1) Nature of land Flashcards
(138 cards)
1
Q
Disinction between different types of rules applying to property
A
- Rules applying to real property
- Rules that apply to every type of personal property
2
Q
Who owns land?
A
The Crown owns all land as sovereign
3
Q
What do most people own in land?
A
- Right in land
- Responsibilities and duties in land-related relationships = property rights
4
Q
Key legislation relating to land?
A
- Law of Property Act 1925
- Land Registration Act 2002
5
Q
Rights in Land
A
- Can be proprietary or personal in nature
6
Q
Third Party
A
Is a new owner of the land burdened by the right in the context of land law.
7
Q
Proprietary Rights
Definition
A
Property rights in land can be enforced by an action in rem meaning that use or possession of the land can be recovered.
The holder of the right does not have to settle for damages if they are deprived of their right.
8
Q
Can a proprietary right be capable of enforced against a third party?
A
- Yes
- A proprietary right is also capable of being enforced against a third party
9
Q
If someone is deprived of a property right …
A
If someone is deprived of a property right, they do not have to settle for damages
10
Q
Personal Rights
A
Personal rights in land can be by a personal action for damages if the right is breached. Use (or occupation) of the right cannot be recovered.
Personal rights only bind the original parties. There is no recourse against a third party. A frequently encountered example of a personal right in land is a licence.
11
Q
What type of right in land is a licence?
A
A personal right
12
Q
List the rights that have a proprietary status
A
- The freehold estate
- The leasehold estate
- An easement
- A mortgage
- A restrictive convenant
- An estate contract
- A beneficial interest in a trust of land.
13
Q
What does the holder of a proprietary right have?
A
A right in land will have a right to occupy or use or restrict what can be done on the burdened land in some way.
14
Q
Is the right proprietary or personal?
A
Need to look at the
* Nature of the right
* Creation
* Protection of rights in land
To determine if they are proprietary or personal in circumstances.
15
Q
The nature of a right
Is the right proprietary or personal?
A
- Must satisfy certain substantive (definitional) characteristics
- Locked garage = not an easement
16
Q
The creation of a right
Is the right proprietary or personal?
A
- Need to look at the issue of formalities
- Most proprietary rights in land are subject to strict requirements as to the formalities for their acquisition / creation.
17
Q
Formalities
A
The rules and procedure that must be observed in order to validly create or transfer a proprietary right.
18
Q
The protection of a right
Is the right proprietary or personal?
A
- Is the right enforceable gainsta a third party… ie the new owner of burdened land
- If registered…
19
Q
Where are the substantive requirements of Easements laid out?
A
Re Ellensborough Park
20
Q
Who are proprietary rights enforceable against?
A
Third parties
in rem
21
Q
Who are personal rights enforceable against?
A
Enforceable against personal parties
in personam
22
Q
To be of proprietary status, a right must be:
A
- Be on the fixed list of rights which are capable of having proprietary status
- Comply with any substantive requirements for the right in question
- Comply with the formalities to creat the particular proprietary right
23
Q
Estate
A
A proprietary right of possession is called an estate in land
24
Q
What is ownership?
A
- A right to possess the land
25
What is the highest estate in land?
Fee Simple Absolute in possession = freehold
* Fee = capable of being inherited
* Simple = inherited by any heir
* Absolute = not liable to end prematurely
* In possession = current right to use and enjoyment of the property.
| LPA 1925 s1(1)(a)
26
How long does an freehold estate last?
Until the owner for the time being dies without heirs.
27
If the current owner dies without next of kin and without a will
* *bona vacantia*
* Estate reverts to the Crown
28
The owner of a freehold estate may grant a lesser estate....
