Tutorials 1 - 4 Flashcards
Proprietary rights definition
NOT COMPLETE
Personal rights definition
NOT COMPLETE
Proprietary rights in land
NOT COMPLETE
The estates: Freehold and Leasehold
Below Ground/Mines and minerals
Areas below ground generally belong to the owner of the land above, in principle a conveyance of land carries with it all that is beneath the surface.
By statue some minerals belong to the state
Infrastructure Act 2015, s43 states there is no trespass below 300 metres so no need for the consent of the freehold owner
Airspace
LOWER: If a structure overhangs then it is trespass regardless of damage. Court can grant injunction or damages
UPPER: The Civil Aviation Act 1982, s 76(1) grants immunity from trespass or nuisance for any flight of an aircraft “at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable”
Bodies of Water
The sub-soil beneath the water belongs to the owner of the land where the water stands. If the river is a boundary between plots of land, then the adjacent owners own up to the middle line.
Treasure
Combination of the Treasure Act 1996 s 1 and the Treasure (Designation) Order 2002 now include:
(a) more than two prehistoric objects objects in the same find (other than coins), which is a part base metal
(b) any object (other than a coin) which is of prehistoric date and any part of which is gold or silver.
Objects found on land
The finder may keep the property found, unless the landowner ‘before the chattel is found … has manifested an intention to exercise control over the land and the things which may be upon it or in it’ (Parker v British Airways Board [1982])
Objects found within or attached to land
Landowner has rights.
Possible Owners of Objects found on Land
- The original owner
- The Crown (If Treasure)
- The Landowner (If objects was in/attached to land, or if they had previously manifested an intention to exercise control over the land)
- The Finder
Produce of the Land
Natural products of the soil, for example grass, timber and fruit from fruit trees are treated as land. Annual crops requiring the expenditure of human effort and labour on a regular basis are excluded.
Distinguishing between fixtures and chattels
Two Tests:
The degree of annexation and the purpose of annexation
Two Legal Estates in Land
The freehold (fee simple absolute in possession); and the leasehold (the term of years absolute)
The stages of acquisition of a freehold
Exchange of contracts
Completion
Registration
(freehold) Formalities for the Contract stage before 26th September 1989
No requirements for validity. But requires ONE of the following for enforceability:
- the contract is in writing and signed by the party against whom the contract is being enforced
- there is an existing written record of an oral which must be signed by the party against whom the contract is being enforced.
- the contract is oral but the party seeking to enforce the contract has done some act of ‘part performance’
(freehold) Formalities for the Contract stage after 26th September 1989
LP(MP)A 1989, s 2: All three of the following requirements must be satisfied to have a valid contract: 1. the contract must be in writing
- it must contain all the expressly agreed terms
- it must be signed by both parties
(freehold)Exceptions to Formalities for the Contract stage
LP(MP)A 1989, s 2(5), exempts from the formality requirements:
(a) a contract to grant a lease for < three years, which takes effect ‘in possession’ (i.e. immediately)
(b) contracts made at public auctions
(c) Some contracts regulated by the Financial Services and Markets Act 2000
(d) the creation of resulting, implied or constructive trusts
(e) Some agreements are upheld rue to proprietary estoppel
Remedies for breach of contract
Damages
Specific performance
Injunction
(freehold) The Completion Stage
Occurs by way of a deed.
A legal estate must be conveyed or created by deed: LPA 1925, s 52(1). The requirements of a valid deed are set out in LP(MP)A 1989, s 1. (it makes it clear that it is a deed, it is validly signed in the presence of witnesses who also signed, and is delivered)
Some exceptions:
- ‘Operation of law’ is where property goes to, or ‘vests in’, another automatically e.g.
- Upon death, the deceased’s land vests in his personal representatives, who then transfer the land to the heirs by ‘assent’ rather than by deed of conveyance or transfer.
Registration
In unregistered land, the legal title is transferred upon execution of the deed. The new owner must then register his ownership of the property on the land register within two months of completion, otherwise the legal title will revert to the seller (LRA 2002, ss 4 and 6).
In registered land, the legal title does not transfer until registration has taken place (LRA 2002, s 27(2)(a)).
Transactions triggering compulsory registration
Under LRA 2002, s 27 (where the land is already registered) and s 4 (where the land is currently unregistered):
(a) transfer of the freehold by sale, gift or court order;
(b) grant of a lease of more than seven years;
(c) assignment (transfer) of a lease of unregistered land with more than seven years to run;
(d) an assent of the freehold or a leasehold with more than seven years to run;
(e) the grant of a lease to take effect in possession more than three months after the date of the grant (i.e. future leases);
(f) a first legal mortgage of the freehold or of a leasehold with more than seven years to run.
Acquisition by Adverse Possession
A squatter may apply to be registered as proprietor after 10 years of adverse possession. Notice of that application is given to the true owner, who can easily defeat the application by objection, and who then has two years to evict the squatter or regularise his position. [LRA 2002, Part 9 and Sch 6]
Parts of a lease that must be present to comply with the general law regarding contracts
The parties; the premises; the rent; the duration of the lease; the date of commencement or the event on which the lease is to commence, if contingent; and any other material terms agreed by the parties
Essential Characteristics of a Lease
Certainty of Term and exclusive possession
Fixed Term
A ‘fixed term’ exists where the maximum duration of the arrangement is known from the outset
Periodic Term
An arrangement where the length of the term is not fixed in advance can still have a ‘certain term’ and therefore potentially be a tenancy
Problems with certainty of term
Tenancy at will
Tenancy at sufferance
Tenancy for Life
Formalities to create a Legal Lease exceeding seven years
- This must be created by deed, if it is to create a legal estate in the land: LPA 1925, s 52.
