1. Land Law Flashcards
(160 cards)
1
Q
In which court and with whom did equity begin?
A
In the Court of Chancery - the court of the Chancellor.
2
Q
What is a writ?
A
An action in the royal courts.
3
Q
Which two Acts merged the law and equitable courts fully?
A
The Judicature Acts 1873 and 1875 (JA 1873/1875) created the Supreme Court of Judicature.
4
Q
What did s25 JA 1873 state as to whether common law or equity would prevail if there was a clash?
A
If there was a conflict between common law or equity, equity would prevail.
5
Q
Distinguish between the terms “common law” and “equity”.
A
Common law: establishes general rules which provide certainty
Equity: acts as a check and balance of common law.
6
Q
What does ‘Equity acts in personam’ mean?
A
Equity is used against a specific person, not a third party e.g. specific performance, contempt of court.
7
Q
What does ‘Equity will not suffer a wrong to be without a remedy’ mean?
A
When common law will not provide justice, equity will.
8
Q
What does ‘Equity follows the law’ mean?
A
Equity only intervenes where common law rules do not take an important circumstance into account. Otherwise, it follows the rules of common law.
9
Q
What does ‘He who comes to equity must come with clean hands’ mean?
A
If a claimant who is seeking an equitable remedy have not themselves acted in good conscience, the remedy may be refused.
10
Q
What does ‘Delay defeats equity’ mean?
A
If a claimant applies for an equitable remedy with a considerable delay, it may act as a defence for the defendant.
11
Q
What does ‘He who seeks equity must do equity’ mean?
A
A claimant must have acted fairly in order to receive an equitable remedy.
12
Q
What does ‘Equity is equality’ mean?
A
Equity presumes that everyone is equal and will split assets equally if they haven’t already been divided up.
13
Q
What does ‘Equity sees as done that which ought to be done’ mean?
A
Unlike common law, equity can force performance in the case of non-compliance by the defendant.
14
Q
What does ‘Equity looks to the substance and not the form’ mean?
A
This is where the language or form does not matter, it is the substance of what was intended that is taken into account. E.g. conversation had but no signatures.
15
Q
What does ‘Equity will not assist a volunteer’ mean?
A
The equitable courts will not give remedies to someone who has not given value for what they received/got something for nothing, e.g. a recipient of a gift.
16
Q
What does ‘Equity will not act in vain’ mean?
A
The equitable courts won’t interfere where it is pointless to do so, e.g. if the court can’t ensure that equitable remedies will be carried out.
17
Q
What is specific performance?
A
An order to the party of a contract to perform their obligations under the contract.
18
Q
What is an injunction?
A
An order to prevent a person from doing a particular act or thing (or requiring them to do something)
19
Q
What is rescission?
A
The setting aside of a contract.
20
Q
What is rectification?
A
The correction of a contract where the writing doesn’t represent what the parties to the contract had agreed.
21
Q
What is an account?
A
Where an investigation takes place around sums due from one party to another.
22
Q
What is the appointment of a receiver?
A
A person is appointed to preserve endangered property for its beneficiaries.
23
Q
How is a Form A restriction used to protect equitable rights?
A
It is placed on the proprietorship register to show that there is a behind-the-scenes beneficial interest, which needs to be overreached in order to remove it from the land.
24
Q
What is the purpose of overreaching?
A
To transfer a beneficial interest from the land to the sale proceeds, in order for the buyer to have vacated possession.
25
Does the law of England and Wales allow someone to own land absolutely?
No, you can only own rights to do things with, or on, your own land or with, or on, someone else’s land.
26
What is the doctrine of tenure?
It defined the quality of the landholding - either freehold or leasehold. It stems from the fact that the Crown owns all the land in England.
27
What is the doctrine of estates?
It defines the quantity of the landholding. It marks out the extent and duration of the rights over the land in question.
28
What are the three types of tenure?
Freehold, Leasehold or Commonhold
29
What is the difference between an estate in freehold and an estate in leasehold?
An estate in freehold is of indefinite duration.
An estate in leasehold is of fixed maximum duration.
30
What are the three types of freehold estate at common law?
The fee simple
The fee tail
The life estate
31
What is the fee simple?
‘Fee’ means the estate passes to one’s heirs on death. As the fee is ‘simple’ it means it passes to heirs generally.
32
What is the fee simple absolute?
