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SQE1 FLK 2 > Tricky Concepts in Land > Flashcards

Tricky Concepts in Land Flashcards

1
Q

Which interests can be legal (or equitable)?

A
  • Mortgages
  • Easements granted for a term equivalent to a freehold or leasehold estate (i.e. forever or for a certain term.)
  • Rights of entry
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2
Q

Which interests can ONLY be equitable?

A

The equitable interests you will encounter are:

  • Freehold covenants
  • Estate contracts
  • Interests in a trust of land
  • Easements granted for an uncertain term
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3
Q

What are the formalities for a valid estate contract?

A
  • in writing;
  • contain all the agreed terms; and
  • be signed by both parties
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4
Q

What are the formalities for a deed?

A
  • intended as a deed;
  • validly executed by the seller; and
  • delivered, which is done by dating the document.
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5
Q

What type of document is needed to transfer land?

A

Deed

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6
Q

What are the 4 categories of proprietary right for easements?

A

Express legal
Implied legal
Express Equitable
Implied Equitable

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7
Q

What are the formalities for an express legal easement?

A

Created by deed
- clearly intended to be deed
- delivered (dated)
- signed by grantor and witnessed

Registered (if land is also)

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8
Q

What happens if you don’t meet the formalities for an express legal easement?

A

Could be an equitable interest as an estate contract

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9
Q

What type of easement is described as ‘inherently equitable’, and what are the formalities

A

Those for uncertain terms cause they can never be legal

Made in writing
Signed by grantor

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10
Q

What are the formalities for a failed express legal easement to become an estate contract?

A

Includes all expressly agreed terms

In writing

Signed by both parties

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11
Q

What happens if the formalities aren’t complied with for an inherently equitable easement (means one with an uncertain term)

A

No valid easement exists

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12
Q

What happens if a failed express legal easement does not meet the formalities for an estate contract?

A

There is no valid easement created

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13
Q

What is the difference in status between implied legal easements and implied equitable easements

A

Implied legal: easement is implied into a legal document and takes the status of that document

Equitable: Implied into a contract or equitable lease, then its implied

‘takes the status of the document it is implied into’

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14
Q

What is the process to determine whether something is a license or easement?

A
  1. Does it pass Ellenborough Park
  2. Is it disqualified?
  3. Was it acquired expressly, impliedly or by prescription
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15
Q

What are the 4 criteria in Ellenborough Park?

A

Dominant and servient tenement

Right must accommodate dominant tenement

Must be diversity of ownership

Right must lie in grant

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16
Q

What 3 criteria mean that a right ‘lies in grant’

A

Capable grantor to grantee

Capable of reasonably exact description

Judicially recognised

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17
Q

What rights of way have been judicially recognised as easements?

A

Of way

Of drainage/pipelines

Of support

Using sporting/leisure facilities

Use land for recreation

Storage

Parking

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18
Q

What are the disqualifying factors for being an easement?

A

Amounting to exclusive possession

Additional expenditure

Permission required each use

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19
Q

What are the 2 tests for exclusive possession?

A

Ouster principle (binding law)

Possession and control

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20
Q

Are the courts more likely to favour the person claiming the easement or defending against it?

A

Claiming

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21
Q

What are the 4 ways to impliedly acquire an easement?

A

Necessity

Common intention

Wheeldon v Burrows

LPA 1925 s62

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22
Q

When can an easement be implied by necessity?

A

When it is absolutely essential to make any use of the dominant land

Basically only landlocked, even access by boat would negate necessity

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23
Q

When will common intention be able to create an implied easement?

A

Land was sold/leased to another for a particular purpose

Purpose cannot be fulfilled without the easement

24
Q

When can you acquire an easement impliedly through Wheeldon v Burrows?

A

Has to be an easement claiming to have been granted (NOT RESERVED)

Was a quasi-easement before land was divided

Quasi-easement was continuous and transparent

Quasi was necessary for reasonable enjoyment

Quasi was in use by common owner at the date of transfer

25
Q

Why has LPA 1925 s62 become usable in similar circumstances as Wheeldon?

A

Because the prior diversity of occupation is no longer 100% necessary and it can now happen on a NEW sale like Wheeldon

Advantage is that claimants don’t have to show ‘reasonable use’ so it is easier

Wheeldon is still used if they need to imply an easement into an estate contract, because LPA 62 CAN’T EVER BE EQUITABLE ONLY LEGAL

26
Q

What are the s62 requirements to successfully argue an implied legal easement?

A

Is a grant

Prior diversity

Informal permission/license existed

Then there was a conveyance

27
Q

To use LPA 62 without prior diversity of occupation, what are the requirements?

A

Quasi easement

Continuous/apparent

Recent/regular exercise of the right

Physical evidence of the right

28
Q

When is an implied legal easements over registered land enforceable against a new servient owner?