- Valid deed (is clear that it is a deed, signed in the presence of witnesses who also signed, is delivered) LP(MP)A 1989, s 1.
- Is Registered [LRA 2002, s 27(2)(b)(i)]
Formalities to create a Legal Lease exceeding three, but not exceeding seven, years
- This must be created by deed, if it is to create a legal estate in the land: LPA 1925, s 52.
- Valid deed (is clear that it is a deed, signed in the presence of witnesses who also signed, is delivered) LP(MP)A 1989, s 1.
Formalities to create a Legal Lease not exceeding three years
Short fixed term leases (those with a maximum term of three years); express periodic tenancies (where there is a tenancy agreement); and implied periodic tenancies have no formal requirements, yet they will still exist as legal leases. They need not be in writing: LPA 1925, s 54(2). Take effect as overriding interests.
Non-compliance with formalities
If a person fails to use a deed to create a lease of more than three years, and / or fails to register a lease exceeding seven years, there are two possible outcomes: there could be a legal periodic tenancy or an equitable lease
Formalities to transfer a legal lease
(a) A transfer of a legal lease is called an assignment. To be valid, the assignment must be:
(i) completed by deed, regardless of the duration of the lease itself or how long there is still to run: s 52 LPA 1925
(ii) registered in accordance with the LRA 2002, s 27(2)(a), if the lease has already been registered
(iii) registered for the first time if the lease has not already been registered but has more than seven years to run at the date of the assignment (LRA 2002, s 4(1)(a) and s 4(2)(b)).
(b) A contract to transfer a legal lease must comply with LP(MP)A 1989, s 2.
How do Equitable Leases Arise?
- Failed legal leases
- An agreement to grant a lease, i.e. an agreement that a lease will be granted/created in the future
- An agreement to transfer a legal lease, i.e. an agreement that a legal lease will be transferred in the future.
- Grantor only holds equitable estate
Protection of Equitable lease against a new landlord
Equitable lease is not automatically binding on a new freehold owner.
Can protect his interest under the Land Registration Act 2002, by entering a notice on the charges register of the substantively registered freehold title
Formalities for the assignment of an equitable lease
An assignment (transfer) of an equitable lease should comply with the minimum requirement laid down in LPA 1925, s 53(1)(c) (see para 4.1.2 of these study notes). A contract to transfer an equitable lease should comply with LP(MP)A 1989, s 2.
Disadvantages of an Equitable Lease
Specific performance
Enforceability against 3rd parties
Not a ‘conveyance’
Enforceability of leasehold covenants
Commonhold
Falls somewhere between freehold and leasehold. A system of ownership and management of multiple interdependent properties e.g. a block of flats. Technically a commonhold is not a separate estate from freehold.
Legal interests in land
An easement, right, or privilege. A rent charge. Legal mortgage. Any other similar charge on land which is not created by an instrument. Rights of entry.
Formalities for the creation of Legal Interests
It must be capable of existing, listed within the LPA 1925, s1(2).
It must have been created in the recognised manner to be legal, i.e. by deed (LPA 1925, s 52(1)).
The transfer of Existing Legal Interests
The interest could simply be assigned (transferred) to the successor. To be a valid assignment, the transfer must comply with the LPA 1925, s 52.
Failed transfer deed -> interest cannot be transferred as a legal interest, but equity and transfer the interest in equity, for this the ‘failed’ deed to fulfil the requirements for a valid contract (LP(MP)A 1989, s 2: in writing, all terms, signed by both parties)
Types of Equitable Interests in Land
‘All other estates, interests, and charges in or over land take effect as equitable interests’ (s1(3) Law of Property Act 1925).
- Inherently equitable (restrictive covenants, beneficial interest under a trust, Estate contracts (option to purchase, right of pre-emption))
- Grantor only holds an equitable estate in land
- Failed legal interest
Formalities for creating new equitable interests NOT COMLETE
The formalities required will depend on the type of interest:
(a) Interests which are not listed in LPA 1925, s 1(2) must satisfy the minimum requirement for creating an interest in land under LPA 1925, s 53(1)(a): In writing and signed by the creator. This category includes all restrictive covenants and those easements which have an uncertain duration, not equivalent to a freehold or leasehold term.
(b) equitable interests under express trusts of land under LPA 1925, s 53(1)(b): manifested and proved by some writing signed by some person who is able to declare such trust or by his will
(c) Failed legal interests must satisfy the formalities for a contract where the subject matter is land, i.e. LP(MP)A 1989, s 2: in writing; contain all terms; signed by both parties.
There are some exceptions to the above requirements, notably the informal creation of resulting, implied or constructive trusts: LPA 1925, s 53(2)
Formalities for transfer of an existing equitable interest NOT COMPLETE
(a) The minimum formalities to be complied with are set out in LPA 1925, s 53(1)(c).
(b) However, if contracting to transfer an equitable interest, this would require a valid contract (i.e. compliance with LP(MP)A 1989, s 2) and specific performance must be available, on the basis that equity sees as done that which ought to be done.
(c) Where the holder of an absolute title in an estate in land transfers his legal estate without mention of the equitable interest within the transfer deed, the new owner can rely on the provisions of the LPA 1925, s 62 to imply the equitable interest into the transfer (unless a contrary intention is expressed).
Distinction between Legal and Equitable Interests: Enforcement
Legal Interests: New landowner bound regardless of no knowledge. Owner of interest is secure.
Equitable Interests: New landowner is bound unless they are Equity’s Darling (Formerly, registration has stopped this). Once interest is lost, it is lost forever.
Distinction between Legal and Equitable Interests: Remedies
Legal Interests: Damages as a right, equity if appropriate
Equitable Interests: Remedies are discretionary