* A lesser estate for a shorter period of possession
* = a lease
29
Leasehold estate
* The lesser estate granted is a term of years absolute *LPAA 1925 s1(1)(b)*
30
What is the residue of an estate after a lease has been granted
Freehold reversion
31
Commonhold
* A type of freehold
* New estate in land, created out of a freehold registered estate
* Designed to meet the need of interdependent properties (apartments and retirement homes)
* Commonhold association = freehold owner = responsible for maintaining the communal areas of rhe building
| [[=
## Footnote
**Commonhold and Leasehold Reform Act 2002**
32
Summary of freehold land
* *Fee simple absolute in possession*
* Equivalent to absolute ownership of land
* Lasts indefinitely.
* Land will only be subject to one estate of freehold
| **LPA 1925, s 1(1)(a)**
33
Summary of Leasehold land
* Terms of years absolute.
* Tenant = owner ofe leashold estate
* Lasts for a certain duration
* Granted out of the freehold estate, a piece of land may be subject to more than one of these estates.
34
An interest
* A proprietary right of limited use = an interest in land
* Does not give right to possess, but gives the interest holder the right to do something or restrict something on land.
* Capable of enforcement against third parties
* Can be recovered as an action *in rem*
35
Incumbrances
Interests in land are also sometimes referred to as incumbrances on an estate.
36
Where are the number of rights capable of being proprietary limited?
**LPA 1925 s1**
eg a licence which is a personal right
37
Legal and equitable rights
Distinguished in **LPA 1925 s1**
* s1(2) = legal interests
* s1(3) = equitable rights cpvered
38
Examples of legal interests
* Mortgages
* Easements granted for a term equivalent to a freehold or leashold estate (ie forever or for a certain term)
* Rights of entry
39
Examples of equitable interests
* Freehold covenants
* Estate contracts
* Interests in a trust of land
* Easements granted for an uncertain term
40
Mortgage
* Capable of being a legal interest.
* A bundle of rights granted over property in exchange for a loan of money.
* Rights include the right to possess and sell land in the event of default.
* **Borrower grants the morgage, not the lender**
| **LPA 1925, s 1(2)(c)**
41
Easement
* A proprietary right to use land which belongs to somebody else.
* These rights include the right to possess and sell the land in the event of default in the mortgage repayments.
* If an easement is granted for an uncertain duration, it is only capable of being an equitable easement **LPA 1925 s1(2)(a)**
42
Right of entry
* A right for a landlord to re-enter leased premises and end the leashold estate in the event of tenant default or some other specified event ocurring = *forfeiture clause*
* A rentcharge owner's right to hold the land if money owend is not paid
## Footnote
**LPA 1925 s1(2)(e)**
43
Rentcharge
* Very uncommon a legal right to receive a periodic sum paid by the owner of the land.
44
What are the most important legal interests in land?
* Mortgages and easements
45
Restrictive covenant
* A promise relating to the land
* They are **negative** in nature, preventing a landowner from doing something on their land.
* = an equitable interest
* Recognised as having proprietary status
## Footnote
**LPA 1925 s1(3)**
46
Estate contract
* Contractual right to a legal estate
* Equity will order specific performance of a contract to create or transfer a legal estate, because each piece of land is regarded as unique.
* This together with the maxim that *"equity sees what ought to be done"*
= equitable interest
47
Different estates contracts
* A contract to buy land
* a contract to grant a lease
* an option to purchase land
* a right of pre-emption
48
Interest in a trust of land
* A trust of land exists where one person (the trustee) holds property for the benefit of another (the beneficiary), where the trust exists there is a split in the legal and equitable title (ownership).
A piece of land may be placed in trust
* The beneficiary has an equitable interest in the land
* **Trustees and beneficiaries can be the same or different people**
49
Trustees
Hold the legal title
50
Beneficiaries
Hold the equitable title
51
Express trust
* A trust can be created expressly
* A piece of land is transferred to A to hold in trust for B
* A is the trustee - the legal owner of the land.
* B is the beneficiary and has an equitable interest in the land.
52
Implied trust
* A trust of land can be created impliedly
* A and B buy a house together, each contributing 50% of the purchase price
* The land is transferred to A only, A is the legal owner of the land.
