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Land Law > Proprietary Rights, Estates in Law, Interests in Land and Land Contracts > Flashcards

Proprietary Rights, Estates in Law, Interests in Land and Land Contracts Flashcards

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1
Q

What is a proprietary right in land?

A

A right in land that can be enforced by an action in rem, meaning the use or possession of land can be recovered, including against third parties

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2
Q

How does a proprietary right in land differ from that of personal right in land?

A
  • personal right can only be enforced by personal action (not action in rem) for damages
  • use or occupation of right cannot be recovered
  • personal rights will bind only the original parties to the rights (no recourse against third parties)
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3
Q

What rights have proprietary status?

A
  • freehold estate
  • leasehold estate
  • an easement
  • a mortgage
  • a restrictive covenant
  • an estate contract
  • a beneficial interest in a trust of land
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4
Q

What must you ask to work out if a right is proprietary or personal?

A

1) Is it a recognised proprietary right?

2) Nature of the right - does it satisfy the substantive characteristics for the particular proprietary right?

3) Creation of a right - has is been created/acquired in accordance with the formalities for the particular right if any?

4) Protection of right - has the appropriate steps been taken to protect that right against third parties ie registration?

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5
Q

Who owns all the physical land in England and Wales?

A

The Crown

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6
Q

What is an estate in land?

A

A proprietary right of possession over land

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7
Q

What is the highest possible estate in land?

A

Fee simple absolute in possession or freehold estate

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8
Q

How long does a freehold estate last for?

A

Indefinitely - until the owner for the time being dies without heirs

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9
Q

If you own a freehold estate what could you choose to do with it?

A
  • sell it
  • gift it
  • grant lesser estate out of it ie leasehold
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10
Q

What is a leasehold?

A

A lesser estate in land for a certain duration

(also known as terms of years absolute)

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11
Q

If a freeholder grants a leasehold, what right do they retain?

A

Freehold reversion

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12
Q

If a leaseholder grants a sublease, what right do they retain?

A

Leasehold reversion

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13
Q

What is common hold?

A

A way of holding freehold where each leaseholder is a member of common hold association which holds the freehold

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14
Q

What is an interest in land?

A

A proprietary right of limited use ie gives holder right to do something on land or prevent something being done but right to possess land

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15
Q

What is an incumbrance?

A

Another name for interest on land

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16
Q

If right is not recognised by LPA 1925 s 1, can it ever have proprietary status?

A

No - just personal

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17
Q

What proprietary interests are legal interests?

A
  • mortgages
  • easements granted for a term equivalent to a freehold or leasehold estate (ie forever or for a certain term)
  • rights of entry
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18
Q

What proprietary interests are equitable interests?

A
  • freehold covenants
  • estate contracts
  • interests in a trust of land
  • easements granted for an uncertain term
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19
Q

What is an easement?

A

Proprietary right to use land which belongs to someone else

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20
Q

When when an easement be a legal interest and when will it be an equitable interest?

A
  • legal interest - must be granted for a term equivalent to one of the legal estates
  • equitable interest - granted for an uncertain duration
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21
Q

Is a right of entry a legal interest?

A

Yes

22
Q

What are the two types of right of entry?

A
  • right for a landlord to re-enter leased premises and end the leasehold estate in event of the tenant defaulting or some other specified event occurring
  • a rentcharge owner’s right to hold the land if money owed is not paid (uncommon)
23
Q

What is a restrictive covenant?

A

Promise relating to the land

24
Q

Is a restrictive covenant a legal interest?

A

No - equitable interest

25
Q

What is an estate contract?

A

Contractual right to a legal estate, whether freehold or leasehold

26
Q

Is an estate contract an equitable interest?

A

Yes

27
Q

What is an interest in trust of land?

A

Beneficiaries of trust have equitable interest in land held by trust

28
Q

Why does the distinction between legal and equitable interests in land matter?

A
  • remedies - different remedies for both. Legal interest broader remedies and has damages as a right. Court has discretion over remedies for equitable rights.
  • Enforcement against third parties is stronger for legal interests
29
Q

What are the three stages for transfer of freehold land?

A

1) Exchange of contract (voluntary)

2) Completion of the Deed (legally necessary)

3) Registration (legally necessary)

30
Q

What legal effect does exchange of contracts have?

A

Parties become legally committed to buy/sell the land.

31
Q

What formalities are required for a valid contract to sell land?

A
  • the contract must be in writing
  • the contract must contain all the expressly agreed terms
  • the contract must be signed by both parties
32
Q

A legal estate must be transferred or created by deed. What formalities are there for a valid deed?

A
  • must be clear on the face of it that document is intended to be a deed
  • the deed must be validly executed
  • the deed must be delivered
33
Q

How is the execution requirement for deeds satisfied if the executor is an individual?

A
  • the seller signs the deed in the presence of a witness
  • that witness then signs the deed and attests they the seller signed the deed
34
Q

How is the execution requirement for deeds satisfied if the executor is a company?

A

One of the following

  • two directors sign in the presence of a witness
  • one director and the company secretary sign in the presence of a witness
  • affix the common seal of the company
35
Q

Who is to execute the deed? Seller, buyer or both?

A

Just the seller is required by law

36
Q

What is required for delivery of the deed?

A

Acknowledgement that a person entering into a deed intends to be formally bound by its provisions.

Normally done in practice by dating the document

37
Q

When does legal title pass for freehold with registered land?

A

On registration

38
Q

When does legal title pass for freehold with unregistered land?

A

On completion of the deed

New owner must register within two months of completion otherwise legal title will revert back to seller

39
Q

In addition to a land contract abiding with all the necessary formalities what requirements must it also meet to be valid?

A

Must comply with normal contract law requirements

40
Q

How may a contract for land satisfy the requirement that the contract must contain all the expressly agreed terms?

A
  • terms are all set out in the contract itself
  • terms are incorporated by reference to some other document
41
Q

What are the two ways whereby the requirement that the contract is signed by both parties can be satisfied?

A
  • terms may either be contained in once document, which is signed by both parties
  • contracts can be exchanged, in two documents, provided they are identical
42
Q

Can a land contract be varied?

A

Yes - but only if variation also complies with the formalities

43
Q

What is the effect of a binding land contract?

A

Passes an equitable interest in the land to the buyer

44
Q

When might there be an estate contract?

A
  • contract to buy land
  • contract for lease
  • option agreement
  • right of pre-emption
  • failed legal estate/interest
45
Q

What is an option agreement?

A

Estate contract whereby one party gives another a right during the option period to serve notice that they wish to buy the land

If notice is served during option period, then seller must sell the land to the buyer

Option holder not obliged to exercise option or buy land

46
Q

What is a right of pre-emption?

A

Estate contract that gives another party a right of first refusal in the event the land owner decides to sell their land. This means the land owner cannot sell the land without first offering it to the party holding the right

47
Q

When will a failed legal estate/interest be recognised as an estate contract?

A

When document trying to create legal interest/estate fails to meet the requirements ie not a deed but nonetheless meets the requirements of an estate contract and specific performance is available

48
Q

How can an estate contract be enforced against third parties?

A

Will be binding if proper steps for protection has been taken

Protection depends on whether estate contract relates to registered or unregistered land

49
Q

What remedies are available for breach of an estate contract?

A
  • damages - as a right
  • specific performance and injunctions at court’s discretion
50
Q

What additional requirements are there for the remedy of specific performance and injunctions for breach of estate contract?

A

Equitable remedies so behaviour of both parties relevant and delay on behalf of claimant also relevant

Land Law (12 decks)

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