LAND Flashcards
(168 cards)
1
Q
WHAT ARE THE TWO MAIN TYPES OF PROPERTY?
A
- Real property (realty)
- Personal property (personalty/chattels)
a) Chattels real
b) Chattels personal
i) Choses in possession
ii) Choses in action
2
Q
WHAT ARE THE THREE ELEMENTS THAT ARE REQUIRED FOR A VALID CONTRACT?
A
- An agreement consisting of an offer by the owner to sell and an unconditional acceptance by the buyer of all terms
- An intention by the parties that they should be legally bound
- Consideration given by each party to the other
3
Q
WHAT ARE THE THREE STAGES FOR THE TRANSFER OR SALE OF LAND?
A
- Sale ‘subject to contract’
- Exchange of Contract
- Completion
4
Q
WHAT IS INVOLVED IN THE ‘SALE, SUBJECT TO CONTRACT’ STAGE?
A
The buyer and seller informally agree the terms of sale and everything is ‘subject to contract’. Either party can withdraw from the transaction or try to change the agreed terms without any legal consequences. During this stage, a contract is drawn up stating the terms agreed by the parties.
5
Q
WHAT IS INVOLVED IN THE ‘EXCHANGE OF CONTRACTS’ STAGE?
A
Once the contracts are exchanged, the transaction becomes legally binding. The terms of sale are fixed and if either party defaults, the other party could take court action.
Contracts are governed by s2 Law of Property (Miscellaneous Provisions) Act 1989
6
Q
WHAT DOES S2 LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989 SAY ABOUT CONTRACTS?
A
A contract will be void unless the contract is:
- Made in writing
- Incorporates all terms which the parties have expressly agreed
- The document is signed by (or on behalf of) both the buyer and seller
7
Q
WHAT ARE THE THREE POINTS TO NOTE ABOUT S2 LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989?
A
- The terms may be incorporates by either being set out in the document, or by reference to another document
- Contracts for fitting do not have to comply with s2
- Contracts relating to the sale of land do not transfer the ownership of the land itself
8
Q
WHAT IS INVOLVED IN THE ‘COMPLETION’ STAGE?
A
Completion occurs when the property is transferred to the buyer. This must be by deed by virtue of s52 Law of Property Act 1925.
9
Q
WHAT ARE THE REQUIREMENTS FOR THE CREATION OF A VALID DEED UNDER S1 LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989?
A
A deed must:
- Be in writing
- Make clear on its face that it is intended to be a deed
- Be validly executed - signed and delivered
10
Q
WHAT ARE THE TWO COMMON LAW DEFINITIONS OF LAND?
A
- ‘he who owns the land owns everything extending to the heavens and to the depths of the earth’
- ‘whatever is attached to the ground becomes part of it’
11
Q
WHAT IS THE STATUTORY DEFINITION OF LAND ACCORDING TO S205(1)(IX) LAW OF PROPERTY ACT 1925?
A
‘land of any tenure, any mines or minerals whether or not held apart from the surface, buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way… and other corporeal hereditaments… and other incorporeal hereditaments’.
12
Q
WHAT ARE THE LIMITATIONS ON THE EXTENT OF LAND - AIRSPACE?
A
A landowner cannot object to the passage of aircraft during normal flight over land. Therefore, no action for trespass or nuisance can lie in respect of flights of aircraft over property at a reasonable height. What is reasonable depends on the prevailing weather conditions at the time.
Although ownership is said to be to the heavens, the owner is only allowed rights in the airspace to such a height as is necessary for the ordinary use and enjoyment of their land and structures on it – Bernstein v Skyviews Ltd [1978]
13
Q
WHAT ARE THE LIMITATIONS ON THE EXTENT OF LAND - UNDERGROUND?
A
- All mines of gold and silver belong to the Crown, as does treasure by virtue of the Treasure Act 1996.
- Oil extracted from the ground under the Petroleum Act 1998 belongs to the Crown.
- The Infrastructure Act 2015 allows fracking by oil and gas companies to take place below 300 metres under neighbouring land without the landowner’s permission.
- Coal belongs to the Coal Authority by virtue of The Coal Act 1938.
14
Q
WHAT ARE THE LIMITATIONS ON THE EXTENT OF LAND - SURFACE?
A
All minerals found on the surface are part of the land. If a seller wishes to reserve mineral rights, they must do so expressly.
Buildings, trees and plants are part of the land however, there are restrictions in the form of planning regulations which can affect what a landowner does with the land.
15
Q
WHAT ARE THE THREE REMEDIES FOR TRESPASS TO LAND?
A
- Damages
- Injunctions
- Self Help
16
Q
WHAT IS A FIXTURE?
A
A fixture is something that is attached to the land and automatically passes with the land
17
Q
WHAT IS A FITTING?
A
A fitting (or chattel) is something that is not attached to the land and does not automatically pass with the land
18
Q
HOW DO THE COURTS DISTINGUISH BETWEEN A FIXTURE AND A FITTING?
A
The courts make use of two tests to determine what amounts to a fixture and the courts frequently use both tests together to reach a conclusion
19
Q
WHAT IS THE FIRST TEST USED BY THE COURTS TO DISTINGUISH BETWEEN A FIXTURE AND A FITTING?