‘Fee simple’ means it is passed to one’s heirs on death, generally.
Absolute means there is no (time or any other) limit upon the land other than there is a successor to the original fee simple holder who can take possession - it is not conditional or determinable.
This is equivalent to absolute ownership.
33
What is the fee tail?
A fee tail can only be inherited by specified descendants of the original grantee. This means it is less than a fee simple, which can be left to anyone.
34
Are fee tails still allowed?
No, estates in tail can no longer be created after 1 Jan 1997 according to Sch 1 Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996).
35
What will happen if someone tries to create a fee tail nowadays?
Any attempt at creating a fee tail will be deemed an absolute gift.
36
What is a life estate?
A life estate lasts only for the life of the grantee, known as the 'tenant for life'. It then reverts to the grantor once they die.
37
What does ‘pur autre vie’ mean?
For the life of another.
The estate ‘pur autre vie’ will end upon the death of the measuring life, e.g. A property granted to A for so long as B shall live, ends when B dies.
38
What does an estate ‘in possession’ mean?‘
‘In possession’ = A for life. A has a life interest in possession (including rent/profits) until they die.
39
What does an estate ‘in remainder’ mean?
‘In remainder’ = A for life, remainder to B for life. Once A dies, B is entitled to ‘what remains’ after A dies.
40
What does an estate ‘in reversion’ mean?
‘In reversion = A for life, granted by G. A has a life interest in possession and G would retain a fee simple in reversion. Once A dies, the estate reverts to G because they have not disposed of the whole of their interest nor stated where the land is to go after A’s death.
41
Why is this the following grant not possible? A for life, remainder to B in fee simple, remainder (for any estate) to C.
Because there is no remainder of estate left to give to C - B has the remainder in fee simple, which means it will then go down through B’s descendants. The remainder to C is void.
42
Out of estates in possession, in remainder or in reversion, which interests can only exist as equitable interests?
Since 1925, interests in remainder or reversion can exist only as equitable interest.
43
Out of fee simple, modified or lesser fees, fees tail or life interests, which interests can only exist in equity?
Since 1925, modified or lesser fees, fees tail and life interests can exist only in equity and must take effect behind a strict settlement or a trust of land.
44
What is a strict settlement and can they be created now?
The purpose of a strict settlement was to create successive interests that kept land in the settler's family. It has not been possible to create any new strict settlements since TLATA 1996.
45
What are words of limitation? Give an example.
An example of words of limitation would be ‘I grant my property to X for life’ will limit the grant to life. However, if the grant is not limited, the property will pass as fee simple, meaning the whole interest will pass to the grantee unless contrary intention appears in the conveyance.
46
Where in legislation does it state that a conveyance without any words of limitation shall transfer over the whole interest in land?
s60 LPA 1925
47
What is ‘real’ property?
Real property (realty) is property that is immovable, i.e. freehold land.
48
What is action taken against real property called?
Action taken for realty is called real action or action in rem (against the thing itself).
49
What is the difference between real action and personal action?
Real action is taken against the thing itself (action in rem), meaning anyone can take action against a property.
Personal action is taken against the person who had dispossessed the claimant rather than against the thing itself.
50
What is a hereditament?
A hereditament is real property passed to one’s heir on death.
51
What are chattels real?
Chattels real are leasehold properties. They used to be seen as personal property (hence chattels) but were then subject to real action/action in rem. In modern law, chattels real (leasehold) and realty (freehold) are treated basically the same way.
52
What are chattels personal and what are the two types?
Chattels personal are all personal property other than leasehold property. They can be broken down into choses in possession or choses in action.
53
What are choses in possession?
These are tangible objects, goods which have a physical existence and which are movable, for example, cars, furniture, books and clothes. Land is not a chose in possession.
54
What are choses in action?
These are intangible rights (but not relating to land, i.e. intellectual property) which do not have a physical existence and which can ultimately be realised only by a court action. Examples include debts, stocks and shares, patents, copyright and trademarks.
55
Distinguish between “personal” rights and “proprietary” rights.
Proprietary rights have the capacity to bind a buyer of the land, e.g. easements and leases.
Personal rights can only bind the person who gave the right, e.g. invite you over to dinner.
56
How is land defined under s205 Law of Property Act 1925?
Land of any tenure, mine, minerals, other corporeal and incorporeal hereditaments.
