QUIZ Flashcards
How are easements created
Grant or reservation
3 ways an easement is created by grant
Implied grant
Express grant
Presumed grant or prescription
What is an express grant
Expressly agreed to in writing
What is a implied grant
Created by necessity or common intention
Necessity is Nickerson v barraclough- must be necessary for the easement
Common intention shown between the parties for easement to exist - Liverpool city council v Irwin
What are the common factors of wheels on v burrows and when will it be implemented
Where sole owner sold off part of his land. Previous union of sole owner Exercising a quasi easement Right is continuous and apparent Necessary for reasonable use of the land
Easement requirements to be created under s62
With diversity of ownership and occupation…
Must have been a conveyance
Permission given to the occupier
Without ownership and occupation…
Right continuous and apparent
Benefits the land conveyed
Easement characteristics under RE Ellenborough Park
1) dominant and servient tenement
2) benefits dominant tenement
3) diversity of ownership and occupation
4) capable of forming a subject matter of grant
5) does not require the expenditure of money
6) sufficiently definite
7) similar to existing easements
What is no exclusive possession and the case
No exclusive possession is where an easement can not prevent the land owner from use of their land. Copeland v greenhalf
Ways an easement can be granted through prescription
Prescription Act 1832
Doctrine of notice of lost modern grant
Common law
Ways to claim a right through presumed grant or prescription
Use for 20 years or more
User of right
Right has been used continuously
Freehold owner is claiming from another freehold owner
What is reservation
When a sole owner sells a piece of their land but retains a right over the land sold
What is profit a prendre and an example of one
Rights to someone else’s land for the purpose of produce or soil. For example fishing rights
How may an easement be terminated
Release
Statute
Unity of ownership and possession
What is the difference between covenantor and Covenantee
Covenantor- has the burden to maintain the covenant
Covenantee- has the benefit is the covenant is breached and can enforce
What is privity of contract
Agreement is always enforceable between original covenantor and Covenantee
Common law - does benefit run? Name case
- does covenant touch and concern the land
- does the original Covenantee still own the land
- was it intended to pass with the land
- successor in title derived from the original covenantee?
CASE: Smith and snipes hall v river Douglas
Common law- does the burden run?
Rhône v Stephens - benefit of the covenant will not run with the land
Equity- will the benefit of the covenant run?
- does it touch the land?
- is it annexed to the land of Covenantee (ROGERS v HOSEGOOD)
- expressly assigned to successor in title
- land is part of a building scheme
Equity- does the burden of the covenant pass?
Tulk v moxhay
- negative covenant
- intended intended to pass with the land
- dominant and servient tenement
- benefits dominant tenement
- notice if served of covenant
Discharge covenant or vary under Upper tribunal land chamber
Obsolete - changes to character of property or neighbourhood
- continued existence of the covenant prevents reasonable existence of land
3 types mortgage
Repayment- monthly contributions to the capital loan and interest over fixed term. Usually 25 years. Comes to an end the mortgage is repaid in full
Endowment- payment of instalments to interest only, usually endowment policy taken out to coexist with mortgage. Payments for policy usually pay off the capital loan when comes to an end.
Pension- mortgage for those who are self employed so they get the benefit of the pension at the end
How is a legal mortgage for unregistered land created
s85 LPA- for a term of years absolute or by deed
How is a mortgage protected
By expressly staring the property has been charged which reflects on the register
What is the legal date of redemption
Date whereby the full loan is to be paid in full
What is equity in redemption
the right to repay the mortgage in full -equity of redemption
What is clog in equity
If a mortgagor is prevented from exercising their equitable right of redemption.
Fairclough v Swan Brewery
How is the possession of sale exercised
S101 order for possessions of sale
S103 is exercising possessions of sale.
Can only be done if the mortgagor is
2 months in arrears for interest payment.
3 months has passed for notice to pay capital loan
Any breach of any term
2 remedies available to mortgagee for non payment
Possessions of sale
Action in debt
Foreclosure
