Cases

Question 1

Williams v Hensman (1861)

Answer 1

Informal Notice of Severance

Three factors, considered in series

1. Act of operating on your own share
2. Mutual agreement (not oral)
3. Course of dealing

Question 2

Harris v Goddard (1983)

Answer 2

Formal Notice of Severance

Set forth in s36(2) LPA 1925

Severance must be immediate, align with the LPA. Divorce request insufficient.

Question 3

TSB Bank v Botham (1996)

Answer 3

Degree of Annexation - Chattel or Realty?

Is the item firmly affixed? If removed, would damage occur?

Is the item a permanent improvement to the land?

If removed, could room be used for relevant purpose?

Question 4

Street v Mountford (1985)

Answer 4

Exclusive possession is the right to exclude all persons from the land, including the landlord who granted the lease

Question 5

Prudential Assurance v London Residuary Body (1992)

Answer 5

A lease can only be a lease if it has a fixed/certain term.

If you need to have flexibility for a potential issue (e.g. road widening), insert a break clause.

Question 6

Moule v Garrett (1872)

Answer 6

Indemnity covenant - common law rule

If the original tenant is sued for breach of REAL COVENANT, he can claim indemnity directly from assignee in whom lease was vested at the time of breach

Question 7

P & A Swift Investments v Combined English Stores Group plc (1989)

Answer 7

Test for a real covenant

1. the covenant must benefit only the reversioner for the time being, so if separated from the reversion it ceases to be a benefit;
2. the covenant must affect the nature, quality, mode of user or value of the land of the reversioner; and
3. it must not be personal.

Question 8

Tulk v Moxhay (1848)

Answer 8

PRE1996

Even though a sub-tenant and head landlord have no privity of contract or estate, if a sub-tenant knows about a restrictive covenant in the headlease, he is bound by it.

Question 8

Baron Bernstein v Skyviews (1978)
CF
Bocardo v Star Energy UK (2010)

Answer 8

Skyviews: land owner has rights in airspace as needed for ordinary enjoyment

Star Energy: land owner has rights in subsoil. underground petroleum belongs to the Crown

Question 9

Elitestone Ltd v Morris (1997)

Answer 9

Bungalow resting on blocks was considered a fixture to the land because it could only be removed via demolition.

Question 10

Aslan v Murphy (No 1) (1989)

Answer 10

Retention of keys by landlord doesn’t preclude occupier from exclusive possession.

If keys are needed for services, that could preclude.

Question 11

Appal v Parncliffe Investments (1964)

Answer 11

Provision of services by owner was inconsistent with exclusive possession

Question 12

Drilling Fluids Ltd v Louisville Investment Ltd [1986]

Answer 12

When can landlord withhold consent to alienate property?

Landlord cannot refuse consent based on grounds that have nothing to do with L/T relationship

Landlord doesn’t have to prove their conclusions to refuse consent were justified as long as they’re reasonable

It may be reasonable for L to refuse consent because they don’t like proposed use of the land

If there’s a disproportionate benefit/detriment between L and T refusal of consent could be unreasonable

it’s a question of fact depending on all circumstances whether or not the landlord has been unreasonable. Onus of showing they acted reasonably is on the landlord.

Question 13

Goodman v Gallant [1986]

Answer 13

If a joint tenancy is severed, co-owners get equal shares at severance. The extent of parties relative contributions is irrelevant.

Question 14

Lace v Chantler (or Chandler) [1944]

Answer 14

Leases must be for an ascertainable term. A lease granted for the “duration of the war” is not a legal estate because it isn’t for a fixed term.

Question 15

Spencer’s Case [1583]

Answer 15

Assignee of lease assumes covenants provided (1) there is privity of estate between assignee and person enforcing and (2) covenant touches/concerns the land

Question 16

Expert Clothing Service and Sale Ltd v Hillgate House Ltd [1985]

Answer 16

Try to remediate first!

A breach will only be treated as being irremediable where the consequences of that breach cannot be put right or retrieved for the future.