* Equity recognises B's contribution and **implies a trust**.
* A and B are both beneficiaries. B has an equitable interest in the land.
53
Why is the distinction between legal and equitable interests important?
* **Remedies**
* **Enforcement** of interest against third parties
54
Remedies for a legal interest
* A legal interest will have a wide range of remedies available to them. eg*damages,*.
* No discretion to take into account merits of the case
**In addition**
* A number of equitable remedies may be available to them, although this will be subject to usual equitable principles.
55
Remedies for a equitable interest
* Not entitled to damages as a right.
* Remedies are entirely at discretion of the court.
56
Which interests can only take effect in equity?
* Restrictive convenant
* Interest in a trust of land
* Estate contract
57
Which interests can are capable of being legal?
* Mortgage
* Easement
* Right of entry
58
Transfer of title means....
Transfer of ownership
59
What are the ways that a transfer of freehold can be achieved?
* Sale
* Will
* Gift
* Opration of law - automatic transfer in certain situations (eg bankruptcy)
60
Formalities
What the owner of the estate has to do to transfer their land to a new owner.
High degree of formality
61
Sale of freehold
= three stage process
1) Exchange of contracts = *voluntary / not necessary, but common*
2) Completion of Deed = *necessary*
3) Registration = *necessary*
62
Pre-exchange of contracts
Before exchanging contracts
- Make enquiries before committing to a purchase
- Carry out searches of public registers and confirm ownership
- Ascertain any benefits and burdens
63
Exchange of contracts
* Binding contract, agreeing price and terms
* Become legally committed to buying / selling the land
* Pay a deposit
* Until the contract in entered into, both parties can pull out.
64
Contracts for the sale of land
* Must comply with **LP(MP)A 1989, s 2**
* The contract must be **in writing**
* Must contain all the **expressly agreed terms**
* Must be signed by **both parties**
65
Completion of the deed
* The deed = written legal document
* Unregistered = coveyance
* Registered = transfer
66
LPA 1925, s52(1)
* A legal estate myst be **transferred** or created **by deed**
67
Can exchange of contracts and completion take place at the same time?
Simultaneous exchange and completion in practice
68
Requirements of a valid deed
1. Clear on the face of the document that it is **intended to be a deed** - eg labelled as a deed
2. Must be **validly executed**
3. Must be **delivered**
| **LP(MP)A 1989, s1**
69
Valid Execution
* Valid execution means then the deed must be signed by the seller **in the presence of a witness**
* Witness must sign to **attest**
70
If the seller is a registered compny, it can execute the deed in one of several ways
* wo directors signing
* One director and a witness signing
* One director and the company secretary signing
* Affixing the company seal
71
Is there a legal requirement for a buyer to sign the deed?
* No, although both do tend to execute in practice
72
**Delivery** of a document
* Requires acknowledgement that a person entering into a deed intends to be formally bound by its provisions.
* Delivery takes place by **dating the document**, which the parties solicitors will do.
73
What is the standard form of a transfer deed?
a TR1
74
At what point does a buyer pay the balance of the purchase money to the seller?
At the point of completion
75
What does the sale of unregistered land trigger?
* Registerable event
* A legal requirement to register the land for the first time at the Land Registry
* **LRA 2002, ss4 and 6**
76
Registration
* Send the completed deed to the Land Registry
* Registered = title does not transfer until registration has taken place **LRA 2002,s27(1)**
* Unregistered land = title is transferred upon completion of the deed - must be registered within two months or the legal title will revert bacl to the seller **LRA 2002, ss4 and 6**
77
When does the title transfer for *registered* land?
Only once **registration has taken place**
| **LRA 2002,s27(1)**
78
When does the title transfer for *unregistered* land?