A
The degree of attachment
In Holland v Hodgson [1872] spinning looms were bolted to the floor of a mill. Being attached other than by their own weight, the looms were held to be fixtures
20
Q
WHAT IS THE SECOND TEST USED BY THE COURTS TO DISTINGUISH BETWEEN A FIXTURE AND A FITTING?
A
The purpose of attachment
Was the object attached for its own benefit? If so, it is likely to remain a fitting. In Leigh v Taylor [1902] a tapestry nailed to the wall of the premises was held to be a fitting.
Was the object attached for the benefit of the land as a whole? If so, it is likely to be regarded as a fixture. In D’Eyncourt v Gregory [1866] the court held that marble statues of lions in the garden were fixtures as they were there to increase the enjoyment of the land.
21
Q
WHAT IS THE THIRD TEST THAT IS RELEVANT WHEN DISTINGUISHING BETWEEN FIXTURES AND FITTINGS?
A
The permanence of the attachment
This was made clear in Botham v TSB Bank PLC [1996]
22
Q
WHAT IS AN ESTATE?
A
An estate in land describes how long the land is to be held.
23
Q
WHAT ARE THE TWO LEGAL ESTATES RECOGNISED BY LAW UNDER S1(1) LAW OF PROPERTY ACT 1925?
A
- The fee simple absolute in possession (freehold)
- The term of years absolute (leasehold)
24
Q
WHAT IS A FEE SIMPLE ABSOLUTE IN POSSESSION (FREEHOLD)?
A
An estate in fee simple is one which passes to heirs on death.
The word fee means the land is capable of being inherited
The word simple means there is no limitation on who can inherit.
If the fee simple is absolute, it is not subject to limitations which might end the estate prematurely.
The estate must also exist in possession meaning the holder of the estate must have an immediate right to possess the property.
To be legal, the estate must be created by deed in accordance with s52 LPA 1925.
25
WHAT IS A TERM OF YEARS ABSOLUTE (LEASEHOLD)?
A lease is an estate which exists for a fixed maximum duration. Leases can be fixed-term or periodic and therefore ‘term of years’ includes weekly or monthly tenancies (s205(1)(xxvii) LPA 1925).
Fixed-term tenancies terminate at the end of the term.
Periodic tenancies must be terminated by a notice to quit.
There is no requirement for the lease to be ‘in possession’ but to be valid, it must come into effect in possession within 21 years of its’ creation (s149(3) LPA 1925).
To be legal, the lease must be created by deed in accordance with s52 LPA 1925.
26
WHAT ARE THE FIVE LEGAL INTERESTS UNDER S1(2) LAW OF PROPERTY ACT 1925?
1. Legal easements and profits
2. Legal rentcharge
3. Charge by way of legal mortgage
4. Certain charges arising under statute
5. Rights of entry in legal leases and legal rentcharges
27
WHAT IS AN EQUITABLE INTEREST?
Any interest which does not qualify as a legal estate under s1(1) LPA 1925 or a legal interest under s1(2) LPA 1925 will be an equitable interest under s1(3) LPA 1925.
28
WHAT IS COMMONHOLD?
Commonhold was introduced by the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) to meet the needs of owners of properties where the owners are interdependent i.e flats.
Commonhold is not a new estate but one created out of an absolute freehold registered estate.
The property is registered at the Land Registry as ‘commonhold land’ and the owner of each unit is referred to as the unit holder and is registered as its freehold owner
29
IN RESPECT OF REGISTERED LAND, WHAT HAPPENED IN 1925?
Various parts of England and Wales were compulsory registration areas
30
IN RESPECT OF REGISTERED LAND, WHAT HAPPENED IN 1990?
In December 1990, all land in England and Wales fell within compulsory registration areas. The following dispositions triggered first registration of the land:
1) A sale of the legal freehold; or
2) A creation of sale of the legal lease with more than seven years left to run
31
IN RESPECT OF REGISTERED LAND, WHAT HAPPENED IN 1999?
As well as sales, the following also triggered compulsory first registration:
1. Gifts
2. Assents by personal representatives
3. Court orders
4. First legal mortgages of the property
All triggers are governed by s6 Land Registration Act 2002
32
IN RESPECT OF REGISTERED LAND, WHAT HAPPENED IN 2003?
The Land Registration Act 2002 came into force in October 2003
33
WHAT TWO PIECES OF LEGISLATION GOVERN REGISTERED LAND?
Land Registration Act 2002
Land Registration Rules 2003
34
WHAT ARE THE SEVEN ADVANTAGES TO THE REGISTERED LAND SYSTEM?
1. It reduces costs by removing the need for repeated examinations of the title deeds
2. A complete record of the interests which exist in connection with a registered title can be easily discovered.
3. An accurate plan for each parcel of registered land is available
4. The conveyancing process is made easier
5. Drafting is reduced to a mere form-filling exercise
6. The register establishes a record of proprietors of the land
7. Compensation is payable if errors or mistakes are made by the Land Registry and the system is state-guaranteed.
35
WHAT ARE THE THREE PRINCIPLES THAT UNDERPIN THE SYSTEM OF REGISTERED LAND?
1. The mirror principle
2. The curtain principle
3. The insurance principle
36
WHAT IS THE MIRROR PRINCIPLE?
The register should reflect the totality of estates and interests that exist in or over a particular plot of land.
37
WHAT IS THE CURTAIN PRINCIPLE?
The basis of this principle is to keep certain interests off the register. The purchase is protected against these interests by the principle of overreaching.
