind successors