**Upon completion of the deed**
The new owner must register the land with the land registry **within two months of completion**, otherwise the legal title will revert back to the seller
| **LRA 2002, ss4 and 6**
79
Land registry
A national non-ministerial department which keeps a register recording who owns a piece of land in England and Wales
80
Formalities of land contracts?
* Contracg must be in **writing**
* It must contain **expressly agreed terms**, either contain or *by reference* eg to Law Soc standard conditions of sale
* It must be **signed by both parties**
## Footnote
LP(MP)A 1989, s 2
81
Can contracts be signed electronically?
Yes pursuant to the **Electronic Communications Act 2000**
If the parties agree a procedure
82
Can a land contract be varied?
Yes, but must comply with **LP(MP)A 1989, s 2**
| McCausland v Duncan Lawrie Ltd
83
McCausland v Duncan Lawrie Ltd 1997
* Parties tried to orally agree a variation to the agreed completion date in the sale contract
* Held that this was void
* Variations to **material terms** must comply with **LP(MP)A 1989, s 2**.
* No definition of a material term - but essential terms are considered material
84
What is the proprietary effect of a binding land contract?
* Pass an equitable interest in the land to the buyer, called an estate contract
| **Walsh v Lonsdale**
85
Walsh v Lonsdale
* Land contract given proprietary status in this case
* Based on maim *Equity regards as done that which ought to be done*
* Entered a seven year lease - failed to execute to create a legal lease
* Court found an equitable lease with the remedy of specific performance.
* Must have "clean hands" to obtain a remedy of specific performance.
86
A contract to create or transfer a legal property right, also creates....
A contract to create or transfer a legal property right, also creates **a remedy of specific performance**
87
Can a failedlegal estate/interests be recognised as an estate contract?
Yes, eg when parties tr to create a legal interest or esate but fail as not a valid deed
Courts would then recognise an equitable interest in land providing.
* There is a document complying with **LP(MP)A 1989, s 2**
* Remedy of specific performance is avialable
88
Enforceability of an estate contract
* An estate contract is a proprietary right in land, capable of binding and being enforceable against third parties.
* But must be **protected**
89
If the interest holder fails to protect the estate contract and the third party is a donee
A donee = someone who is gifted or inherits land
* They will be bound by a properly created estate contract, regardless of registration.
* Applies if registered or unregistered.
90
Remedies for breach of a land contract
* Damages
* Specific Performance / Injunction *(Equitable remedies - discretionary & determined by equitable principles)*
| Coatsworth v Johnson
91
Coatsworth v Johnson
* A landlord and tenant entered intl a contract for a lease of a farm
* Tenant moved in , but lease was not completed by deed
* The court would not recognise an equitable lease because the tenant had breached the term pf the contract, so the remedy of specific perfomrance was not available as did not come to court with **clean hands**
92
For an estate contract to be recognised as an equtiable contract....
* Must comply with **LP(MP)A 1989, s2**
* & Must be capable of **specific performance**
93
Compulsory land registration
* Unregistered land is sold for the first time since 1st Dec 1990
* = **first registration**, compulsory since 1 April 1998
* **Required by LRA 200 s4**
* Required by LRA 2002 s4
94
Triggering Events apply to ...
* ** Apply to registered and unregistered land**
* Requires the registration of unregistered land
* Triggers a requirement to update the register.
95
Voluntary registration of unregistered land
LRA 2002 s3, allows for voluntary registration of unregistered land
96
What are triggering events
*They trigger compulsory registration*
* Transfer of the freehold estate by **sale, gift or court order**
* Grant of lease for a term of more than seven years
* Assignment of a lease of unregistered land with more than seven years left to run
* An assent, vesting assent or vesting deed which is a disposition of the freehold or a leasehold with more than 7 years left to run
* The grant of a lease to take effect in more than three months after date of grant (ie future lease)
* A first legal mortgage of the freehold or of a leasehold with more than 7 years to ryn
97
What are the three principles that land registration was based on
1. The mirror principle
2. The curtain principle
3. The insurance principle
98
The mirror principle
Register should **reflect** all matters that the property has the benefit of and is subject to.