38
WHAT IS THE INSURANCE PRINCIPLE?
If loss is suffered through mistake or error, the injured party can claim compensation. The Land Registry deals with this by rectification of the register, alteration of the register or indemnity where loss has occurred.
39
WHAT IS THE PRINCIPLE OF OVERREACHING?
Overreaching is where the buyer takes the property free of beneficiaries’ interests. Provided the purchase money is paid to at least two trustees, the beneficiaries interests are swept off the land and put into the proceeds of sale (s2 LPA 1925). The trustees hold the proceeds of sale on trust and pay the beneficiaries their entitlement.
40
WHAT ARE THE THREE REGISTERS WHICH APPEAR ON EACH REGISTERED TITLE?
1. The property register
2. The proprietorship register
3. The charges register
41
WHAT CAN BE FOUND IN THE PROPERTY REGISTER?
A description of the property by reference to the title plan.
42
WHAT CAN BE FOUND IN THE PROPRIETORSHIP REGISTER?
This sets out who owns the land, the class of title they have over the land and any restriction(s) affecting their right to deal with the land.
43
WHAT ARE THE THREE POSSIBLE GRADES OF TITLE GIVEN IN RESPECT OF FREEHOLD TITLES?
1. Absolute title – fee simple absolute in possession
2. Qualified title – like the absolute title but the property is held subject to some defect or right
3. Possessory title – usually granted to a claimant by way of adverse possession
44
WHAT ARE THE FOUR POSSIBLE GRADES OF TITLE GIVEN IN RESPECT OF LEASEHOLD TITLES?
1. Absolute leasehold – granted where the freehold out of which it is granted is also registered at the Land Registry
2. Good leasehold – granted where there is some doubt about the lessor’s right to grant the lease
3. Possessory leasehold – like the absolute leasehold but is subject to some other right existing at the time of first registration
4. Qualified leasehold – like qualified freehold titles
45
WHAT CAN BE FOUND IN THE CHARGES REGISTER?
Details of all incumbrances or charges affecting the property i.e mortgages
46
WHAT ARE THE FOUR KINDS OF INTERESTS IN REGISTERED LAND?
1. Registrable estates and interests
2. Interests protected by entry on the register
3. Registered mortgage
4. Overriding interests
47
WHAT ARE REGISTRABLE ESTATES AND INTERESTS?
Registrable estates and interests are registered under their own title number via substantive registration
48
WHAT ARE THE FIVE LEGAL ESTATES AND INTERESTS CAPABLE OF SUBSTANTIVE REGISTRATION?
S2 LRA 2002 provides that the following are capable of substantive registration:
1. A fee simple absolute in possession
2. A term of years absolute with at least seven years to run
3. Rentcharges
4. Franchises
5. Profits a prendre
49
WHAT ARE INTERESTS PROTECTED BY ENTRY ON THE REGISTER?
These interests are entered on the register and affect the ability of the registered proprietor being able to sell.
50
UNDER THE LAND REGISTRATION ACT 2002, WHAT ARE THE TWO FORMS OF PROTECTION BY ENTRY ON THE REGISTER?
1. Notice (found in the charges register)
2. Restriction (found in the proprietorship register)
51
WHAT IS A NOTICE?
S32 LRA 2002 defines a notice as an entry in the register in respect of the burden of an interest affecting a registered estate or charge.
52
WHAT ARE THE TWO DIFFERENT TYPES OF NOTICE?
1. Agreed notice – this is entered on the register with the agreement or on the application of the registered proprietor.
2. Unilateral notice – this can be entered without the agreement or consent of the registered proprietor, but the registered proprietor will be informed of the entry and can apply to cancel it.
53
WHAT ARE THE FIVE INTERESTS THAT CAN BE PROTECTED BY NOTICE?
1. Equitable easements
2. Restrictive covenants over freehold land
3. Leases of more than three years that do not exceed seven years
4. Equitable mortgages
5. Equitable interests such as estate contracts
54
WHAT IS A RESTRICTION?
S40 LRA 2002 defines a restriction as an entry in the register regulating the circumstances in which a disposition of a registered estate or charge may be the subject of an entry in the register.
A restriction can be entered with or without the consent of the registered proprietor and, where the restriction is entered without consent, they must be informed of it.
55
WHAT IS A REGISTERED MORTGAGE?
Legal mortgages (created by deed) are protected by the registration of a charge in the charges register
56
WHAT ARE INTERESTS WHICH ARE OVERRIDING?
Interests which are overriding are not registered but bind a buyer of land.
57
IN RESPECT OF OVERRIDING INTERESTS, WHAT DOES THE LAND REGISTRATION ACT 2002 DISTINGUISH BETWEEN?
Interests which override first registration (paras 1-3 sch 1) and those which override registered dispositions (paras 1-3 sch 3)
58
UNDER SCH1 LAND REGISTRATION ACT 2002, WHICH INTERESTS OVERRIDE FIRST REGISTRATION?
1. Short leases (para 1)
2. Persons in actual occupation (para 2)
3. Easements (para 3)
59
HOW DO SHORT LEASES (PARA 1 SCH 1 LRA 2002) OVERRIDE FIRST REGISTRATION?
A lease granted for a term not exceeding seven years from the date of the grant overrides first registration.
There are some exceptions:
1. Leases which take effect in possession more than three months after the date of the lease; and
2. Certain leases under the Housing Act 1985
60
HOW DO PERSONS IN ACTUAL OCCUPATION (PARA 2 SCH 1 LRA 2002) OVERRIDE FIRST REGISTRATION?
