Topic 5: Practical aspects of property and mortgage law

Question 1

What are Dominant and Servient tenements?

Answer 1

A dominant tenement has rights over another. A servient tenement is one over which a dominant tenement has rights (see easement).

Question 2

What is an Easement?

Answer 2

A right that one property has over another, eg a right of way. A positive easement gives the dominant tenement the right to do something. A negative easement restricts what the servient tenement can do. Easements run with the land, so pass on with the property each time ownership changes.

Question 3

What is a Covenant?

Answer 3

A restriction or condition placed on land by a landowner that will affect future purchasers. A positive covenant requires the owner to do something, such as maintain a fence, while a restrictive covenant prevents the owner from doing something, such as parking a caravan on the property. Covenants run with the land, so pass on with the property each time ownership changes.

Question 4

What is a Chancel Repair Liability?

Answer 4

An ancient right given to parochial councils, which can require the owners of certain properties in the parish to pay for, or towards, the cost of repairs to the chancel of the parish church.

Question 5

What is a Puisne mortgage?

Answer 5

A second or subsequent charge on unregistered land where the deeds are held by the first-charge lender.

Question 6

What is the aim of land registration?

Answer 6

The aim of registration is to provide an accurate, up‑to‑date and continuing
record of ownership of land, and registration enables the state to guarantee
the validity of a title registered at the Land Registry. In view of this, the buyer’s solicitor will carry out a detailed search of the relevant registers.

Question 7

What is the First Registration of Title?

Answer 7

The compulsory registration of a previously unregistered property when it is transferred, has a lease exceeding seven years granted, or has a legal mortgage created upon it. The owner of unregistered land may also register it on a voluntary basis.

Question 8

What does the Property register give?

Answer 8

Details:
- the land
- its title number
- a plan of the property
(easements that are
beneficial to the
property will be
included here)

Question 9

What does the Proprietorship register give?

Answer 9

Gives:
- the name and address
of the estate and owner
- the nature of the title
- date of registration
- any property
restrictions on
ownership
Also sets out the class
of the title

Question 10

What does The Charges register give?

Answer 10

Records any charges
over the property, such
as:
- rights of any
mortgagee
- a non‑owning
spouse’s interests
notifiable under the
Family Law Act 1996
- negative easements
and restrictive
covenants

Question 11

Explain the absolute title?

Answer 11

Where clear title is established. Absolute title is the most secure title there is
and the most desirable. It may be either freehold with good title, or leasehold
where the lease is for at least 21 years and both the freeholder and the leaseholder can demonstrate good title.

Question 12

Explain the Good Leasehold title?

Answer 12

Can apply only in connection with leases of more than seven years. It means
that the leasehold itself is good, but that the freehold title is in doubt or the
freeholder has not produced evidence of ownership to the Land Registry.

Question 13

Explain Possessory title?

Answer 13

Granted in situations where the applicant is unable to produce the title
deeds or other proof of title when the property is first registered, and can
apply equally to freehold and leasehold property.

Question 14

Explain ‘Squatters rights’?

Answer 14

Not a form of title, but can lead to the occupier gaining title to the land. It is
more accurately referred to as ‘adverse possession’, and allows people who have intentionally occupied land (or part of it) as their own for a certain time to claim title.
- Unregistered land -those who have been in intentional occupation of the land for 12 years with no objection from the legal owner may apply
for possessory title.
- Registered land -if registered land has been intentionally occupied for
10 years without objection from the registered owner, the occupier can claim title to the land.

Question 15

Explain Qualified title?

Answer 15

Very rare and occurs where there is some defect in the title as registered, and
so absolute or good leasehold title cannot be guaranteed. The title is given,
subject to any defect.

Question 16

Explain Registration?

Answer 16

Although not a legal requirement, transfers of registered land should be
registered within 30 days of completion. The 30 days is referred to as the priority period during which the new owner has priority over other claims and charges. Failure to register within 30 days could mean other interests may be
registered and take higher priority

Question 17

What is a Conveyancer?

Answer 17

Person whose job is to manage the process of transferring legal ownership
of property.

Question 18

What is Unregistered land?

Answer 18

Unregistered land is land that has not, since the introduction of compulsory
registration:
- been legally transferred; or
- had a lease exceeding seven years granted; or
- had a legal mortgage created upon it; or
- had rights entered over it.

Question 19

What is a Positive Covenant?

Answer 19

A condition of title imposed by an earlier owner stating what subsequent
owner‑occupiers must do.

Question 20

What is a Restrictive Covenant?

Answer 20

A condition of title imposed by an earlier owner specifying what an
owner‑occupier must not do

Question 21

What is a Title Guarantee?

Answer 21

A contract for the sale of a property states whether the vendor is selling:
- with full title guarantee;
- with limited title guarantee;
- with no guarantee.

Question 22

What rights and obligations are set out by a
mortgage deed?

Answer 22

The mortgage deed sets out the terms and conditions of the mortgage. As
part of the conditions, the deed stipulates the rights of the lender and the
borrower’s covenants – a number of things they promise to do, which the
lender can enforce if they fail to do so.