The nature of land Flashcards by Harri Kellett

What are the two key acts governing land law?

Law of Property Act 1925

Land Registration Act 2002

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In which two ways might we describe a right relating to the land?

Proprietary or personal

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Who is a ‘third party’ in the context of land law?

A new owner of the land burdened by the right

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Why does the distinction between the personal and proprietary matter?

The remedy available
Enforceability against 3rd parties

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What are the key differences between proprietary rights vs personal rights?

Proprietary rights can be enforced by an action in rem - the use or possession of land can be recovered - it can also be enforced against a third party

Personal rights can only be enforced by a personal action for damages and only bind the original parties to the right.

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Name the seven proprietary rights in land

Freeholds
Leaseholds
Easements
Mortgages
Restrictive covenants
Estate contracts
A beneficial interest in a trust of land

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How do we judge if a right is proprietary or personal?

Ask four questions:

1) Is it on the fixed list of recognised proprietary rights in land?

2) Does the right satisfy any substantive characteristics for the particular right?

3) Has the right been created with the formalities for the particular right?

4) Is the right protected / enforceable against a 3rd party

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What is a proprietary right of possession called?

An estate in land

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What are the two recognised legal estates?

The freehold and leasehold estate

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What is the highest estate in land?

The freehold estate - lasts until the owner dies without heirs.

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What is the residue of the estate after the granting of a lease known as?

The freehold reversion; when the lease ends, the right to physical possession of the land reverts to the landlord.

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What is commonhold?

A type of freehold where you each own the freehold to a flat in a commonhold association - very uncommon.

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What is an interest in land?

A proprietary right of a more limited use than a freehold / leasehold estate - gives the holder the right to do something on the land / restrict what can be done.

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What are the legal and equitable interests in land set out by LPA 1925 S1?

Legal Interests

Mortgages
Easements granted for a term equivalent to a freehold or leasehold term
Rights of entry

Equitable interests

Freehold covenants
Estate contracts
Interests in a trust of land
Easements granted for an uncertain term

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What is a mortgage and what is its status?

A mortgage can be a legal interest

A bundle of rights granted over property in exchange for a loan of money

Borrower grants the mortgage

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What is an easement, and what is its status?

A proprietary right to use land which belongs to somebody else

Status depends on how long it is granted for - if forever, or for a term equivalent to a leasehold, it can be a legal easement.

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What is a right of entry, and what is its status?

Right of entry is a legal interest in the land

A right for a landlord to re-enter leased premises and end the leasehold estate.

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What is a restrictive covenant, and what is its status?

Is it a promise not to do something on your land.

It is an equitable interest - not a legal interest.

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What is an estate contract and what is its status?

A contractual right to a legal estate [freehold or leasehold]

It is an equitable interest

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What is an interest in a trust of land, and what is its status?

The beneficiary’s interest in a trust of land - this is an equitable interest.

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What are the four ways in which a freehold estate can be transferred?

Sale, will, gift, operation of law

What are the three stages of the sale of a freehold?

1) Exchange of contracts
2) Completion of the deed
3) Registration

What is the legal importance of the exchange of contracts?

The parties become legally committed to buy / sell the land e.g. paying a deposit to a seller.

What formalities must any contract in which the subject matter is land comply with?

LP(MP)A 1989 S2:

Contract must be in writing

Must contain all the expressly agreed terms (can be by reference)

Must be signed by both parties (often identical contracts exchanged with different signatures on both)

How does completion of a sale of land occur?

Via a deed - called conveyance if unregistered / transfer if registered.

What are the requirements for a deed to be valid?

Found in LP(MP)A S1: Must be clear that it is intended to be a deed Deed must be validly executed (deed must be signed by a seller in the presence of a witness, who also must sign to attest to the signature) Deed must be delivered (dated)

What is a standard form of transfer deed used?

TR1

At which point does legal title pass when freehold land is being transferred?

Unregistered land: when the deed is completed Registered land: title passes when registration takes place

What happens if unregistered land is sold for the first time?

A legal requirement to register the land is triggered.

What happens if unregistered land once sold is not registered?

Must be registered within two months of completion, or title will revert back to the seller.

How must a land contract be varied?

If the variation is of a material term (essential to the nature of the contract) it must also comply with LP(MP)A S2 (writing, contain all expressly agreed terms, signed by both parties)

What is the effect of a land contract?

Passes an equitable interest in land called an estate contract

Give examples of common land contracts:

A sale contract in conveyancing Agreement / contract for lease. Option agreement Right of pre-emption

If not intentionally, how else can a land contract be made?

If parties try to create a valid deed and fail, as long as there is a document complying with LP(MP)A S2 and the remedy of specific performance is available.

What must be done to an estate contract to make it enforceable against third parties.

It must be protected - method will depend whether this is unregistered or registered land.

What remedies are available for breach of a land contract?

Damages: available as of right, calculating the loss the claimant has suffered including loss of bargain Specific performance: equitable Prohibitory injunction: equitable

What events trigger compulsory registration of land, or compulsory update of the register of land?

Transfer of the freehold by sale, gift, court order Grant of a lease for more than seven years A first legal mortgage of the freehold

What is the aim of land registration?

That people know exactly what they're buying and if an interest is registered, people know it would be enforceable against a new owner.

What are the three principles of the system of registered land?

Mirror principle Curtain principle Insurance principle

Why has the mirror principle never been fully realised?

Existence of overriding interests means that the register may not always be fully accurate.

What is the curtain principle?

What is the insurance principle?

Accuracy of the land register is guaranteed by the state.

If you fail to update the Land Registry re a transaction that should have been notified of, what is the legal effect?

The transaction is considered not legally registered

Where can the statutory definition of land be found?

LPA 1925 s205 - includes the surface, buildings, of parts of buildings on the land.

How far do an owner's rights extend into the airspace?

To such height as necessary for the ordinary use and enjoyment of the land. [Lower airspace] Upper airspace - owner has no rights greater than those of the general public

How far do an owner's right extend below their land?

General rule - you own all that comes below it. Except: coal, mines, minerals, and no trespass below 300m

What are fixtures and chattels?

Fixtures are attached to land and pass with sale of land. Chattels are items the seller would take with them.

What is the legal test for determining if an object is a fixture or chattel?

Two part: - The degree of annexation test - the more firmly the object is fixed to the land, the more likely it is a fixture - The purpose of annexation test - second part of the test considers why the object is attached to the land / building. Was it to enjoy the item as a chattel, or to enhance the land or building in some way.

How does the test for determining whether an object is a fixture or a chattel work?

Degree of annexation raises a presumption that the thing in question is or is not a fixture. This can then be rebutted by looking at the purpose. Is the item 'intended to be a permanent and lasting improvement to the building?'

Give examples of fixtures versus chattels?

Fixtures: Kitchen units, things installed by a builder, bathroom fittings Chattels: ornaments, carpets and curtains

Give three principles from case law about fixtures versus chattels:

If a chattel is incorporated into the architectural design of a building, it may be a fixture If a chattel is only affixed to enjoy it better, it will remain a chattel If a chattel can't be removed without destruction / demolition, it will be considered a fixture.

What is it common practice for buyers and sellers to do to avoid disputes about chattels vs fixtures?

Fill out a Law Society Fixtures and contents form TA10