The rights of a person in actual occupation of the land will override first registration. The person claiming such an overriding interest must:
1. Have a right or interest in the land; and
2. Be in actual occupation
61
HOW DO EASEMENTS (PARA 3 SCH 1 LRA 2002) OVERRIDE FIRST REGISTRATION?
Legal easements can override first registration and this applies to all easements.
To be legal, an easement must:
1. Be equivalent to a legal estate; and
2. Have been created:
a) By deed; or
b) By implication or
prescription
62
UNDER SCH3 LAND REGISTRATION ACT 2002, WHICH INTERESTS OVERRIDE REGISTERED DISPOSITIONS?
1. Short leases (para 1)
2. Persons in actual occupation (para 2)
3. Easements (para 3)
63
HOW DO SHORT LEASES (PARA 1 SCH 3 LRA 2002) OVERRIDE REGISTERED DISPOSITIONS?
A lease granted for a term not exceeding seven years from the date of the grant overrides registered dispositions.
There are some exceptions:
1. Leases which take effect in possession more than three months after the date of the lease; and
2. Certain leases under the Housing Act 1985
3. A lease, the grant of which, constitutes a registrable disposition
64
HOW DO PERSONS IN ACTUAL OCCUPATION (PARA 2 SCH 3 LRA 2002) OVERRIDE REGISTERED DISPOSITIONS?
The rights of a person in actual occupation of the land will override registered dispositions. The person claiming such an overriding interest must:
1. Have a right or interest in the land; and
2. Be in actual occupation
The following interests are excluded:
1. One of a person of whom enquiry was made and it was not disclosed
2. If it is not obvious, on careful inspection of the land
65
HOW DO EASEMENTS (PARA 3 SCH 3 LRA 2002) OVERRIDE REGISTERED DISPOSITIONS?
From October 2006, an unregistered legal easement will override a registered disposition if it is:
1. Obvious from a reasonable inspection of the land;
2. Known to the person whom the disposition is made;
3. Exercised within the year before the disposition; or
4. Registered under the Commons Registration Act 1965
66
WHAT DID THE COURT HOLD IN WILLIAMS & GLYN'S BANK LTD v BOLAND [1980] IN RESPECT OF PERSONS IN ACTUAL OCCUPATION OVERRIDING REGISTERED DISPOSITIONS?
Determining whether a person is in actual occupation of the land is a question of fact
67
WHAT DID THE COURT HOLD IN CHHOKAR V CHHOKAR [1984] IN RESPECT OF PERSONS IN ACTUAL OCCUPATION OVERRIDING REGISTERED DISPOSITIONS?
A person does not cease to be in actual occupation merely because they are temporarily absent
68
WHAT DID THE COURT HOLD IN ABBEY NATIONAL BUILDIN SOCIETY V CANN [1990] IN RESPECT OF PERSONS IN ACTUAL OCCUPATION OVERRIDING REGISTERED DISPOSITIONS?
The relevant date in respect of occupation is the date of transfer
69
WHAT DID THE COURT HOLD IN LINK LENDING LTD v HUSSEIN [2010] IN RESPECT OF PERSONS IN ACTUAL OCCUPATION OVERRIDING REGISTERED DISPOSITIONS?
That there was no single test for determining whether a person was in actual occupation and all factors can be considered
70
IN UNREGISTERED LAND, WHAT PRINCIPLES ARE LEGAL AND EQUITABLE RIGHTS GOVERNED BY?
1. Legal rights are protected because ‘legal rights bind the world’ and the buyer is therefore bound by such rights.
2. Equitable rights are categorised as either commercial rights, residual rights or family rights
71
HOW ARE COMMERCIAL RIGHTS PROTECTED IN UNREGISTERED LAND?
By registration under the Land Charges Act 1972:
1. Puisine mortgages – Class C (i)
2. Equitable mortgages – Class C (iii)
3. Equitable leases – Class C (iv)
4. Restrictive covenants created on or after 01 January 1926 – Class D (ii)
5. Equitable easements – Class D (iii)
6. Family home rights under Family Law Act 1996 & Civil Partnership Act 2004 (CPA 2004)) – Class F
A prospective buyer searches the land charges register against the names of previous estate owners back to a good root of title (the first set of title deeds more than 15 years old). The buyer can then find out which rights will be binding.
72
HOW ARE RESIDUAL RIGHTS PROTECTED IN UNREGISTERED LAND?
By the doctrine of notice:
A purchaser will be bound by such rights provided they are a bona fide purchaser for value with notice of the interest. The buyer must have purchased the land for value with:
1. Actual notice; or
2. Constructive notice; or
3. Imputed notice
73
HOW ARE FAMILY RIGHTS PROTECTED IN UNREGISTERED LAND?
By overreaching
74
WHAT HAPPENS IF A COMMERCIAL RIGHT IS NOT REGISTERED?
The buyer is deemed to have no notice of it and can take free of the right even if they knew of the charge (s4 LCA 1972)
75
WHAT HAPPENS IF A COMMERCIAL RIGHT IS REGISTERED?
The buyer will be bound by it and are treated as if they had actual notice, even if this is not the case (ss198 & 199 LPA 1925).
76
WHAT IS CO-OWNERSHIP?