57
What is the difference between corporeal and incorporeal hereditaments?
Corporeal hereditaments are physical or tangible objects such as houses or garages.
Incorporeal hereditaments are intangible rights which a person may have over someone else’s land, for example an easement, profits a prendre or rentcharges.
58
What does cuius est solum eius est usque ad coelum et ad inferos mean?
He who owns the land owns everything extending to the heavens and to the depths of the earth.
59
What does quicquid plantatur solo, solo cedit mean?
Whatever is attached to the ground becomes a part of it.
60
The maxim ‘He who owns the land owns everything extending to the heavens and to the depths of the earth’ has some limitations. What are they? (Heavens)
Airspace (no action for trespass or nuisance at a reasonable height, depends on weather)
61
What are SUAs?
Small Unmanned Aircrafts, like drones.
Three categories, getting higher in risk: Open, Specific and Certified (most risky, same as a manned aircraft).
Open has three subcategories: flying over people (A1), flying close to people (A2) and flying far from people (A3).
62
The maxim ‘He who owns the land owns everything extending to the heavens and to the depths of the earth’ has some limitations. What are they? (Depths)
Annual crops (although natural products that don’t require labour can be included)
Mines & Minerals (coal, oil and natural gas is ruled by statute and gold/silver by the Crown)
Utility (statutory powers allow laying of pipes/tunnels)
Wild Animals (no owner, but landowner can hunt. Landowner owns dead ones)
Water (no owner, landowner can fish if not tidal, Water Resources Act 1991 - only some water can be taken/abstracted)
63
Who has the best title to an object found on a landowner’s land?
Objects found on the ground: The finder is entitled to possess the object against all except the rightful owner. =
1. Rightful Owner,
2. Finder,
3. Landowner - UNLESS landowner has ‘control test’, i.e. putting up notices saying that lost property belongs to them.
64
Who has the best title to an object found buried in a landowner’s land?
Objects found buried in the ground: The landowner is entitled to possess the object against all except the rightful owner,. =
1. Rightful Owner,
2. Landowner,
3. Finder.
This is because of the ‘heavens and depth of earth’ rule.
65
Is it easier to determine the outcome when an object is buried in or is attached to the land or if an object is found on the land?
Easier when an object is buried in or is attached to the land, as otherwise you have to rely on the uncertain control test.
66
What is the difference between a “fixture” and a “fitting”?
A fixture is attached to the land and a fitting is not attached to the land. The buyer has to pay for any fittings they want to keep, but not for fixtures.
67
What is the form that deals with fixtures and fittings?
The Law Society Fittings and Contents form - TA10.
68
What happens if the TA10 is not filled in or an object does not appear on it in regards to fixtures and fittings?
Two overlapping tests must be considered to decide whether an object is a fixture:
The degree of annexation test
The purpose of annexation test
69
What is the degree of annexation test?
The greater the degree of attachment of an object to the land, the more likely it is to be a fixture. E.g. If it is bolted to the floor, it is a fixture. If it is only held there by its own weight, it is a fitting.
70
If an object is fixed to the floor by something other than its own weight (using the degree test), is it definitely a fixture?
No, you also need to consider the purpose test.
71
What is the purpose of annexation test?
If the purpose of annexation is only so that the chattel can be enjoyed, despite how it is fixed to the land, it will still be a fitting. If the purpose is to enhance the land, the object will be seen as a fixture.
72
Would cinema seats count as a fixture or a fitting? Which test would you implement?
The tip-up seats fastened to the floor of a cinema were held to be fixtures because they were fixed for the permanent benefit of and as permanent equipment for the property. Annexation test, they enhance the land.
73
Would tapestries be counted as fixtures or fittings using the purpose of annexation test?
Tapestries in Leigh v Taylor [1902] were held not to be fixtures where they were tacked to a wooden frame which was itself nailed to the wall with two-inch nails, because the purpose of annexation was so that the tapestries could be enjoyed, not that they would become an integral part of the house.
74
Out of the degree of annexation test and the purpose of annexation test, which test is now the predominant test?
The purpose of annexation is now the predominant test.
75
If an object will cause damage to the property if it is removed, will it more likely be a fixture or a fitting?
It will more likely be a fixture.
76
What are the 3 types of removable tenant’s fixtures?