**Transparent simplicity**
This has never been fully recognised due to the existence of **overriding interests. **
99
Overriding Interests
An interest that does not appear on the register but will still be binding on the owner of the legal estate and any buyer of it.
**Unregistered interests which override registered dispositions**
100
The curtain principle
* Records ownership of the legal estate in the property
* If held in trust, need not be concerned with the beneficial or equitable ownership of the land = **behind the curtain**
* This information is kept off the title
= simplifies land conveyancing
101
The insurance principle
* Acuracy of the register is guaranteed by the state.
* Advantage of registered land.
* If an error with the register - it will becorrected and anyone who has suffered any loss will be compensated
* **State Indemnity**
## Footnote
**LRA 2002, sch8 para 1**
102
What classes of title are available?
* Absolute
* Qualified
* Good leasehold
* Possessory
103
Absolute
| Class of title
Best form of ownership
Land is only bound by interests registered on the title or overriding interests
104
Qualified
## Footnote
Class of title
Owner may be registered with a qualified title if someone has a title defect.
105
Good leasehold
## Footnote
class of title
This will be granted where LR is satisfied as to the title of the leaseholder only and not the freeholder.
Where the freehold title is unregistered and where the applicant fails to submit evidence of the freehold title when applying to register their leasehold title
106
Posessory title
## Footnote
Class of title
May be given by the LR where the applicant is in possession of the property or is in receipt of rents and profits and there is no other class of title to be given.
eg no title deeds to prove ownership, or the deeds have been destroyed.
Usually given to those with a claim under **adverse possession** of **squatters rights**
May mean that thrid party interests created before the date of first registration will bind the property even though these are not noted on the title
107
What are the implications of a posessory title?
May mean that thrid party interests created before the date of first registration will bind the property even though these are not noted on the title
108
What is the impact of failing to register a transaction?
* Then the transaction is not legally recognised
| **LRA 2002, s27**
109
Corporeal Heridatments
These are things physically attached to the land - called fixtures in practice
110
Incorporeal hereditaments
Are the benefit of any proprietary rights taht land has bit which have no physical susbtance.
If a piece of land has the benefit of an easement to park on the adjoininig neighbours land, this proprietary right is part of the land, and the benefit of it therefore passes with the land when it is sold.
111
Cuis est solum eius est usque coelum at ad inferos
* He who owns the land owns everything up to the heavens above and the depths below
112
Airspace
Owner's rights in airspace above their land are restricted to such height as is necessary for** the ordinary use and enjoyment of the land** and structures upon it.
= **Overhanging is likely to be trespass**, if within the height that you could utilise
113
Bernstein of Leigh (Baron) v Skyviews and General
* Above the height necessary for the use and enjoyment of the land and the structures upon it, **the owner has no greater rights than any member of the public**
114
What does the law distinguish between:
* The upper airspace
* The lower airspace - that portion of airspace which is necessary for the landowners ordinary use and enjoyment
115
Where does the lower airspace begin?
* The portion of the airspace that is **necessary for the reasonable enjoyment** of particular piece of land
116
The Upper Airspace
* Flying hundreds of feet above ground did not interfere with any use of land plaintiff may have.
* **The Civil Aviation Act** grants immunity from trespass or nusiance for any innocent flight of aircraft
## Footnote
Bernstein of Leigh (Baron) v Skyviews and General Ltd
117
Bernstein of Leigh (Baron) v Skyviews and General Ltd
* Flew over country house to take photographs
* Flying hundreds of feet above ground = did not interfere with use plaintiff might have had.
118
Lower airspace
* Structure overhanging your property = trespass irrespective of whether damage is caused
* Injunctions are a discretionary remedy - may award damages if adequate
## Footnote
Kelsen v Imperial Tobacco Co
Anchor Brewhouse Developments v Berkley House DockDevelopments
119
Kelsen v Imperial Tobacco Co
## Footnote
Airspace
Injunction was granted for removal of an advertising sign erected by the defendant which projected into the airspace above the plaintiffs shop by a few inches.