Concurrent interests arise where people are entitled to possession of land at the same time. This is referred to as co-ownership.
77
WHEN DOES A TRUST OF LAND ARISE?
Whenever more than one person is entitled to possession of land
(Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) and s36(2) LPA 1925)
78
WHAT IS THE ROLE OF A TRUSTEE?
Trustees hold the legal estate and have the right to deal with the land
79
WHAT IS THE ROLE OF A BENEFICIARY?
Beneficiaries hold a beneficial interest and have the right to the proceeds of sale
80
WHAT ARE THE TWO TYPES OF CO-OWNERSHIP?
1. Joint tenancy
2. Tenants in Common
81
WHAT IS A JOINT TENANCY?
Joint tenancies can exist in law (joint tenancy) and in equity (beneficial joint tenancy)
Joint tenants each own the entirety of the land.
At law, all co-owners are joint tenants and the legal estate always passes by the doctrine of survivorship to the surviving joint tenant(s).
Under s34(2) LPA 1925, there can never be more than four joint tenants of the legal estate at any one time. There can be any number of beneficial joint tenants.
82
WHAT ARE THE FOUR UNITIES THAT ARE REQUIRED FOR A JOINT TENANCY TO EXIST?
1. Possession
2. Interest
3. Time
4. Title
83
WHAT IS A TENANCY IN COMMON?
Tenancies in common can only exist in equity (beneficial tenancy in common)
The tenants own a notional share in the land. There is no right of survivorship so on the death of one of the tenants, the property passes according to the deceased’s will or under the intestacy rules.
84
WHICH UNITY NEEDS TO APPLY FOR A TENANCY IN COMMON TO EXIST?
1. Possession
85
WHAT IS MEANT BY 'SEVERANCE OF THE BENEFICIAL JOINT TENANCY'?
Severance is a method by which a beneficial joint tenancy is converted to a beneficial tenancy in common.
86
WHAT ARE THE METHODS OF SEVERANCE?
1. Notice in writing
2. Method severance according to Williams v Hensman [1861]
87
HOW CAN YOU SEVER A BENEFICIAL JOINT TENANCY IN WRITING?
Under s36(2) LPA 1925, a beneficial joint tenant can serve a written notice of severance on the other beneficial joint tenants.
To be effective, there must be an intention to sever immediately (Harris v Goddard [1983]) and the notice must be served on all the beneficial joint tenants.
Once served, the notice becomes effective even if the joint tenants have not read it (Kinch v Bukkard [1998]).
88
HOW CAN YOU SEVER A BENEFICIAL JOINT TENANCY ACCORDING TO WILLIAMS V HENSMAN [1861]
1. An act of a joint tenant operating in their own share.
2. A mutual agreement between the joint tenants to hold the equitable interest in shares.
3. Any course of dealing that shows the interests were mutually treated as tenants in common
89
WHAT ARE THE THREE WAYS IN WHICH CO-OWNERSHIP CAN BE TERMINATED?
1. Sale
2. Partition
3. Union in a sole owner
90
WHAT IS A RESULTING TRUST?
A resulting trust arises where payments towards the purchase price were made at the time of the acquisition of the property (Bull v Bull [1955]).
91
WHEN DOES A RESULTING TRUST NOT ARISE?
When the contribution consists of payments of mortgage instalments or other expenses after the purchase has been made (Curley v Parkes [2004]).
92
WHAT IS A CONSTRUCTIVE TRUST?
Constructive trusts arise where there is either:
1. An express common intention; or
2. An inferred common intention
93
HOW IS THE QUANTIFICATION OF THE SHARE IN A CONSTRUCTIVE TRUST DETERMINED?
The quantification of the share is based on what is fair in the circumstances and only applies where there is no express declaration of trust indicating the contrary (Oxley v Hiscock [2004]).
94
WHAT WAS THE FURTHER LIST OF FACTORS THAT WAS ESTABLISHED BY STACK V DOWDEN [2007] WHEN DETERMINING THE QUANTIFICATION OF THE SHARE IN A CONSTRUCTIVE TRUST?
In addition to financial contribution to the property, the court may consider:
1. The nature of the parties relationship
2. Advice or discussions at the time of the transfer
3. The purpose for which the home was purchased
4. Children of the parties
5. How the couple arranged their finances
6. Payment of outgoings and how this was divided
7. The individual characters and personalities of the parties
94
FURTHER TO STACK V DOWDEN [2007], HOW IS THE FAMILY HOME TREATED?
In the absence of any express declaration of a tenancy in common, it is presumed that where the family home is held by both partners, the beneficial interest will be held on a joint tenancy, even where unequal contributions were made.
This presumption can be rebutted
95
FURTHER TO STACK V DOWDEN [2007], HOW IS COMMERCIAL PROPERTY TREATED?
The presumption here is that unequal contributions to the purchase of the property give rise to a tenancy in common.
This presumption can be rebutted
96
WHAT DID JONES V KERNOTT [2011] CLARIFY?
Stack v Dowden [2007] in situations where the parties had lived apart for some time and where their respective shares could vary over that period – the court is entitled to infer or impute an intention as to the division of the property that could be considered fair.
97
WHAT DID PANKHANIA V CHANDEGRA [2012] MAKE CLEAR?
That where an express trust exists, Stack v Dowden [2007] will not apply.
98
WHAT DOES S11 TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996 STATE IN RELATION TO SOLVING DISPUTES BETWEEN CO-OWNERS?