1. Trade fixtures (e.g. pub fittings, shrubs planted by a market gardener, petrol pumps at a garage)
2. Ornamental and domestic fixtures (e.g. chimney piece, ovens, ranges, fixed water tubs)
3. Agricultural fixtures (e.g. engine, machinery, fencing). Must be removed during tenancy or within two months of the end.
77
What is the rule around mortgagor (borrower) and mortgagee (lender) fixtures?
As between mortgagor (borrower) and mortgagee (lender), fixtures pass with the land to the mortgagee (lender), even though not mentioned in the deed, as do those fixtures which have been added later by the mortgagor (borrower) while in possession.
78
When can a deceased life interest tenant's PRs remove chattels annexed to the land by the tenant?
The chattels belong to the owner of the fee simple, but they can remove such fixtures as are removable by a tenant under a lease (e.g. the three heads of removable tenant’s fixtures).
79
What is the rule around executors of fee simple owners and devisee fixtures?
All fixtures pass with the land to the devisee (the person to whom the deceased fee simple owner left the land).
80
Define the following? (i) specific legacy, (ii) general legacy, (iii) demonstrative legacy, and (iv) residuary legacy
(i) specific legacy: specific item, i.e. my picasso painting
(ii) general legacy: unspecified item, i.e. a picasso painting
(iii) demonstrative legacy: general gift to be paid out of a specific fund, i.e. £500 from my Barclays bank account.
(iv) residuary legacy: the residual amount left after gifts have been paid out, i.e. my residuary estate.
81
What two ECHR rights are involved in property law? What kinds of rights are they?
First Protocol Art 1 ECHR: Protection of property
Art 8 ECHR: Right to respect for private and family life
Both of these rights are qualified rights and may therefore be interfered with by the state or public authority in a limited way.
82
What is the First Protocol Art 1 ECHR?
Art 1 is concerned with protecting peaceful enjoyment of possessions (land and personal property). (qualified)
83
What is Art 8 ECHR?
Art 8 protects the right to respect for private and family life and the home. (qualified)
84
What are the two legal estates in land under s1 LPA 1925? Define each one.
Freehold and leasehold.
85
What does it mean to say legal rights in land bind “in rem”?
Legal rights bind the world. If a person has a legal right over someone else’s land, that legal right will be binding on a subsequent buyer of the land.
86
Who is “equity’s darling”? Explain this phrase.
There is one category of person, affectionately known as “equity’s darling” (the bona fide purchaser), who will be able to take free of such rights. The following statement from Maitland’s Equity, defining equity’s darling, is therefore crucial:
“Legal rights are good against all the world; equitable rights are good against all persons except a bona fide purchaser of a legal estate for value without notice, and those claiming under such a purchaser”.
87
How many legal estates and legal interests can there be post 1925 (s1 LPA 1925)?
Two legal estates: Fee simple absolute in possession and term of years absolute.
Five legal interests: Easements, Rentcharges, Mortgages, Rights of entry, any other similar charge.
88
What if a right is not capable of being legal within LPA 1925?
It can only exist as an equitable interest (e.g. an interest not created by deed)
89
Can there be two estates existing on the same piece of land at the same time?
Yes, s1(5) LPA 1925 says that the fee simple absolute owner of land can grant a term of years absolute in the same piece of land.
90
How old do you have to be to hold a legal estate in land?
18 - s1(6) LPA 1925 states that a minor cannot hold a legal estate in land.
91
What does ‘inter vivos’ mean?
During their lifetime.
92
Does a person need to be in physical possession of the land in order to have a legal estate in it?
No, they do not. The extended definition of ‘possession’ in s205(1) (xix) LPA 1925 reads:
“Possession” includes receipt of rents and profits or the right to receive the same, if any.
93
Is there a requirement for a term of years absolute to be ‘in possession’?
No, so a lease granted to take effect in the future may still be a legal estate.
94
How is leasehold land defined?
A leasehold is defined as a term of years absolute.
95
A leasehold is defined as a term of years absolute. Can a lease be for a week or a month?
Yes. Although it is a term of ‘years’, it can be for a period less than a year.
96
What are periodic tenancies?
Weekly or monthly tenancies, which can also be a term of years. s205(1)(xxvii) LPA 1925.
97
What does the ‘absolute’ mean in the context of a term of years absolute?
