Tidbits Flashcards
How much do Landowner owns earth beneath and airspace
reasonable height: Bernstein v Skyviews
Items found on land
If it is treasure, defined Treasure Act 1996 – 200-300yrs old 10% gold / silver or a collection of coins or base metal, it goes to the crown
If not treasure distinguish
Things found in land are the landowner’s: Waverley BC v Fletcher
Things found on land are the finder’s unless landowner manifests control: Parker v BA
Fixture or chattel
Degree of annexation
Test: How firmly fixed and ease of removal without damage?
Purpose of annexation
Test: For improvement of land or enjoyment of the item?
Is it part of the overall architecture of the land?
If fixture, passes with sale of land (s.62 LPA) unless excluded in contract (s.62 (4))
Formalities for transfer of freehold
- Contract stage: A contract for the sale or other disposition of land must comply with s.2 LP (MP) A 1989:
Contract must be in writing, signed by both parties, and contain all the terms expressly agreed.
At this point the purchaser only has equitable interest at this point. An estate contract
Legal title transferred by:
Deed (s.52 (1) LPA 1925):
Deed defined s 1LP(MP)A: Signed by grantor, witnessed (signed by a witness), delivered (dating) and makes clear on its face it’s a deed
Also needs to be registered ss4 or 27 LRA 2002
Formalities for a grant of a legal Lease
Must be by deed (s.52 (1) LPA 1925)
Except for leases not exceeding 3yrs that take effect in possession at the best rent without taking a fine (s 54(2) LPA). No need for deed or writing
Must be registered if it exceeds 7 years: LRA s 27(2)(b)(i)
Lease must be for 7 years or less doesn’t have to registered and is called an overriding interest under the LRA
Formalities for assignment of legal lease
Must be by deed regardless of duration of the lease (Craigo v Julian)
Assignment of unregistered lease must be registered if more than 7 years left: LRA s 4 (2)(b)
Assignment of registered lease must be registered: LRA s 27(2)(a)
Equitable lease
If no deed or registration when required
Or if only an agreement for a lease (the contract stage)
In either case, must comply with s.2 LP (MP) A 1989, as it is a contract to grant a lease
The formalities for an equitable lease are that it must comply with the formalities for a contract
Legal interest
Listed in s 1(2) LPA 1925
s. 1 (2) (a) LPA 1925: easements and profits for freehold or leasehold period
s. 1(2) (c): mortgages
Must be granted by deed
Must be registered (unless implied easements)
Equitable interests
Restrictive covenants
Estate contracts – includes contract to buy, option to buy, right of first refusal
Beneficial interests behind a trust
Equitable easements – not by deed or for an uncertain period of time or not registered
Equitable mortgages – not by deed or not registered
Equitable leases – not by deed, not registered or if it’s only a contract for a lease
Formalities for equitable interests in land
Minimum: Must be in signed writing: s.53 (1) (a) LPA 1925
If it is a contractual type of equitable interest, includes a failed attempt to create a legal interest, it must comply with s.2 LP (MP) A 1989
Exception: beneficial interest under an implied trust- s. 53 (2) LPA 1925
Doesn’t have to be in writing
Exception: creation by estoppel
protecting against 3rd parties - registered
Registrable Main Dispositions listed s.27 LRA 2002 includes:
Legal lease exceeding 7 years s 27(2)(b)(i), express legal easement s 27(2)(d), and legal mortgage (s 27(2)(f))
3rd Party Registrable interests. Registered by notice on the charges register under s.32
Interests that don’t need to be registered: Overriding interests (schedule 3):
Para 1: Legal leases not exceeding 7 years
Para 2: Interests of those in occupation
Case law necessary here
Note: interest not overriding if you fail to declare it on enquiry or it is not apparent on reasonable inspection
Para 3: Implied easements
Only where person had reasonable notice of easement apparent on reasonable inspection of the land or where it has been exercised in the last year
Beneficial interest behind a trust. Can be overreached by sale by two or more trustees. Usually a restriction is entered on the register saying that sale by one legal owner will be valid
Effect of failure to register
An interest that is not registered or overriding will not be binding on a purchaser for valuable consideration: See sections 28 and 29 LRA 2002 S 28 – all interests are binding on a purchaser S 29(2) – a purchaser for a valuable consideration will only be bound by an interest in the land that is registered or classed as overriding under sch 3
Valuable consideration does not include marriage consideration or nominal consideration s 132 LRA 2002
protecting against 3rd parties - unregistered
Legal rights bind the whole world automatically
Land charges have to registered on the land charges register to be binding on a purchaser: A pusine mortgage (c)(i) If not registered not binding on a purchaser of any interest for valuable consideration Equitable charge (mortgage) (c)(iii) If not registered not binding on a purchaser of any interest for valuable consideration Estate contract (c)(iv) – includes: contract to buy, option to buy, right of pre-emption, equitable lease If not registered not binding on a purchaser for money or money’s worth Post 1925 Restrictive covenant (d)(ii) If not registered not binding on a purchaser for money or money’s worth Post 1925 Equitable easement (d)(iii) If not registered not binding on a purchaser for money or money’s worth Spouse’s right of occupation (class f) If not registered not binding on a purchaser of any interest for valuable consideration
Beneficial interest behind a trust is not registrable as a land charge but can be overreached by a sale of two trustees, as in registered land
Doctrine of notice still applies to protect some interests:
One trustee trusts
Beneficial interest under a trust and land is sold or mortgaged by one trustee. The interest will only be binding on the purchaser if the purchaser has actual or imputed notice of the interest
Pre-1926 restrictive covenants
Equitable easements
Estoppel rights
None of these are binding on equity’s darling
Proprietary estoppel
Must be:
Clear Assurance
Reliance on the assurance. The reliance must be reasonable
Detriment, interpreted broadly, doesn’t have to financial
Unconscionable to go back on assurance
This creates an equity that can be registered or overriding if in occupation at the date of sale in registered land, or binding on purchaser with notice in unregistered land
Court will give remedy to satisfy the equity – minimum equity to do justice