Trustees must consult beneficiaries when exercising functions relating to land
99
WHAT DOES S12 TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996 STATE IN RELATION TO SOLVING DISPUTES BETWEEN CO-OWNERS?
Where the purpose of the trust includes making the property available for the occupation of beneficiaries, they will have the right of occupation
100
WHAT DOES S14 TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996 STATE IN RELATION TO SOLVING DISPUTES BETWEEN CO-OWNERS?
Allows any person with an interest in the trust to apply to the court to obtain an order relating to exercising any of their functions. This allows the person to apply to the court for an order of sale.
Equally, a beneficiary could prevent a sale by trustees
101
WHAT DOES S15(1) TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996 STATE IN RELATION TO SOLVING DISPUTES BETWEEN CO-OWNERS?
The court is obliged to consider various factors in making its decision:
1. The intention of the person or persons who created the trust
2. The purpose for which the property subject to the trust is held
3. The welfare of any child who occupies or might reasonably expect to occupy any land subject to trust as their home
4. The interests of any secured creditor of any beneficiary
102
HOW DO YOU PROTECT CO-OWNERSHIP INTERESTS AND MATRIMONIAL RIGHTS IN REGISTERED LAND?
An equitable interest can be protected by entry on the register by a restriction.
If the interest is not registered, but the holder of the interest is in actual occupation the interest will be capable of being overriding under para 2 sch 3 LRA 2002.
103
HOW DO YOU PROTECT CO-OWNERSHIP INTERESTS AND MATRIMONIAL RIGHTS IN UNREGISTERED LAND?
Equitable interests arising under resulting or constructive trusts are governed by the doctrine of notice and subject to overreaching.
104
HOW DOES S37 MATRIMONIAL PROCEEDINGS AND PROPERTY ACT 1970 PROTECT A SPOUSE?
A spouse who makes a substantial contribution in money or money’s worth to the improvement of real (or personal) property will be treated as having a share, subject to any contrary agreements between them
105
HOW DOES S25 MATRIMONIAL CAUSES ACT 1973 PROTECT A SPOUSE?
Provides the court with wide discretionary powers to order a distribution of the spouse’s property.
106
HOW DO SS30 & 31 FAMILY LAW ACT 1996 (PART IV) PROTECT A SPOUSE?
Spouses can protect their matrimonial home rights by way of a Class F land charge in unregistered land and by notice in registered land.
107
HOW DOES S66 CIVIL PARTNERSHIP ACT 2004 PROTECT A CIVIL PARTNER?
In respect of the family home and in the event of the dissolution of a civil partnership, either civil partner may apply to the court for a declaration as to the title or an order for the possession of the property.
108
HOW DOES S65 CIVIL PARTNERSHIP ACT 2004 PROTECT A CIVIL PARTNER?
Recognises contributions to the improvement of the property if substantial and in money’s worth.
109
WHAT IS AN EASEMENT?
A private property right which one person has over another’s land
110
WHAT IS REQUIRED FOR AN EASEMENT TO EXIST?
Both parties must have estates in land
111
WHO IS THE DOMINANT OWNER?
The party who benefits from the easement
112
WHO IS THE SERVIENT OWNER?
The party whose land suffers the detriment of the easement
113
WHAT ARE THE FOUR CHARACTERISTICS OF AN EASEMENT AS ESTABLISHED IN RE ELLENBOROUGH PARK [1956]?
1. There must be a dominant and servient tenement
2. The right must benefit the dominant tenement
3. There must be diversity of ownership and/or occupation
4. The right claimed must be capable of forming the subject-matter of a grant
This must meet the following requirements:
a) The right claimed must be like existing easements
b) There must be no positive requirement for the servient owner to spend money
c) Easements must be sufficiently definite
114
WHAT TWO FORMALITIES ARE REQUIRED FOR THERE TO BE A LEGAL EASEMENT UNDER S1(2) LAW OF PROPERTY ACT 1925?
They must be:
a) For a term equivalent to a legal estate; and
b) In the form of a deed if created by express grant or reservation.
115
WHAT ARE THE FORMALITIES OF LEGAL EASEMENTS IN UNREGISTERED LAND?
In unregistered land, legal easements bind buyers regardless of notice
116
WHAT ARE THE FORMALITIES OF LEGAL EASEMENTS IN REGISTERED LAND?
In registered land, legal easements are registrable and implied legal easements are overriding interests.
117
WHAT IS AN EQUITABLE EASEMENT?
An easement for any period less than a legal estate or one created other than by deed or statute must be equitable
Examples of equitable easements are:
1. Easements for life
2. Easements where formalities have failed i.e. not created by deed
118
HOW ARE EASEMENTS CREATED?
1. By express grant
2. By implied grant
3. By presumed grant/prescription
119
HOW ARE EASEMENTS CREATED BY EXPRESS GRANT?
One property holder expressly agrees that another should have an easement over their land.
To be recognised by law, it must be created by deed under s52 LPA 1925.
120
WHAT ARE THE FOUR WAYS EASEMENTS CAN BE CREATED BY IMPLIED GRANT?
1. Necessity
2. Common intention
3. The rule in Wheeldon v Burrows [1879]
4. s62 LPA 1925
121
HOW ARE EASEMENTS CREATED BY NECESSITY?
An easement will be implied if necessary.