Not a lot. Notwithstanding that a tenancy is neither a “term of years” nor “absolute” in the ordinary meaning of the words, for instance, a weekly tenancy liable to be forfeited for non-payment of rent, it can be a term of years absolute.
98
What is a lease granted to take effect in the future called and how many years in advance can it be?
It is called a reversionary lease and cannot be granted more than 21 years in the future, otherwise it will be void. s149(3) LPA 1925.
99
What is “commonhold”?
Commonhold is a third, hybrid way of owning land, made to meet the needs of flats or apartments where the owners are interdependent, e.g. retirement homes, business parks. This estate comes out of freehold. See Commonhold and Leasehold Reform Act 2002 (CLRA 2002).
100
Is commonhold a new estate in land?
No, a commonhold is one that is created out of an absolute freehold registered estate. No new estates in land could be created after the LPA 1925. It is registered at HMLR as ‘commonhold land’.
101
What is the owner of each individual unit called in a ‘commonhold’ and what are they registered as at HMLR?
The owner of each individual unit is referred to as the unit-holder and is registered as its freehold owner (s12 CLRA 2002).
102
What are the five legal interests under s1(2) LPA 1925?
Easements
Rentcharges
Mortgages
Any similar charge
Rights of entry
103
In which subsection of legislation do the five legal interests appear?
s1(2) LPA 1925
104
What is an easement?
An easement is a property right which one person has over another person’s land, e.g. rights of way, rights to run cables.
105
How long does an easement need to last for it to be legal rather than equitable?
It must last for a period equivalent to one of the two legal estates (forever or for a definite period of time). Otherwise it will be equitable.
106
What is a profit a prendre?
A profit a prendre is the right to take something from land belonging to another, such as timber or fish.
107
What is a profit in gross?
A profit in gross is an interest in land that can be bought and sold separately from the land itself. So, this profit exists in its own right.
108
What are rentcharges?
Rentcharge is a right to a periodic payment of money attached to freehold land. It is different to rent from a tenant to a landlord.
E.g. a seller would demand a lump sum payment as is usual, but would also reserve the right to a periodic payment of money which, being an interest in land, is capable of passing to the seller’s successors.
109
Can you create a new rentcharge?
No, s2(1) Rentcharges Act 1977 provides that no rentcharge may be created whether at law or in equity after 22 August 1977 (with exception). However, some developers can use them on freehold developments as a mechanism to secure the positive obligation to pay charges for the upkeep of communal areas, such as roads, parks and play areas.
110
What is a mortgage?
Gives the mortgagee (lender) the right to take possession of and sell the land if the mortgage is not paid.
111
What is the fourth legal interest: any similar charge?
s1(2)(d): and any other similar charge on land which is not created by an instrument.
112
What is a right of entry?
A right of entry is basically a forfeiture clause. It may be attached to a lease, allowing a landlord to forfeit the lease if, for instance, the tenant is in arrears of rent or has broken any other obligation.
113
What do equitable estates and interests bind?
There cannot be any estates in equity. All other estates, interests or charges in or over land take effect as equitable interests.
Equitable interests do not bind the world.
114
How is an equitable interest different to a legal interest?
Legal interests bind the world. Equitable interests do not bind the world.
115
What is the full definition of Equity’s Darling?
The bone fide purchaser for value of a legal estate without notice of the equitable interest.
116
What does it mean for a buyer to be ‘bone fide’ and how does it relate to whether a purchaser will be bound by equitable interests?
Bone fide means in good faith. This means a buyer is buying a legal estate with no notice of equitable interests and, therefore, will avoid those equitable interests.
117
What does purchaser for value mean and how does it relate to whether a purchaser will be bound by equitable interests?
The buyer needs to give consideration in order to buy a property free of equitable interests, e.g. ‘equity will not assist a volunteer’. It need not be adequate, i.e. as much as it is worth. Marriage consideration counts as valid consideration (as long as it relates to the future and not the past). N.B. a buyer can also be a mortgagee (lender) and lessee (tenant), who can take free of equitable interests.
118
What does ‘of a legal estate’ mean and how does it relate to whether a purchaser will be bound by equitable interests?
A legal estate owner takes priority over someone with a mere equitable interest. See Cave v Cave (1880), where a legal mortgagee (bone fide) took free of the equitable interests, but the equitable mortgagee (also bone fide) took subject to them. He was not a buyer of a legal estate and thus the first equitable interest to be created prevailed, that is, the interests behind the trust.
