9. Consolidation

Question 1

In unregistered land when is the interest overreached?

Answer 1

if the purchase money is paid to a minimum of two trustees

Question 2

In unregistered land, if the interest is not overreached what applies?

Answer 2

doctrine of notice

Question 3

In registered land, when is the interest overreached?

Answer 3

if the purchase money is paid to a minimum of two trustees

Question 4

In registered land, if the interest is not overreached, how does this affect the purchaser?

Answer 4

A restriction will prevent the purchaser from being registered

Question 5

In registered land, under what legislation may the interest be overriding?

Answer 5

Under Sch 3, para 2 LRA 2002.

Question 6

How is a home right protected in unregistered land?

Answer 6

Class F Land Charge

Question 7

How is a home right protected in registered land?

Answer 7

By a notice in the charges register

Question 7

Can an unprotected home right take effect as an overriding interest and what is the reason?

Answer 7

It cannot take effect as an overriding interest

Because it has been specifically excluded from the effect of Sch 3, para 2.

Question 8

In unregistered land how is a legal easement protected?

Answer 8

its binding against the whole world

Question 8

In unregistered land, how is an equitable easement pre-1926 protected?

Answer 8

the doctrine of notice applies

Question 8

In unregistered land, how is an equitable easement post-1926 protected?

Answer 8

must be protected by registration of a D(iii) Land Charge

Question 9

What are the methods of creation of easements?

Answer 9

1. Express grant
2. Implied by necessity
3. Implied by common intention
4. The rule in Wheeldon v Burrows
5. Section 62 Law of Property Act 1925
6. Prescription

Question 10

How does an express grant create an easement?

Answer 10

where a document expressly grants or reserved an easement

Question 11

How can an easement be created by being implied by necessity?

Answer 11

the easement is essential for the land to be enjoyed for the specific purpose for which the parties have mutually intended

Question 12

What is the effect of the rule in Wheeldon v Burrows?

Answer 12

it elevated quasi easements to full easements on the sale of part of the land

Question 13

What are the elements that must be met in order for the rule in Wheeldon v Burrows to apply and elevate quasi easements to full easements on the sale of part of the land?

Answer 13

1. the quasi easement existed prior to sale;
2. the right is continuous and apparent
3. the right is necessary for the reasonable enjoyment of the land sold
4. the right is in use at the time of the sale

Question 14

What is the effect of Section 62 Law of Property Act 1925 on easements?

Answer 14

Automatically by law passes in title all existing easements attached to the land without the need for express wording in the conveyance provided

Question 15

What are the elements that must be met in order for Section 62 to apply in the creation of an easement?

Answer 15

1. There is a conveyance for the transfer of a legal estate
2. the right exists at the date of the conveyance
3. diversity of occupation between dominant and servient land;
4. there is evidence of prior use

Question 16

When does the burden of a freehold covenant only run in equity?

Answer 16

If the following requirements are met:

covenant must be negative + created to benefit dominant land + touch/concern dominant land + made with intent to burden servient land + notice to bind the owner of servient land

Question 17

What is the notice required for restrictive covenants for unregistered land?

Answer 17

Class D(ii) Land Charge

Question 18

What is the notice required for restrictive covenants for registered land?

Answer 18

Notice under s 32 appearing in the charges register.