This can arise where:
1. Land is landlocked and there is no access without a right of way (Nickerson v Barraclough [1981]).
2. The only alternative would be to destroy a barrier on part of the retained land (Sweet and Another v Sommer and Another [2004]).
Mere inconvenience is insufficient (Titchmarsh v Royston Water Co Ltd [1899]).
122
HOW ARE EASEMENTS CREATED BY COMMON INTENTION?
There may be an implied easement if the parties of the transaction clearly intended this.
Liverpool City Council v Irwin [1977]
123
HOW ARE EASEMENTS CREATED BY THE RULE IN WHEELDON V BURROWS [1879]?
Several conditions must apply:
1. Unity of ownership and occupation
2. Exercise of quasi-easements
3. Continuous and apparent
4. Necessary and reasonable enjoyment of the land
5. Division of the land
124
WHAT IS THE FIRST WAY IN WHICH S62 LAW OF PROPERTY ACT 1925 IS USED TO CREATE A NEW EASEMENT?
Where there is diversity of ownership and occupation
Two additional requirements must be met:
1. Permission must be given to the occupier to use the easement; and
2. There must be a conveyance
125
WHAT IS THE SEOCND WAY IN WHICH S62 LAW OF PROPERTY ACT 1925 IS USED TO CREATE A NEW EASEMENT?
Where there is no diversity of ownership and occupation (further to Wood v Waddington [2015])
The following conditions must be met:
1. The right is continuous and apparent; and
2. The use must have been for the benefit of the land
126
HOW ARE EASEMENTS CREATED BY PRESUMED GRANT/PRESCRIPTION?
The following criteria must be satisfied:
1. There must have been continuous user
2. User must have continued for the prescriptive period – generally 20 years or more
3. User must be by (or on behalf of) and against the fee simples
4. There must be user as of right – exercised without force, secrecy, or permission.
127
WHAT ARE THE THREE METHODS OF PRESCRIPTION?
1. At common law, for an easement to arise by prescription, it had to have been enjoyed since time immemorial (1189).
2. Under the doctrine of lost modern grant
3. Under the Prescription Act 1832
128
WHAT IS MEANT BY RESERVATION OF AN EASEMENT?
Reservation occurs if an owner sells part of their land but retains the right to use an easement over the land sold.
Easements reserved may be legal or equitable.
129
HOW DO YOU PROTECT LEGAL EASEMENTS IN REGISTERED LAND?
Express legal easements must be completed by registration to be legal. Easements which burden the land will be found in the charges register and easements which benefit the land will be found in the property register.
Implied legal easements override registered dispositions and will not be found on the register.
130
HOW DO YOU PROTECT EQUITABLE EASEMENTS IN REGISTERED LAND?
By notice on the register.
131
HOW DO YOU PROTECT LEGAL EASEMENTS IN UNREGISTERED LAND?
All legal easements bind the world regardless of notice
132
HOW DO YOU PROTECT EQUITABLE EASEMENTS IN UNREGISTERED LAND?
Equitable easements created on or after 01 January 1926 must be registered as a Class D(iii) land charge.
Easements created before this date are subject to the doctrine of notice.
133
WHAT ARE THE THREE WAYS IN WHICH EASEMENTS CAN BE TERMINATED?
1. By statute
2. By release
3. By unity of ownership and posession
134
WHAT IS A PROFIT A PRENDRE?
A right to enter the land of another person and take part of the produce or soil.
135
WHAT ARE FIVE EXAMPLES OF PROFITS A PRENDRE?
1. Mining rights
2. Fishing rights
3. Shooting rights
4. Rights of grazing
5. Rights to collect wood or dig for peat
136
WHAT ARE COVENANTS?
Legally binding obligations which are either positive or restrictive
137
WHAT IS A POSITIVE COVENANT?
Impose an obligation on a purchaser to do something and usually expend money
i.e to maintain a fence or to clear ditches.
138
WHAT IS A RESTRICTIVE COVENANT?
Restrictions placed on the owner when the house is built
i.e not to run a business or not to build above a certain height.
139
WHO IS THE COVENANTOR?
The person who gives the covenant and they have the burden.
140
WHO IS THE COVENANTEE?
The person who receives the covenant and they have the benefit.
141
WHEN IS A COVENANT ALWAYS ENFORCEABLE?
A covenant is always enforceable between the original covenantor and original covenantee due to the principle of privity of contract
142
WHAT ARE THE GENERAL RULES AT COMMON LAW IN RESPECT OF ENFORCING COVENANTS?
Both the benefit and the burden must pass with the land for the covenants to be enforceable at common law.
143
WHEN WILL THE BENEFIT OF A COVENANT RUN AT COMMON LAW?
If:
1. The covenant touches and concerns the land of the covenantee
2. The original covenantee owned the legal estate in the land to be benefitted when the covenant was made
3. The original parties intended that the covenant should pass with the land
4. The successor in title derives title from the original covenantee
144
WHEN WILL THE BURDEN OF A COVENANT RUN AT COMMON LAW?
The general rule at common law is the burden of a covenant will not pass to subsequent purchasers (decided in Austerberry v Oldham Corporation [1885], confirmed in Rhone v Stephens [1994])
145
WHAT ARE THE TWO EXCEPTIONS TO THE GENERAL RULE IN RESPECT OF THE BURDEN OF A COVENANT PASSING AT COMMON LAW?
