FLK2 Flashcards
Fixture and fitting
Fixture is an object affixed or annexed to land or a building in such a way that it becomes part of the land or building
Fitting is an object on land which does not become part of the land but which remains a separate chattel.
Test to determine if something is a fixture
- Degree of annexation: the greater the degree of attachment to the land, the more likely the item is a fixture. If the thing is so firmly affixed with nails, screws or the like that the structure will be damaged if the item is removed, it’s likely to be a fixture.
- Purpose of annexation: whether the owner intended to make it a permanent part of the land
Estates and interests in land
- The Crown owns all land and people can only own an estate in land.
There are 2 legal estates which give holders a possessory interest: - freehold estate (fee simple) - ownership of the land for an uncertain duration
- leasehold estate (a term of years) - and estate with a fixed maximum duration
How can a legal interest in property be created?
Only by deed which must be:
-in writing
-clearly intended to serve as a deed
-signed in the presence of a witness and signed by them as well
-delivered
5 categories of legal interests
- mortgage
- easement: right of use another person’s land (the servient tenement) to benefit another piece of land (the dominant tenement)
- rentcharge: an interest in land requiring the landowner to make a periodic payment in response of land to the rentcharge owner
- profits a prendre: interest in land enabling someone to take something from the land of another (timber, fish, etc)
-profit a prendre appurtenant: a right attached to a second parcel of land in the same way as an easement (right to take fish)
- profit a prendre in gross: profit is owned personally by the profit holder and exists independent of ownership of a second parcel - right of entry: reserved in a leasehold or rentcharge contract to enter the premises
When an equitable interest may arise?
If there is an attempt to create a legal interest by deed, but it fails because the deed formalities weren’t met.
Equitable interest isn’t binding on a third party who purchasers the legal estate for the value and didn’t have notice of equitable interest.
A buyer of land: is he bound by legal and equitable interest?
Legal interest: yes, irrespective of whether they are aware of them
Equitable: only if the buyer is aware of them
Where to find any legal interests if unregistered?
If unregistered: property deeds or by physical inspection
What is needed for equitable interest to be enforceable?
It must be registered on the Land Charges Register
5 classes of the UNREGISTERED land charges register
- C(i) puisne mortgage: a lender with a first mortgage usually takes possession of the property deed to secure the loan. If a second lender takes a mortgage, they can’t take the deed (it’s already taken) so they must register their mortgage as a second legal charge.
- C(iv): estate contract registration
- D(ii) restrictive covenant registration
- D(iii) equitable easement registration
- F -non-owning spouse or partner registers their statutory right of occupation IF UNREGISTERED. IF REGISTERED: NOTICE!!!
If an equitable interest isn’t registered, a purchaser will be subject to the equitable interest if they have other actual, constructive or imputed notice. What are they?
- Actual: if they know of the interest themselves
- Constructive: if they would have discovered the facts after making reasonable enquiry
- imputed: if notice has been given to their agent.
What interests can override first registration?
- Lease less than 7 years
- Legal easement
- Local land charge
- Interest belonging to a person in actual occupation of the land
Title to land can be lost through adverse possession if someone can show what?
-they have actual, physical and exclusive possession of the land for at least 10 years
-Without permission of the landowner
What will trigger an application for first registration and what’s the timeframe to make the application?
-A conveyance on same of freehold land
- a deed of gift
-an assent
- a grant of a lease for more than 7 years
- an assignment on sale of a lease having an unexpired term more than 7 years
The application must be made within 2 months.
Consequences for not doing the first registration within 2 months
The transfer of the legal estate becomes void and it reverts to the seller. The costs of remedying the failure to register fall on the party in default.