120
Anchor Brewhouse Developments v Berkley House DockDevelopments
## Footnote
Airspace
The jib f a crane trespassed in the airspace above the claimaints property and an injunction was granted.
121
**Read Laiqat v Majid**
122
Grigsby v Melville
## Footnote
Ground below
Cellar owned by the claimant even though accessible only from next door.
General rule landowner owns everything beneath the surface
123
Exceptions to the principle the landowner owns everything beneath the surface
* Not entitled to all minerals.
* Gold and silver belongs to the crown
* Treasure belongs to the crown **Treasure Act 1996**
* Coal belongs to the Coal Authority **Coal Act 1938**
* **Infrastructure Act 2015 s43** No trespass at depths below 300m and therefore no need for the consent of freehold owner for deep level drilling
124
The statutory definition of land includes:
* Surface of the physical land, buildings on the land, fixtures and the beenefit of any easements
125
Fixtures - LPA 1925
Definition of land includes **"other corporeal ereditaments"** ie things attached/fixed to the land
126
Maxim for fixtures
Whatever is attached to the land becomes part of the land
127
The legal issue when determining fixtures?
Determining when a chattel becomes fixed to the land.
How do we determine if an item is a fixture.
Issue is particularly relevant when land is being sold
128
The legal test for determining fixtures or chattel
1) Degree of annexation test
2) Purpose of annexation test
**Degree of annexation test raises a presumption, that the thing in question is or is not a fixture, this presumption can then be rebutted by objectively looking at the purpose**
129
1) Degree of annexation test
## Footnote
Fixture or chattel
* How the objext is fixed / attached to the land / buildings.
* More firmly fixed, the more likely it is to be classified as a fixtrue.
* Even if fairly easy to remove - *prima facie* a fixture.
* If object rests on land by its own weight = generally considered to be a chattel
130
2) Purpose of annexation test
## Footnote
Fixture or chattel
* Why the object is attached to the land / building
* Annexation was for more convenient use or enjoyment of the chattel, or to enhance the land or building in some way.
* **This test takes priority over the degree of annexation test**
131
Botham v TSB Bank plc
## Footnote
Chattel or fixture
* Mortgagee took posssession of flat and sold it incuding contents.
* If the item is **intended to be permanent** and **to afford lasting improvement to the building**, the thing will have become **a permanent fixture.**
* If the **attachment is temporary** and **no more than necessary** to enjoy the item, then it will remain **a chattel**
132
Examples of chattels
* Ornamental items
* Carpets and curtains
* Light fittings
* Kitchen appliances = white goods
133
Examples of fixtures
* Items installed bu a builder
* Bathroom fittings
* Kitchen units
134
D'Eyncourt v Gregory
| Chattels or fixtures
* A stone garden seat and ornamental statues standing on their own weight were held to be fixtures = part of the architectural design
* **If part of the architectual design of a building then may be classified as fixtures, even though they are not firmly affixed**
135
Leigh v Taylor
## Footnote
Chattels or fixtures
* Tapestry was securely tacked
* Purporse was merely to display and enjoy tapestry
* Not held to be a chattel
136
Elitestone Ltd v Morris
## Footnote
Chattels or fixtures
* Wooden bungalow resting on concrete pillars
* Held to be **a fixture because in order to remove it from the land it would have had to be demolished**
137
How does sale of chattels and fixtures work in practice
* Conveyance of land automatically includes all fixtures in the property
* Unless items are specifically excluded from the sale in the contract under the property
* If the contract is silent and does not specifically exclude any items from sale, seller may not remove a fixture after contracting to sell
138
How would a buyer and selelr agree what items are to pass and not to?
By completing a Law Society Fixtures and Contents Form **(Form TA10)**