A

Actual knowledge of new owner

Obvious on reasonably careful inspection of servient land

Exercised within a year before transfer of servient land

29
Q

When are express equitable easements over registered enforceable against new servient owner?

A

Always against grantor

Must be protected against new servient owners
- notice in charges register

Otherwise won’t be binding on purchaser for value

30
Q

When are express equitable easements over unregistered land enforceable against new servient owner?

A

Protected by Class D(iii) Land Charge

If not, won’t be binding on a purchaser for value

31
Q

When are implied equitable easements enforceable under registered and unregistered land for new servient owner?

A

They have to follow the same rules as express equitable easements
- notice in charges register
- Class D(iii) Land Charge

**vulnerable to defeat because nobody ever registers them

32
Q

When are easements enforceable between the OG parties?

A

Always, there is only a problem when there is a sale

33
Q

When are express legal easements enforceable against a new servient owner of unregistered land?

A

Legal interests bind the world

34
Q

When are express legal easements enforceable against a new servient owner?

A

They will always be, because to be legal they have to have been registered

35
Q

When are implied legal easements over unregistered land enforceable?

A

Legal interests bind the world

Will be an overriding interest on first registration

36
Q

What must happen for a covenant to pass in equity?

A

Both the benefit and burden have to pass with equity rules

37
Q

What must happen for a covenant to pass under common law?

A

Burden and benefit must pass with common law rules

38
Q

What is the general rule to covenants passing under common law?

A

Burden cannot pass to a successor

39
Q

How does burden pass in equity?

A

Rule in Tulk v Moxhay:

Covenant must be restrictive

Must accommodate the dominant tenement

Must be intention for the burden of the covenant to run (express or implied)

Must be notice of the covenant

40
Q

Under Tulk v Moxhay, to pass the burden of a covenant under equity, what 3 aspects make up the criteria that the covenant must accommodate the dominant tenement?

A
  1. Covenantee and successor must hold an interest in the land at the time of creation (covenantee) and enforcement (successor)
  2. Covenant must touch and concern the land
  3. Dominant and servient land must be near each other
41
Q

How can there be proper notice of the covenant to satisfy Tulk v Moxhay?

A

Registered land: notice in charges

Unregistered: class D land charge

42
Q

Can you mix the common law and equitable rules for passing covenants?

A

No – both benefit and burden must pass under 1 framework

43
Q

How does the benefit pass in equity? (2 criteria)

A

Covenant touches and concerns land

Benefit passes by:
- annexation (express/statutory)
- assignment
- building scheme

44
Q

How does express annexation happen, in order to pass a covenant benefit at equity?

A

Words of covenant make clear that benefit is intended to become part of the dominant land

45
Q

When will statutory annexation apply to make the benefit of a covenant pass in equity?

A

Unless expressly excluded in the OG wording, the benefit will pass (so long as it also touches and concerns the land)

46
Q

How does assignment occur to pass the benefit of a covenant at equity?

A

Each time the land is sold, the covenant itself is expressly transferred down the chain

47
Q

When will a building scheme be able to operate to pass the benefit of a covenant in equity?

A

All buyers from same seller

Seller divided estate into plots

Covenants were intended to benefit all plots

Each buyer buys understanding that the covenants are intended to benefit all plots

48
Q

In common law, since the burden can’t really pass, how is the covenant enforceable?

A

Against the OG covenantor always, just not the successor

Indemnity chain

49
Q

What set of rules can restrictive and positive covenants pass under respectively?

A

Restrictive: Both sets

Positive: only common law

50
Q

What is the common law rule exception that the burden of a covenant does not pass?

A

Doctrine of mutual benefit and burden from Halsall and Brizell

51
Q

How does the doctrine of mutual benefit and burden from Halsall and Brizell, operate?

A

When the burden is connected to the benefit

E.G., right to park, but you have to keep the parking spot free of debris

52
Q

What 3 conditions must exist for Halsall/Brizell to operate to pass the burden of a covenant at common-law?

A

Clear link between burden and benefit

Genuine choice as to whether to take the benefit

Benefit and burden were conferred in the same transaction

53
Q

In what 2 ways can the benefit of a covenant pass at common law?

A

Express and implied assignment

54
Q

What is the procedure to expressly assign the benefit of a covenant at common law?

A

Assign in writing

Give the covenantor notice

55
Q

What are the conditions to impliedly pass the benefit of a covenant at common law?

A

Touch and concern the land

Intention that the benefit should run with the dominant land (will exist unless was expressly excluded)

OG covenantee had a legal estate in the dominant land

Successor covenantee must hold a legal estate in the dominant land

SQE1 FLK 2 (19 decks)

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