Each parcel of land which is registered has a unique title number, and HMLR issues a Title Information Document which includes a proprietorship registered specifying 5 possible classes of the deed
- Absolute freehold: takes the legal estate with all interests subsisting for the benefit of that estate
- qualified: a specified interest is excepted from the effect of registration
- possessory: based on factual possession of the land rather than doc evidence
- good leasehold: freehold title has not been produced to HMLR on application to register the lease
- absolute leasehold: HMLR inspected all superior leasehold titles and the freehold title
What estates can be substantively registered? Meaning registered with their own title and register
- Estates in land - freehold and leasehold
- rentcharges
- franchises
- profits a prendre in gross
Title information document is divided into 3 registers:
- Property register: identifies property by postal address, specifies the legal estate held, indicates any rights in other property such as easement over NEIGHBOURING LAND
- Proprietorship register: restrictions on title and the class of title held
- Charges register: details of encumbrances on the land, such as legal easements and mortgages OF THE BURDENED LAND.
Other third party interests may be protected only by the entry on a notice or a restriction on the register of title.
notice: something that burdens the land
restriction: used to prevent any dealing with the land
What are the interests that override first registration?
- Lease granted for 7 years or less
- Easements and profits a prendre
- Interest belonging to a person in actual occupation
Adverse possession
it works differently for registered land.
The person in actual occupation doesn’t acquire any rights in the land during the period of adverse possession, they acquire the right to apply for registration of title
Joint tenant
Co-owners, each own undivided, equal interest, includes the right of survivorship. On death, the deceased’s interest is automatically vested in any joint tenant still living.
Joint tenant can’t leave their share to someone in the will.
There can be no more than 4 joint tenants
Must be at least 18 years old
Tenants in common
No right of survivorship can leave their interest to someone else in their will.
When overreaching is appropriate?
Property being sold by one named individual but there may be a behind-the-scenes beneficial interest which must be overreached. Typically, it will be evidenced by a form A restriction on the proprietorship register, if the title is registered.
Leasehold: the landlord’s interest in the land
It’s known as the reversion, which is an assignable interest,
4 common types of leases
- Fixed-term tenancies
- Reversionary lease: it won’t take effect until a later date
- Periodic tenancies: defined by a period of time, such as yearly tenancy
- Tenancy at will: a personal arrangement between the landlord and another party which isn’t an estate in land. For example, when a landowner allows a buyer to take possession of the land before entering into any written agreement to sell
How a lease must be created and exceptions to it
Generally by deed. However, if less than 3 years, can be created orally or in writing without a deed if the tenant takes possession of the premises and it is at the best rent which can be reasonably obtained (market price).
Lease that wasn’t created by deed might be enforceable by equity if signed by the parties and incorporating all terms expressly agreed by parties.
Key characteristics of a lease
- right to exclusively possess the land
- is for a fixed or periodic term certain
- given in exchange for consideration (upfront or periodic payment)
Forfeiture (the right of a landlord to end the lease early and re-enter the premises)
Isn’t automatically available as a remedy for non-payment of rent or other breach of obligation. Only available as a remedy if expressly included in terms of lease. If clause is included, the landlord must serve a notice on the tenant.
If a party to a lease fails to perform repair - can claim damages or obtain specific performance.
Lease may include a self-help clause (Jervis v Harris clause): giving the landlord the right to enter and make a repair if the tenant breaches a covenant of repair.
Assignment of a lease before 1996
The original landlord and tenant automatically remain liable to each other under the lease for the entire period unless of them expressly releases the other.
Easements
- Servient tenement: is the land over which a right is enjoyed nd which makes the burden of right
- Dominant: land enjoying the benefit of a right
Personal right: is not an easement! for example, the right to swim in a neighbor’s pond. TIP: when considering if it’s an easement, ask: does it make the dominant tenement a more convenient landholding? if not, it’s a personal right and not an easement.
How easements can be created?
- Express grant or reservation: a landowner grants rights to benefit land being sold or reserves rights to benefit retained land
- Prescription: an easement acquired through long use:
-exercise of someone’s land without permission
-exercise for 20 years without challenge by landowner or contribution to the owner
-easement gained by prescription is treated as legal interest - Implied grant of reservation:
-by necessity
-by existing use if continuing and apparent, necessary to the reasonable enjoyment of the land, had been used by the seller for the benefit of the land sold
WHat needs to be done to protect a legal easement in registered land
Must be registered.
The benefit will appear as a notice on the property register on the DOMINANT tenement title
The burden will appear as a notice on the charges register on the servient tenement title