119
What are the three types of notice?
Actual notice
Constructive notice
Imputed notice
120
What is actual notice?
Actual notice is actual knowledge of the existence of an equitable interest. A suspicion from rumour or hearsay is not actual notice, but it could be constructive notice.
121
What is constructive notice?
Constructive notice is knowledge which you would have, had you made all the proper enquiries.
122
What are the three types of enquiry that need to be carried out on an unregistered title to get constructive notice?
1. check the seller’s title to land up to a good root of title
2. check any relevant registers showing rights adversely affecting the land
3. inspect the land and enquire of those in occupation.
123
Kingsnorth Trust Ltd v Tizard [1986] (constructive notice, wife)
In Kingsnorth Trust Ltd v Tizard [1986] a husband and wife were separated. The husband continued to live in the family home with the two children of the marriage; the wife visited the property only when the husband was away on business, although she did keep some of her belongings in the premises. The husband (as sole legal owner) mortgaged the property to Kingsnorth. Kingsnorth, through their surveyor, agreed to a prearranged inspection of the premises but never saw any sign of the existence of the wife and therefore made no enquiries of her. It was held that Mrs Tizard was in occupation, which need not be exclusive, continuous or uninterrupted. The presence of the children gave Kingsnorth constructive notice of the possible existence of a wife, who might have an interest in the house, and they should therefore have made further enquiries. For example, they should not have made a prearranged inspection but should have visited without warning.
124
What is imputed notice?
Imputed notice is the actual or constructive notice of an agent acting for a buyer. E.g. in Kingsnorth v Tizard, a surveyor, who knew that the wife existed, would be imputed to the buyer.
125
Which two pieces of statute have overridden the doctrine of notice?
Land Charges Act 1972
Land Registration Act 2002 (for unregistered land)
126
What is specific performance?
Specific performance is an equitable remedy where the court orders the defaulting party to carry out a contract relating to land. This is because land is unique and damages would not be suitable.
127
What is an injunction?
An injunction is an equitable remedy where an order is issued to stop a party from breaching a contract. There are two different types of injunction - a mandatory injunction (forcing them to do or undo something) and a prohibitory injunction (stopping them from doing something).
128
What is rescission?
Rescission is an equitable remedy that aims to put the parties back in the same position as they were before making a contract, by cancelling the contract
129
What is rectification?
Rectification is where a contract is changed to reflect the parties’ true intentions.
130
As well as the usual acceptance, consideration and intention to create legal relations, what must also be done in order for a sale of land contract to be valid?
It must be in writing.
131
Should a signature on a sale of land be witnessed?
No, it is not a deed.
132
What does s2 Law of Property (Miscellaneous Provisions) Act 1989 state?
Contract of sale must:
- Be in writing
- Incorporate all the terms as agreed (can be referring to another document)
- Be signed
If these aren’t followed, the contract will be void.
133
Which section of legislation states that contracts of sale must be in writing, incorporate all terms and be signed?
s2 Law of Property (Miscellaneous Provisions) Act 1989 / s2 LP (MP) A 1989
134
Do contracts relating to the sale of land transfer the ownership of the land itself?
No, that must be done by deed (TP1/TR1) and then on HMLR.
135
No, that must be done by deed (TP1/TR1) and then on HMLR.
No, exchanging contracts only means that the buyer now has an equitable interest in the land. Legal title remains with the seller, but the buyer has an estate contract (which creates estate at some future date).
136
What happens if a seller refuses to go ahead with completion after the contracts are exchanged?
The buyer can sue for damages for breach of contract and may be able to get specific performance.
137
What does s1(1) LPA 1925 state?
There are two legal estates in land:
The fee simple absolute in possession (freehold)
The term of years absolute (leasehold)
138
Which subsection of legislation states that there are two types of estate (freehold/leasehold)?
s1(1) LPA 1925.
139
What does s52 LPA 1925 state?
To be legal, the estate must be created by deed (typically TR1 or TP1).
140
Which part of legislation states that estates must be created by deed?
S52 LPA 1925
141
What is the one exception to a deed being required in order for a lease to be legal?
A lease taking effect in possession (immediately) for three years or less at market rent may be created in writing or orally (s54(2) LPA 1925). A tenant under such a short-term lease has a legal estate in land despite the lack of any formal creation.
