Definitions and Basics Flashcards
(124 cards)
1
Q
What is real property concerned with?
A
Rights, interests and obligations which can exist over land
2
Q
What are the different states of rights and duties?
A
Created, enforced, assigned, extinguished
3
Q
What is a leasehold interest?
A
landlord tenant relationship
4
Q
Is a leasehold interest realty or personalty?
A
Personalty in law, but they are also recognised as interests in land, so they’re called chattels real
5
Q
Where is Land defined in statute?
A
Law of Property Act 1925
6
Q
What’s an example of a corporeal hereditament?
A
Physical items like land, buildings, minerals
7
Q
What’s an example of incorporeal hereditament?
A
Rights and interests like easements, rent, covenants
8
Q
If you have an easement over land belonging to another, what’s another term for that?
A
A right or interest in the land
9
Q
Does a beneficiary of a trust of land have an interest in the land?
A
Yes, although it may not be a legal interest. It is equitable.
10
Q
Rights are recognized…
A
At law
11
Q
Interests are recognized…
A
In equity
12
Q
Chattel is otherwise known as…
A
Personal property
13
Q
If an item is attached to the land, prima facie it’s…
A
A fixture
14
Q
What are the two factors for determining fixture vs chattel
A
(1) Degree of annexation (2) Purpose of annexation
15
Q
All freehold land in England and Wales is said to be held directly of the Crown in …
A
Socage tenure
16
Q
What are the two legal estates?
A
(1) Fee simple (freehold) and (2) Term of years absolute (leasehold)
17
Q
Why was the concept of commonhold land introduced?
A
To better understand/support blocks of flats/interdependent properties
18
Q
Land rights can be both…
A
tangible and intangible
19
Q
What is an interest in land law?
A
A right exercised in relation to the land belonging to another
20
Q
What are examples of legal interests?
A
Legal easement, mortgage
21
Q
What are examples of equitable interests?
A
Interests arising under a trust, interests under contracts to create/transfer legal estates or interests (like when you buy a home and you have equitable interest in the home before legal interest catches up)
22
Q
What’s the term for a fee simple estate
A
Perpetual in principle
23
Q
If a person dies intestate, without next of kin, who inherits their property
A
The Crown
24
Q
Is a lease a property right?
A
Yes
25
What are the two types of leases?
Fixed term and periodic tenancies
26
Can you create a lease for an indefinite period of time?
No, BUT you can set forfeiture clause which can allow you to break the lease before the term's end
27
What's a periodic tenancy?
Lease for one period, which extends automatically until landlord or tenant gives notice
28
In a mortgage, the role of the bank is as...
Mortgagee (bank lends the money, fee simple owner grants the mortgage)
29
What's a restrictive covenant?
Promise by one landowner in favour of a neighbouring landowner that they won't do something on their land.
30
In a restrictive covenant or easement, what are the roles?
Land restricted is servient (for easements, also appurtenant), land benefitted is dominant
31
What is an easement?
A right of one landowner to make use of another nearby piece of land for the benefit of his own land
32
What is a profit?
A right to go on someone else's land and remove from that land something that exists there naturally, like minerals, or hunting
33
Is a profit dominant or servient?
Frequently appears in gross/separate right not attached to dominant land
34
What did the Family Law Act 1996 introduce?
If a couple is ceremonially or civilly married, and one spouse has sole title to the home, the other spouse has statutory right to occupy the home (home rights)
35
If a married couple buys a home together, what's going on in that situation?
Both partners have home rights, and they both have a constructive trust interest in the home provided they made a substantial financial contribution
36
How is an option different from a right of first refusal?
An option is a valuable right provided in exchange for consideration; a right of first refusal is just an opportunity to refuse something
37
What are the two systems of conveyancing?
Unregistered and registered
38
What's unregistered conveyancing?
Title to land is provided by deeds
39
What's the downside of unregistered conveyancing?
Third party rights or interests aren't conclusive through deed (they're not legal interests)
40
If you have a 3P interest in an unregistered conveyance, what do you do?
Register through public notice
41
If you fail to register a 3P interest in an unregistered conveyance, what happens
Even if purchaser knows about the interest, the interest won't be enforceable
42
What is registered conveyancing?
Whole title to the land, incl most 3P interests, is registered (now compulsory for new purchases)
43
What are the two stages in conveyance?
(1) Exchange of contracts (equitable interest) (2) Completion (legal interest)
44
What's the only contract that *must* be made in writing?
Sale of land! LPMPA
45
Any interest that isn't one of the 5 legal interests is at best...
Equitable
46
What's the maximum number of trustees of the legal estate?
Four
47
Is there a limit to the number of beneficial owners of land?