Question 17

Rugby School v Tannahill [1935]

Answer 17

Just because tenant ceased criminal act did not mean breach was remedied; immoral use of land may be irremediable

Question 18

Scala House & District Property Co Ltd v Forbes [1974]

Answer 18

Subletting without permission is a once-and-for-all issue that can’t be remedied

Question 19

Central Estates (Belgravia) Ltd v Woolgar No 2. [1972]

Answer 19

If a landlord, knowing of a tenant’s breach of covenant, demands rent (even through a clerical error) they waive the right to forfeit the lease

Question 20

Duppa v Mayo (1669)

Answer 20

To forfeit a lease for non payment of rent, landlord must make formal demand at the premises, asking for exact sum to be paid before sunset

Question 21

Ashworth Frazer Ltd v Gloucester CC [2001]

Answer 21

it is reasonable for the landlord to withhold consent to an assignment that would necessarily involve a breach of covenant, but also withholding consent may be reasonable where the landlord apprehends that the proposed assignee intends to use the premises for a purpose objectionable to the landlord’s estate

Question 22

Burgess v Rawnsley [1975]

Answer 22

They had an oral agreement to sever the joint tenancy. Denning asserted that a common intention had been formed through the parties ‘course of dealings’ which in turn severed the joint tenancy. The other judges concurred.

Question 23

Mortgage Corporation v Shaire [2000]

Answer 23

Shaire’s husband took out a mortgage and forged her signature. When he died, bank wanted to have the house sold. S.15 TOLATA posed that the interests of the mortgagee were just one of four factors to be considered, and shouldn’t be weighted any more heavily than the interests of the children living in the home.

Question 24

Berkley v Poulett (1977) CF D'Eyncourt v Gregory (1866)

Answer 24

Berkley: Objects were chattels because it was clear they had been moved and they weren't affixed to the land D'Eyncourt: Objects were fixtures because they were attached to walls with no evidence of having been moved

Question 25

Birmingham Citizens Permanent Building Society v Caunt [1962]

Answer 25

The right for a mortgagee to possess the land from the moment the mortgage is created can be restricted by a term in the morgage deed that possession will not be taken whilst the mortgagor makes regular payments

Question 26

Cuckmere Co Ltd v Mutual Finance Ltd (1971)

Answer 26

Mortgagee's Duty Entitled to exercise power of sale not as trustee but for its own purposes Can accept best bid at poorly attended auction Can self preference Must act in good faith Seen as neighbour to mortgagor Must seek true market value of property

Question 27

Savva v Houssein (1997)

Answer 27

Leasehold Tenants fix property issues landlord should've fixed Landlord claims for breach of lease Courts rule in favor of tenants as beach was capable of remedy

Question 28

Thamesmead v Allotey (1998)

Answer 28

Freehold covenant Confirms Halsall v Brizell If successor in title doesn't want benefit, they don't assume corresponding burden

Question 29

Tulk v Moxhay (1848)

Answer 29

Freehold covenant - Burden *Only situation where burden can run with land in equity* 1. Covenant is restrictive 2. Covenantee owns land at the time of creation of covenant 3. Burden of covenant was intended to run with the land 4. Owner of servient tenement has notice

Question 30

Austerberry v Corporation of Oldham (1881)

Answer 30

Freehold covenant In common law, burden (whether positive or negative) cannot run with servient land Burden remains personal to original covenantor

Question 31

Smith & Snipes Hill Farm v River Douglas (1949)

Answer 31

Freehold covenant - Touch & Concern Touch and concern the land means the covenant is for the benefit of the covenantee's land and not for personal advantage

Question 32

Rogers v Hosegood (1900)

Answer 32

Freehold covenant - Express annexation If there is express wording that covenant should be annexed/become part of the land, as long as it is for the benefit of that land and land is named, that is acceptable

Question 33

Federated Homes v Mill Lodge (1980) cf Crest Nicholson v McAllister (2004) cf Roake v Chadha (1983)

Answer 33

Freehold covenant - Statutory annexation s.78 LPA 1925 = if covenant touches and concerns the land, and land is sold, covenant passes to successors Federated Homes upholds s.78 Crest Nicholson upholds and says you *must* identify dominant tenement Roake says contrary intention can rebut s.78

Question 34

Colls v Home & Colonial Stores Ltd (1904)

Answer 34

Easement - right to light Legal right to light must exist in relation to defined aperture Once established, must show that the right has been infringed. This means the light is below level required for ordinary purposes of inhabitancy or business.

