Registered + Unregistered land

Question 1

What is ‘Land’

Answer 1

Land includes the physical land, buildings and fixtures (corporeal hereditaments) and rights over land (incorporeal hereditaments)

Question 2

Land includes the air above and the ground below. What are examples of exceptions?

Answer 2

• A landowner was able to secure an injunction to prevent their neighbour from accessing a cellar underneath the landowners’ property
• Land only extends to the lower airspace - the part necessary to the owners ordinary use and enjoyment of the land

Question 3

What about things found on the land?

Answer 3

First step is to check if the ‘true’ owner can be found, if not:

• if the object is defined as treasure under the Treasure Act 1996, then it belongs to the Crown
• if the object is not treasure trove but is attached to the land or is under the surface, it is part of the land and can be claimed by the landowner
• if the original owner cannot be traced, the property is not treasure trove and is unattached, as a general rule it can be claimed by the finder - unless there is an employer/employee relationship prior to the item being found
• private occupiers generally own things found on their land if the original owner cannot be found

Question 4

What is a fixture?

Answer 4

Anything attached to the land is a part of the land

Question 5

What is a chattel

Answer 5

Chattels are goods and other things that are not fixtures or otherwise a part of the land

Question 6

What are the two tests for determining if something is a fixture?

Answer 6

The degree of annexation test
The purpose of annexation test

Question 7

What is the degree of annexation test?

Answer 7

presumption that if something is fixed, attached, or bolted to the building, it is a fixture
if it is moveable or resting on its own weight, it is a chattel

Question 8

What is the purpose of annexation test?

Answer 8

Was the chattel put there to make sure of the chattel more convenient (looked at and enjoyed) or to improve the property?
degree test can be rebutted by the purpose test if there is a discrepancy between them

Question 9

What events will trigger compulsory first registration of unregistered land?

Answer 9

Sale of freehold
Mortgaging land
Transfer by gift
Transfer of lease for more than 7 years
Assent by beneficiaries

Question 10

When the need for registration is triggered, when must this be completed by?

Answer 10

Within 2 months of the need arising otherwise the transaction will be void.

In the case of a mortgage this will become an equitable mortgage.

Question 11

What interests in land are registrable dispositions under s27 LRA?

Answer 11

Legal mortgages
Expressly created legal easements
Legal lease for term of more than 7 years
Disposition of a lease with more than 7 years left to run.

Question 12

What is the effect of a registrable disposition if it is not registered?

Answer 12

Registrable dispositions must be registered to be legal.
They will not bind a purchaser if they are not registered.

Question 13

Which interests in land are classed as interests affecting a registered estate?

Answer 13

FLA home rights
restrictive covenants
Equitable easements
Estate contracts

Question 14

How are interests affecting a registered estate (IAREs) protected?

Answer 14

Under s29/32 LRA IAREs must be registered as a notice in the Charges Register by the date of registration of the transfer of title to bind the purchaser.

These interests CANNOT be overreached.

Question 15

What interests does overreaching apply to in registered land?

Answer 15

Beneficial interests under a trust.

Question 16

What interests can be overriding interests under Sch 3 para 1?

Answer 16

Legal leases of 7 years or less,

Leases already protected before LRA 2002 came into force.

Legal easements not created expressly by deed

Question 17

Proprietary Rights

Answer 17

Can be enforced by an action in rem - meaning use or possession of the land can be recovered

Holder of the right does not have to settle for damages

Can be enforced against a third party

Question 18

Personal Rights

Answer 18

Can only be enforced by a personal action for damages if breached
Use or occupation of the right cannot be recovered
Will only bind the original parties to the right and there can be no recourse against a third party

Question 19

What is the effect of an overriding interest?

Answer 19

It does not need to be entered on the register; it is automatically binding.

Question 20

What are the restrictions on legal easements not created expressly by deed being overriding interests?

Answer 20

The easement will only be an overriding interest if:

The purchaser knew of the easement before they bought the land.

Easement would have been obvious on reasonable inspection.

Easement had been used in the year before purchase.

Question 21

What interests can be protected as an interest of persons in actual occupation?

Answer 21

Options / contracts to purchase freehold estates
Equitable leases
Legal leases of less than 7 years
Legal lease of more than 7 years which has not been registered.

Question 22

Which interests cannot be protected if a person is in actual occupation?

Answer 22

Mortgages and easements.

Question 23

What conditions are required for a person to be in actual occupation?

Answer 23

1. Must have an interest in the land (a proprietary interest)
2. Must be actual occupation
3. EITHER occupation obvious on reasonably careful inspection OR purchaser actually knew of interest
4. If inquiry made of person claiming right, he must disclose it (unless unreasonable to do so) – person claiming the right rather than the seller, must disclose the right

Question 24

Explain some cases relating to the nature of the land for actual occupation.

Answer 24

Kling v Keston
- What is understood as actual occupation depends on the nature of the land itself
- Here car parked in garage - this was actual occupation as land occupied in expected way (analogy to ponies in a field?)