No
48
What are the two forms of co-ownership?
Joint tenancy and tenancy in common
49
What is the co-ownership status of legal estate?
ALWAYS joint tenancy
50
What is the co-ownership status of beneficial estate?
joint tenancy or tenants in common
51
Can severance ever operate on the legal estate?
No
52
What is severance?
The process of separating the share of a joint tenant so that concurrent ownership will continue but right of survivorship will no longer apply.
53
What can rebut the presumption of joint tenancy?
(1) Parties use words of severance (2) One or more of the four unities is absent (3) Unequal contributions to purchase price (4) Purchase of property for business purposes
54
What are the four unities?
Authority: Common law concept
(1) Interest (2) Possession (3) Title (4) Time
55
How are shares determined in a tenancy in common?
If there's an express trust, they can define proportion of shares. If there isn't an express trust, the initial presumption is that shares are divided equally (Goodman, Bedson)
56
What's the main distinguishing feature of tenancy in common?
Each co-owner has right to distinct and identifiable share
57
Can will or intestacy supersede right of survivorship?
No
58
What's the main distinguishing feature of joint tenancy?
right of survivorship
59
What are the three necessary elements of a formal severance?
Has to be received by all other joint tenants (ie legal owners/trustees) AND wording must effect a severance (Goodman) AND it must be effective immediately (Harris)
60
Does divorce by itself sever joint tenancy?
No
Harris v Goddard: divorce and request for severance didn't have immediate effect, so JT wasn't severed
61
What are the three methods to severing joint tenancy?
Authority: Williams v Hensman
(1) Act of any one persons interested operating upon their own share
(2) Mutual agreement
(3) Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting tenancy in common
62
Does a mortgage operate as a severance?
Yep (Bedson)
63
Does a power of appointment operate in law or equity?
Equity
64
Define bankruptcy
liquidation by arrangement; or a corporation winding
65
Define conveyance
mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release AND every other assurance of property or of an interest therein by any instrument except a will
66
Define building purposes
erecting, improving, adding to, repairing of buildings
67
Define death duty
estate duty and every other duty reviable or payable on death
68
Define death duty
estate duty and every other duty revivable or payable on death
69
Define estate owner
owner of a legal estate, NOT an infant
70
Define incumberance
Legal or equitable mortgage
71
Define instrument
Not a statute, unless statute creates a settlement
72
Define land
Any tenure, and mines and minerals, buildings and other corporeal hereditaments, and other incorporeal hereditaments
73
Define legal estates
estates, interests and charge in or over land
74
Define legal powers
powers vested by a charge by way of mortgage
75
Define personal representative
executor or administrator who handles property of a deceased person
76
Can you have an oral severance of title?
No!
77
What is a lease?
An agreement creating an interest in land for a fixed period of duration, usually in consideration of rent
78
Is a lease a legal estate?
Yes - term of years absolute. LPA 1925 s.1(1). Carved out of the freehold estate.
79
What's the difference between a sublease and a headlease?
Headlease is an original lease. Sublease is the lease held by a sublettor.
80
What's the difference between the grant of a sub-lease and an assignment of tenancy?
It may not always be clear whether a lease has been assigned or whether a sub-lease has been granted. It is only an assignment of the lease if all the lessee’s interest in the lease for the whole of the rest of the term is transferred. Where a sub-lease is granted it is usual for it to expire not later than one day before the head lease comes to an end. Where a transfer purports to be an assignment, but is for a period of less than the remainder of the term, even if only one day less, it is not an assignment but a sub-lease.
81
What are the essential requirements for a lease?
A lease is an interest in land, which must demonstrate three essential characteristics:
(a) confer on the tenant an exclusive right to possess the land; AND
(b) be for a fixed ascertainable period; AND
(c) comply with the appropriate formalities
Payment of rent is not an essential requirement
82
What's exclusive possession?
Street v Mountford
Right to exclude all persons from the land, including the landlord who granted the lease
83
Which circumstances can defeat exclusive possession?
Westminster City Council v Clarke
Expressed to be personal to letter
Exclusive possession not intended
Room could be changed without notice
Could be required to share accommodation
Not allowed to invite guests
Employees could enter at any time
Provisions of agreement genuine and necessary
84
What are the formalities required for a lease?
Creation of a legal lease or assignment of a lease must be granted by deed (s52(1) LPA 1925)
85
What is the formality exception criteria for a lease of three years or less?
s54(2) LPA 1925
Term of three years or less
Takes effect in possession (immediately)
Best rent reasonable
No fine is taken (beyond rent)
86
How does an equitable lease arise?