142
How can a legal easement or profit be made legal?
To be legal, an easement or profit must be equivalent to one of the two legal estates (i.e. for a definite period or in perpetuity) and be by deed.
143
How can a legal rentcharge be made legal?
Must be equivalent to one of the two legal estates (a definite period or in perpetuity) and be by deed. The Rentcharges Act 1977 has now restricted the creation of new rentcharges.
144
How can a charge by way of legal mortgage be made legal?
To be legal, the charge must be by deed and expressed to be by way of legal mortgage.
145
How can a right of entry be made legal?
Rights of entry (a right reserved by a landlord in a legal lease) will be outlined in the lease agreement…?
146
Outline what the LPA 1925 states in s1(1), s1(2) and s1(3)?
Any interest which does not qualify as a legal estate under s1(1) LPA 1925 or legal interest under s1(2) LPA 1925 will be equitable (s1(3) LPA 1925).
147
What age do you have to be to hold an equitable interest in land?
Any age, it is only legal estates that need to be held by someone over 18.
148
What kinds of equitable interests are there?
- Beneficial interests under a trust
- Interests which do not comply with the required formalities (e.g. 21 year lease not created by deed, but is in writing, incorporates all terms and is signed, would be an equitable lease).
- An estate contract
- The benefit of a restrictive covenant.
149
What implies an estate contract on a registered and on an unregistered title?
Registered: a notice on the charges register
Unregistered: a C(iv) land charge
150
Where are estate contracts most common?
New build properties where there may be many months between exchange and completion.
151
Which section of legislation states the formalities of equitable interests?
s53(1) LPA 1925
152
What does s53(1) LPA 1925 state?
Equitable interests must be in writing.
153
What are the exceptions to s51(1) LPA 1925 (that equitable interests must be in writing)?
s53(1)(b) LPA 1925: A declaration of trust itself doesn’t have to be in writing but has to be evidenced in writing and signed by the person able to declare the trust or by their will.
s53(2): implied trusts (called resulting or constructive trusts) may be created purely orally.
s53(1)(c): When disposing of an equitable interest, this must be in writing and signed by the person disposing of the equitable interest or by their agent.
154
What is a deed according to s1 LP(MP)A 1989?
1. It must be in writing
2. It must make clear that it intends to be a deed.
3. It must be delivered as a deed (the person granting the interest must intend to be bound by the deed, i.e. the grantor signs the deed).
4. It must be validly executed as a deed by the parties to it.
155
What counts as valid execution of a deed?
Signed by the individual in the presence of a witness who attests the signature
Delivered by the individual (meaning the person executing it intends to be bound by it).
N.B. Signed can also mean signed for the individual by someone else with two witnesses attesting the signature. Also delivered s1(5) can also be done by an agent or lawyer of the individual acting on their behalf.
156
Summarise what s1 Law of Property (Miscellaneous Provisions) Act 1989 says about deeds?
Deeds must be:
1. In writing
2. Clear on its face that it intends to be a deed
3. Validly executed
a) Signed
b) Witnessed
c) Delivered
157
What is the status of electronic signatures on deeds?
Due to the pandemic, HMLR now accepts deeds signed using the Mercury signature process and deeds signed using witnessed electronic signatures.
158
What does s52(1) LPA 1925 state?
All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.
159
When does legal title move to the buyer in registered and unregistered conveyances?
In unregistered land, the legal title passes to the buyer immediately upon completion of the transaction, whereas in registered land the legal title does not vest in the buyer until it has been registered at HMLR.
160
In what circumstances will a deed not be required?
1. Assents, which must be in writing but need not be executed as a deed (s 36(4) AEA 1925).
2. Leases taking effect in possession for a term not exceeding three years at the market rent (s54(2) LPA 1925).
3. Disclaimers under Insolvency Act 1986 (s52(2)(b) LPA 1925). A liquidator can reject the asset on the basis that it will not be a benefit. A lease is often seen as onerous property (due to the rental costs) and is often disclaimed.
4. Surrenders by operation of law (s52(2)(c) LPA 1925). When the unequivocal conduct of landlord and tenant is inconsistent with the continuation of the tenancy. An example of this might be when the tenant hands back the keys to the premises and these are accepted by the landlord.
5. (Assured) leases and tenancies not required to be made in writing (s52(2)(d) LPA 1925).