1. If there is a chain of indemnity covenants
2. Under the principle laid down in Halsall v Brizell [1957]
146
WHEN WILL THE BENEFIT OF A COVENANT RUN AT EQUITY?
1. The covenant touches and concerns the land; and
2. The benefit of the covenant was either:
a) Annexed to the land of the covenantee;
b) Expressly assigned to the successor in title;
c) The land in question is part of a building scheme
147
WHAT ARE THR FOUR CONDITIONS SET OUT IN ELLISTON V REACHER [1908] IN RESPECT OF BUILDING SCHEMES?
1. The claimant and defendant must have derived title from a common owner
2. The owner must have set out the estate in lots and imposed restrictions prior to the sale consistent with some general scheme of development
3. The owner must have intended that the restrictions were to be for the mutual benefit of all purchasers of the various lots of land
4. The claimant and defendant, or their predecessors in title, must have purchased their property on the basis that the covenants were to be mutually enforceable
148
WHEN WILL THE BURDEN OF A COVENANT RUN AT EQUITY?
Following Tulk v Moxhay [1848]:
1. The covenant is a restrictive covenant
2. The burden of the covenant was intended to pass with the land
3. There is a dominant tenement and a servient tenement
4. The covenant benefits the dominant tenement
5. The purchaser has notice of the covenant
149
UNDER S84 LAW OF PROPERTY ACT 1925, WHERE CAN APPLICATIONS BE MADE FOR DISCHARGING A RESTRICTIVE COVENANT?
Upper Tribunal (Lands Chamber)
150
WHAT ARE THE SIX CIRCUMSTANCES IN WHICH A RESTRICTIVE COVENANT WILL BE FULLY OR PARTIALLY DISCHARGED?
1. It is obsolete due to changes in the character of the property or neighbourhood
2. Continued existence would prevent reasonable use of the land
3. The person entitled to the benefit has either expressly or impliedly consented to its discharge
4. The discharge or modification will not injure the person entitled to the benefit
5. The owners of the benefitting land can enter a deed of release or variation
6. The land is of common ownership and occupation
151
WHAT IS A MORTGAGE?
A mortgage is a right of a lender over land which guarantees the payment of a debt or the performance of some other obligation.
152
WHO IS THE MORTGAGOR?
The borrower
153
WHO IS THE MORTGAGEE?
The lender
154
WHAT ARE THE FOUR TYPES OF MORTGAGE?
1. The repayment mortgage
2. Endowment mortgage
3. Interest only mortgage
4. Pension mortgage
155
WHAT IS THE REPAYMENT MORTGAGE?
A loan based on monthly repayments, consisting partly of capital and partly of interest which is repaid over 15, 20 or 25 years.
The mortgage protection policy is often taken out to protect against death. The amount of the mortgage payable will be produced from the policy and will discharge the mortgage if the borrower dies during the term of the mortgage.
156
WHAT IS THE ENDOWMENT MORTGAGE?
Type of interest-only mortgage. The borrower will take out a life policy for the full amount of the loan as well as taking out a mortgage of 15, 20 or 25 years as in the ordinary repayment mortgage. This policy matures after 15, 20 or 25 years or on death, if earlier.
157
WHAT IS THE PENSION MORTGAGE?
Mainly for the self-employed.
The borrower only pays interest to the lender, but they also make contributions to a personal pension plan.
On retirement, the borrower receives a pension from their pension plan and part of this is made into a lump sum to pay off the debt owing under the mortgage.
158
HOW ARE LEGAL MORTGAGES CREATED IN UNREGISTERED LAND?
By virtue of s85 LPA 1925, legal mortgages can be created by:
1. A lease for a term of years absolute subject to a provision for cessation on redemption.
2. A charge by deed expressed to be by way of legal mortgage
159
HOW ARE LEGAL MORTGAGES CREATED IN REGISTERED LAND?
1. By deed
2. Expressly stating that the property has been charged with debt by way of legal mortgage
3. Which has been registered in the charges register of the title
If the lender fails to register the charge, their mortgage will not be binding unless protected by notice.
160
HOW ARE EQUITABLE MORTGAGES CREATED IN REGISTERED LAND?
Equitable mortgages, which are created in writing rather than deed, are sometimes used to secure short-term loans or overdrafts
161
WHAT IS THE LEGAL DATE FOR REDEMPTION?
The mortgage will contain a provision that the full loan must be repaid by a specific date – usually 6 months from the date the mortgage was created
162
WHAT HAPPENS ONCE THE LEGAL DATE FOR REDEMPTION HAS PASSED?
The borrower has an equitable right to redeem the mortgage.
163
WHAT ARE THE SIX REMEDIES OF A MORTGAGE
1. Obtaining possession
2. Sale
3. An action in debt
4. Foreclosure
5. Appointment of a receiver
6. Liability of guarantors
164
HOW ARE LEGAL MORTGAGES PROTECTED IN REGISTERED LAND?
Protected as a charge in the charges register
165
HOW ARE EQUITABLE MORTGAGES PROTECTED IN REGISTERED LAND?
Protected by notice in the charges register
166
HOW ARE LEGAL MORTGAGES PROTECTED IN UNREGISTERED LAND?
Protected by deposit of the title deeds with the lender.
A second or subsequent legal mortgage must be protected by a Class C(i) land charge
167
HOW ARE EQUITABLE MORTGAGES PROTECTED IN UNREGISTERED LAND?
Protected by a Class C(iii) land charge