Question 35

Colls v Home & Colonial Stores Ltd (1904)

Answer 35

Easement - right to light Legal right to light must exist in relation to defined aperture Once established, must show that the right has been infringed. This means the light is below level required for ordinary purposes of inhabitancy or business.Mo

Question 36

Moncrieff v Jamieson (2007)

Answer 36

Easement - right to storage - persuasive obiter Test is not whether servient owner is left without reasonable use of his land [Batchelor], but whether he retains possession and control of servient land

Question 37

Wright v MacAdam (1949) cf Grigsby v Melville (1972)

Answer 37

Easement - right to storage Wright: Storing coal in shed on landlord's land is easement Grigsby: D stored items in cellar at C's house - not an easement as cellar belonged to C and D was neighbour Issue of fact and degree

Question 38

Re Ellenborough Park (1956)

Answer 38

Easement test 1.There must be a dominant and servient tenement 2. The easement must accommodate the dominant tenement 3. Both tenements can't be owned/occupied by the same person 4. The easement must be capable of forming the subject matter of the grant 4a. Must be definite (issue for parking, storage) 4b. Needs to be within general nature of easements - can't create a duty 4c. Must have capable grantor/grantee

Question 39

Wheeldon v Burrows (1869)

Answer 39

Implied easement Sale of part of land and whether quasi-easements pass 1. Must be continuous and apparent 2. Must be necessary to reasonable enjoyment of land 3. Must be in use at time of sale OK for grant, harder for reservation. In that case, look for necessity.

Question 40

Wong v Beaumont Property Trust (1965)

Answer 40

Implied easement Law will imply grant or reservation of easement to give effect to common intention of parties with reference to manner or purpose of the land Must be definite and particular use

Question 41

Ward v Kirkland (1967)

Answer 41

Easement Continuous and apparent use is seen on inspection and is neither transitory nor intermittent

Question 42

London & Blenheim v Ladbroke Retail (1994) cf Batchelor v Marlow (2001)

Answer 42

Easement - right to park London & Blenheim: right to park recognised Batchelor: right to park can't be uncertain/vague/extra

Question 43

Bristol & West Building Society v Ellis (1996)

Answer 43

Mortgagee - possession Repayment to mortgagee has to be under a reasonable plan. Look to amount of repayment, length of time required, evidence that debt will be discharged

Question 44

Medforth v Blake (1999)

Answer 44

Receivership Receiver has a duty to try to pay interest and principle of secured debt and must manage business with due diligence.

Question 45

Halsall v Brizell (1957)

Answer 45

Freehold covenant Under common law, burden sticks with OG covenantor Exception: doctrine of mutual benefit and burden. Those who wish to take advantage of benefit to land must also comply with corresponding obligation

Question 46

Why is registered land important?

Answer 46

Mirror principle: register reflects reality Insurance principle: claim $ if title is deficient Curtain principle: no sensitive info, just the facts

Question 47

Wright v MacAdam (1949)

Answer 47

Implied easement s.62 LPA 1925 has legislative magic. This case confirms it. What is a license can be updated to easement. 1. There must be a conveyance - s.205 LPA 2. Must have diversity of ownership/occupation 3. Only applies to rights capable of existing as easements

Question 48

Hill v Tupper (1863)

Answer 48

Easement Where a right claimed facilitates business use of the land, the right may not constitute an easement. Question of fact/degree.

