Rights In Land

Question 1

What are the requirements of a valid deed?

Answer 1

1. It must be clear on the face of the document that it is intended to be a deed.
2. It must be validly executed (by the seller - buyer does not have to sign).
3. Delivered.

Question 2

When does the legal title of registered land transfer to the new owner?

Answer 2

When registration has taken place.

Question 3

When does the legal title of unregistered land move to the new owner?

Answer 3

When the deed is completed. They then must register the land within 2 months or the title reverts to the seller.

Question 4

What formalities are needed to create a legal lease of over 3 years?

Answer 4

1. It must be created by a deed.
2. If it is over 7 years, it must be registered (if not it will be binding as an overriding interest).

Question 5

What formalities are needed to create a legal lease of 3 years or less?

Answer 5

No formal requirements for a short term lease. It can even be created orally. However, it must be granted at market rate, tenant must take the lease immediately and there can be no fine for the grant.

Question 6

When might an equitable lease be created?

Answer 6

When the parties try to make a legal lease but fail. There must be a document complying with s 2 LP(MP)A and specific performance must be an available remedy.

Question 7

Which proprietary interests in land can only ever be equitable?

Answer 7

1. Freehold covenants.
2. Easements granted for an uncertain term.
3. Land contracts.
4. Interests in a trust of land.

Question 8

Which proprietary interests in land can be legal or, failing that, equitable?

Answer 8

1. Mortgages.
2. Easements granted for a term equivalent to a leasehold or freehold estate.
3. Leases.
4. Rights of entry.

Question 9

When might an equitable mortgage be created?

Answer 9

1. If a legal mortgage is either not granted by a valid deed or is not registered.
2. If it is a mortgage of an equitable interest e.g. the borrower is a beneficiary of a trust in the land.

Question 10

What are the requirements of a valid land contract at s 2 LP(MP)A?

Answer 10

1. Must be in writing.
2. Must be signed by both parties.
3. Must contain all of the agreed terms.

Question 11

What are the key characteristics of a proprietary right in land?

Answer 11

1. It can be enforced by an action in rem (i.e. use or possession of the land can be recovered). The owner does not have to settle for damages if deprived of their right.
2. It can be enforced against a third party.

Question 12

What are the key characteristic of a personal right in land?

Answer 12

1. Can only be enforced by a personal action for damages if the right is reached.
2. Only binds the original parties so cannot be enforced against a third party.

Question 13

What four criteria must be satisfied for a right to be capable of being an easement?

Answer 13

1. There must be a dominant and servient tenement.
2. The right must accommodate the dominant tenement.
3. There must be diversity of ownership.
4. The right must lie in grant.

Question 14

What factors can disqualify a right from being an easement?

Answer 14

1. Must not be exclusive possession of the land.
2. Must not require additional, unavoidable expense by the servient owner.
3. Must not depend on permission being given by servient owner.

Question 15

When will s 62 LPA imply a brand new easement into a document?

Answer 15

1. Must have been prior diversity of occupation, or a quasi-easement where the right was continuous and apparent.
2. Informal permission must have been granted by the owner of the servient land to the owner of the dominant land.
3. There must have been a conveyance of he dominant land.

Question 16

When will an easement be implied by the rule in Wheeldon v Burrows?

Answer 16

1. The owner sells of leases some of their land to a new owner or tenant.
2. The new owner implied it acquired as easements the rights the owner had.
3. The owner must have enjoyed the rights as quasi-easements before.

Question 17

When will an easement be implied by common intention?

Answer 17

Where land has been sold or leased for a particular purpose which cannot be fulfilled without the easement.

Question 18

When will an easement be implied by necessity?

Answer 18

If it is essential to make any use of the dominant land i.e. it is the only right of way to access otherwise landlocked land.

Question 19

When does the lenders right to possess arise?

Answer 19

As soon as the mortgage is granted.

Question 20

When does the lender’s right to sell arise and when does it become exercisable?

Answer 20

It arises as soon as the first payment is due. It becomes exercisable when either: notice requiring full payment of the loan is served by the lender; or interest and arrears are unpaid for at least two months.