Key cases and academics

Question 1

Formalities and registration

Answer 1

• Lees = Mortgage Express v Lambert = the case is correct to allow mere equities to be overreached, but practically results in difficulties in this case
• Lees = her interest ‘now rests in the mortgage money’
  Mistake =
• Dixon = ‘the lack of a definition of “mistake” is actually central’ + It allows the court to have flexibility.
• A mistake encompasses all subsequent transactions as mistakes = Macleod v Gold Harp Properties Ltd [2014]

Question 2

Academic
On Actual Occupation

Answer 2

Bevan = he argues that recent cases show a mistaken and unwelcome change in approach to determining actual occupation, in particular the focus on intentions [as they cannot be seen by someone inspecting the land]

Question 3

Academics on Swift

Answer 3

Dixon = Despite Swift sidestepping this by using forgeries to get an indemnity, Dixon argues that ‘this sidestep will not work in all cases’
Watterson and Goymour = Swift declared Mallory ‘was per incuriam on both points, and therefore not authoritative’

Question 4

Proprietary estoppel

Answer 4

McFarlane argues that not all proprietary estoppels are proprietary if they are not given a proprietary remedy once the case has been concluded by the court,
– so, if not all proprietary estoppels give you a proprietary right, they should not be proprietary, and people exercise the right as if it were proprietary, from when the equity arises but from when the court states that it is proprietary

Question 5

Trusts of Land

Answer 5

• McFarlane = equity looks at what ‘ought to be done’
• Pascoe = ‘The right to occupy represents part of a shift in power from trustees to beneficiaries.’
• ‘Gray and Gray term this [TLATA] the democratisation of the trust.’

Question 6

Trusts of Family Home

Answer 6

• Tee argues that severance by mutual agreement is uncertain, such as to ‘whether an oral agreement to sever would now be effective’
• Tee = ‘The Law Commission has recognised that the law concerning severance needs further consideration.’

Question 7

Mortgages

Answer 7

• Gray and Gray ask whether the law strike the right balance between lenders and borrowers
• The Law Commission has long advocated reform by the adoption of a statutory form of security interest with defined rights and powers

Question 8

Co-ownership

Answer 8

• Coke on joint tenancy: ‘joint tenant holds the whole and the nothing, that is he holds the whole jointly and nothing separately’.
• Hammersmith and Fulham LBC v Monk 1992: ‘one single owner’: Lord Browne-Wilkinson
• Blandy = ‘sharing by the homeowners’

Question 9

Licences

Answer 9

• Swadling = right of possession is completely independent of the licence = possession gives you the right to sue in tresspass
• Swadling = ‘the fact of possession, which binds third parties’
• Swadling also criticises Dutton based on the numerus clausus principle = ‘the closed number of proprietary rights has been inappropriately increased’
• Baker = Dutton has been misunderstood and the CoA were correct

Question 10

Leases

Answer 10

• Bright criticises the uncertainty of the law: ‘artificiality and arbitrariness of the judgments’
• Bright also draws the distinction between sham and pretences with the ‘common intention [to deceive] and for the whole document to be a lie’ in the case of shams

Question 11

Leases - Bruton

Answer 11

• Dixon = due to nemo dat, the trust cannot give a property right, a lease, so it is a personal right, which is a licence
• Bright = Bruton contradicts nemo dat and this questions its affect on third parties
• Pawlowksi and Brown = Bruton dismisses nemo dat
  vs.
• Roberts justifies the decision
• ‘Bruton is best understood in terms of the doctrine of relativity of title’
• This is because the system is one of registration of title, and as the ‘title to grant a tenancy depends upon possession, and not upon title’, so Bruton is correct

Question 12

Easements

Answer 12

• Douglas = implied easements are ‘ unnecessarily complex’
• Douglas = the Law Commission’s proposed reforms ‘would be to replace the various common law tests with a single statutory test for implication’
• ‘the common law has not developed several separate tests for implication. Rather, the courts apply a single test’: the court use the surrounding circumstances and they ‘‘are not treated by the courts as tests at all’