Question 49

Race v Ward (1855)

Answer 49

Easement Anything that involves taking away part of the land (except water) can't be an easement

Question 50

Palk v Mortgage Services Funding Plc (1993)

Answer 50

Mortgagee - sale v possession s.91(2) LPA - court can order a sale If mortgagor wants to sell property to repay mortgage debt that is OK under s.91 LPA

Question 51

Cheltenham & Gloucester v Krausz (1997)

Answer 51

Mortgagee - sale v possession s.91(2) LPA - court can order a sale If mortgagor wants to sell property, but property has negative equity and mortgagor can't make up gap in debt owed, court may not suspend possession order for sale

Question 52

China and South Sea Bank v Tan Soon Gin (1990)

Answer 52

Mortgagee duty No duty to exercise power of sale at any particular time, regardless of whether it occasions loss or damage to mortgagor

Question 53

Silven Properties Ltd v Royal Bank of Scotland (2004)

Answer 53

Mortgagee duty Limit of duty is to seek best price (Cuckmere) There is no duty to improve the property or increase the price

Question 54

Tse Kwong Lam v Wong Chit Sen (1983)

Answer 54

Mortgagee duty Mortgagee may sell to affiliate. They cannot sell to themself (Farrar)

Question 55

Farrar v Farrars Ltd (1888)

Answer 55

Mortgagee duty Mortgagee cannot sell to himself. They may sell to an affiliate company (Tse Kwong Lam)

Question 56

TSB Bank v Marshall (1998)

Answer 56

Co-ownership/TOLATA s14 request for sale - court ruled interests of mortgagee or chargee could take priority over other interests s15 has inclusive, not exclusive, list of factors to consider

Question 57

Re Evers (1980)

Answer 57

Co-ownership/TOLATA Family home purchased, couple broke up Man wanted to sell, court said purpose of acquiring the house (kids living there) could still be fulfilled

Question 58

Stack v Dowden (2007)

Answer 58

Co-ownership Example of circumstances where court decided that a presumed JT was rebutted

Question 59

What are the four unities

Answer 59

Time Interest Title Possession

Question 60

Four Maids Ltd v Dudley Marshall (1957)

Answer 60

Mortgage - s.87 LPA 1925 Mortgagee may take possession of mortgaged property as soon as the ink is dry

Question 61

Cheltenham & Gloucester Building Society v Norgan (1996)

Answer 61

Mortgagee - possession - s.36/s.8 AJA s.36 = court can stay proceedings if mortgagor can pay within reasonable period Norgan = reasonable period is time left in mortgage term. Depends on reason for arrears and whether difficulty was temporary or long term

Question 62

Lloyd v Banks (1868)

Answer 62

Unregistered title - notice Actual notice is when purchaser actually knows of interest

Question 63

Hunt v Luck (1902)

Answer 63

Unregistered title - notice s199(1) LPA 1925: purchaser is deemed to have notice of everything he would've known had he made reasonable enquiries Hunt: you must physically inspect land

Question 64

Kingsnorth Finance v Tizard (1986)

Answer 64

Unregistered title - notice Imputed notice - s.199(i)(ii)(b) If purchaser's agent acquires actual or constructive notice of an interest, the notice is imputed to purchaser

Question 65

Midland Bank Trust Company v Green (1981)

Answer 65

Unregistered title - non registration of land charge s.4 LCA 1972: if you don't register your land charge it's void Midland: having actual knowledge of interest is irrelevant - the interest has to be recorded

Question 66

Oak Cooperative Building Society v Blackburn (1968)

Answer 66

Unregistered title - name An abbreviated name is a legitimate version of a name Registration of fair approximation of correct name is OK

Question 67

Strand Securities Ltd v Caswell (1965)

Answer 67

Registered title - actual occupation Part 2 Sched 3 LRA 2002: guidance on when unregistrable interests of occupation can override Strand: must have (1) occupation and (2) interest in property

Question 68

Chhokar v Chhokar (1984)

Answer 68

Registered title - actual occupation Must have degree of permanence and continuity Temporary absences (hospital, holiday) do not destroy actual occupation