Parties entered into an agreement for a lease, but didn't grant legal lease by deed
Parties attempted to create a legal lease but one of the formalities have not been complied with
87
How does an equitable lease arise?
Parties entered into an agreement for a lease, but didn't grant legal lease by deed
Parties attempted to create a legal lease but one of the formalities have not been complied with
88
Which case reinforces need for fixed, ascertainable duration?
Prudential Assurance v London Residuary Body (1992)
89
What's a lease for a fixed period?
Lease that comes to an end automatically at the end of the agreed term. No notice to quit is required.
90
What can terminate a lease for a fixed term?
Surrender
Merger
Forfeiture
Break clause
91
What's a periodic tenancy?
Express: Period of time that can renew unless notice to quit is provided
Implied: Did parties intend to create periodic tenancy
Period is calculated by reference to how rent is calculated, not paid
92
What kind of interest is a lease?
Proprietary interest
Can bind a future purchaser of the freehold estate
93
What kind of right is a license?
Personal right
Can only bind original parties
94
Can a lease be sold?
Yeah! A license cannot
95
How can leasehold covenants arise?
Expressly
Impliedly
Custom/practice
Statute
96
What's a covenant
Promise contained in a deed
97
What's a covenantor
Person making the promise (bearing the burden of the covenant)
98
What's a covenantee
Person to whom the promise is made (taking benefit of the covenant)
99
What's a positive covenant
Covenant requiring covenantor to do some act or incur some expense
100
What's a restrictive covenant
Any covenant which is not positive
101
What's a real covenant
Those that affect parties in their capacity as landlord or tenant. Must touch/concern the land
102
What's a personal/collateral covenant
Purely personal agreements or other promises that do not touch/concern the land
NOT A REAL COVENANT
103
What's privity of contract
Parties are in direct contractual relations
104
What's privity of estate
Tenure exists between parties
105
What is the dividing line between old tenancies and new tenancies
Landlord and Tenant (Covenants) Act 1995
Took effect 1 Jan 1996
106
What's express contrary intention
Original landlord agrees that original tenant will be release on assignment of the lease
107
What an indemnity covenant
Mitigates liability from original tenant
108
How can indemnity covenant arise
Express
Implied by statute
Implied under common law - Moule v Garrett
109
What is privity of estate (pre-1996)
Even if Landlord and Assignee have no privity of contract, they have privity of estate because there is tenure
Privity of estate arises where there is a current relationship of landlord and tenant between the parties to a legal lease.
110
What is the working test for whether a covenant touches/concerns the land?
P&A Swift Investments
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.
111
What's indemnity
Security or protection against a loss or other financial burden
You can seek to recover sums paid as a result of a lawsuit by making a claim on the indemnity
112
What's reversion
If you have a right in land that will revert to you after a lease term ends, you own a reversion.
113
Is there privity of contract or estate between a sub-tenant and a head landlord?
PRE1996
Nope. But a sub-lessee will be bound by restrictive covenants in the headlease of which he has notice (Tulk v Moxhay).
114
What is an Authorised Guarantee Agreement
An AGA is an agreement between the landlord and outgoing tenant under which the tenant guarantees that his assignee will comply with the covenants in the lease.
115
When can an AGA be required
(1) the tenant is released via assignment
(2) there is a covenant against assignment in the lease; and
(3) the landlord’s consent is given subject to a lawfully imposed condition that the outgoing tenant give an AGA (i.e. either because it is reasonable to do so or as a condition of a commercial lease)
116
What are remedies for breach of contract?
a. Damages
b. Specific performance
c. Rescission - optional remedy
d. Rectification
e. Injunction
f. Declaration
117
What are the three types of covenants?
Express, implied, usual
118
What are the typical express tenant covenants?
Rent, repair, alterations, alienation, insurance, user
119
What are the typical implied landlord covenants?
Quiet enjoyment, not to derogate from grant, fitness for purpose
120
What is a typical express landlord covenant
repair (exterior)
121
What are typical implied tenant covenants?
Paying rent, rates and taxes; allowing landlord to enter/view/repair estate if they're under express/implied obligation to do so; not to commit waste
122
What are the three alienation covenants
Absolute (total prohibition), qualified (prior consent required), fully qualified (prior consent required, won't be unreasonably withheld)
123
What are the remedies for non-payment of rent?
Sue for repayment of debt; forfeiture; contractual remedies
For commercial premises, they also get Commercial Rent Arrears Recovery (CRAR)
124
How can a landlord seek forfeiture for breach of covenant other than for non-payment of rent?
File s.146 LPA 1925 notice
Prove breach isn't remediable (Expert Clothing) or it is causing irremediable harm (Rugby School)