Malory Enterprise v Cheshire Homes
- Derelict land - putting up fences and other security was enough to show AO

Abbey National Building Society v Cann
- Preparatory steps not enough for actual occupation
- Sent son to move furniture in held to be ‘preparatory steps leading to…actual occupation’

Lloyds Bank plc v Rosset
- Mrs Rosset was visiting the property regularly to supervise building work
- Held to be AO

Question 25

is actual occupation through an agent, employee or friend possible?

Answer 25

Caswell/Rosset/Cann
- Can be through an agent who is employed for a purpose which directly involves occupation

SS v Caswell
- If the third party occupies for their own purpose, then this will not constitute actual occupation

Dugdale
- Even if rent is paid this person will still be occupying for their own purpose

Question 26

If a person has a temporary absence from the property are they still in actual occupation?

Answer 26

ases to support AO

Chokar v Chokar
- Wife in hospital having baby husband tried to sell house but she was still in actual occupation
- Intention to return
- And possessions still in property

Link Lending v Bustard
- Absent for a year in psychiatric care but made regular visits, paid bills and all possessions were in the property
- Doctors not yet ruled out ever going home

Cases against AO

Thompson v Foy
- Possessions still in the property however had made decision never to return
Stockholm Finance v Garden Holdings
- Not AO - continued absence for over a year
Must be a point at which person’s absence is so prolonged not reasonable to consider them in actual occupation

Question 27

What are the formalities for creating a Freehold interest in land

Answer 27

Must be created by deed

A deed is a document which satisfies the criteria under s1(2)LP(MP)A 1989

Makes clear it intends to be a deed
is validly executed as a deed and signed in the presence of a witness and delivered as a deed

Question 28

Which two estates in land are capable of being legal?

Answer 28

Freehold - Estate in fee simple absolute in possession s1(1)(a) LPA 1925

Leasehold - Term of years absolute s1(1)(b) LPA 1925

Question 29

What are the formalities for creating a Freehold interest in land

Answer 29

Must be created by deed

A deed is a document which satisfies the criteria under s1(2)LP(MP)A 1989

Makes clear it intends to be a deed
is validly executed as a deed and signed in the presence of a witness and delivered as a deed

Question 30

Name the two types of leases capable of being legal

Answer 30

Fixed term lease

Periodic lease

Question 31

Name the 5 interests in land capable of being legal.

Answer 31

Leasehold

Freehold

Easement

Rentcharge

Mortgage

Question 32

Name the 5 interests in land which are capable of being equitable

Answer 32

Equitable easement

Equitable lease

Restrictive covenant

Estate contract

Trusts

Question 33

How is an express trust over land created?

Answer 33

In writing under s53(1)(b) LPA

Question 34

How is a legal estate in land held?

Answer 34

The legal estate is ALWAYS held as a joint tenancy.

The joint tenancy of the legal estate cannot be severed and the rights of survivorship apply. If one JT dies the other takes their interest.

Question 35

Rights that have Proprietary Status

Answer 35

· The Freehold Estate
· The Leasehold Estate
· An Easement
· A Mortgage
· A Restrictive Covenant
· An Estate Contract
· A Beneficial Interest in a Trust of Land

Question 36

The freehold estate
property

Answer 36

Right of Possession which lasts until the owner for the time being dies without heirs
Not determinable or subject to a condition
· Fee simple owner has a current right to use and enjoyment of the

Question 37

Leasehold Estate

Answer 37

· A lesser estate of certain duration of term of years absolute
· After a lease comes to an end, the right to own a property is known as the freehold reversion. If a sub-lease comes to an end, the right of the original leaseholder to own the property is called the leasehold reversion

Question 38

Commonhold

Answer 38

Type of freehold which is an alternative to a long leasehold, with the advantage of their being no landlord
The land is owned by a commonhold association and the owner of each flat is a member of the association

Question 39

Completion of the Deed

Answer 39

The deed must be validly executed
· Must be signed by the seller in the presence of a witness
· Witness needs to sign the deed to confirm that he or she has witnessed the signing of the deed
The deed must be delivered
· Acknowledged that a person entering into a deed intends to be formally bound by its provisions
· Dating the provisions
· If the land being transferred is unregistered land, which is much rarer nowadays, legal title passes at this point

Question 40

Exchange of Contracts

Answer 40

Buyer and seller enter into a binding contract in which they agree the price and other terms
contract must be in writing, contain all the expressly agreed terms, must be signed

Question 41

conveyances

Answer 41

Deeds are known as conveyances in unregistered land

Question 42

Formalities to Create a Lease

Answer 42

General Rule: to create a legal lease, a deed must be used
· If the term of the lease is over 7 years, the lease must also be with registered
· Short-Lease Exception:
o A lease with a term of three years or less need not be created by deed provided the following three conditions are all met:
lease takes effect in posession, granted at market rent and is not subject to a fine or premium (no upfront payment fro the grant)

Question 43

What is ‘action in rem’

Answer 43

Action in rem is a type of legal proceeding used to decide a property’s title, as well as the rights granted to parties listed in the title.