Land and property

Question 1

What is a fixture and does it pass with sale of land?

Answer 1

affixed/annexed to the land or building so that it is part of the land or building.
Passes automatically with the sale of land

Question 2

What is a fitting and does it pass with the sale of land?

Answer 2

object on land that doesn’t become part of it but stays a separate chattel
only passes if it is listed in the Fittings and Contents Form

Question 3

2 tests for determining if something is a fixture

Answer 3

Degree of annexation test: how attached it is to the land - would removing it cause damage?

Purpose of annexation test: whether it was intended to be a permanent part of the land (statue as focal point of garden design)
purpose test prevails

Question 4

2 types of legal estate

Answer 4

freehold (fee simple) and leasehold (term of years)

Question 5

can a restrictive covenant be enforced against a subsequent buyer?

Answer 5

if they have notice of the covenant

Question 6

requirements for a valid deed

Answer 6

in writing, state that its a deed, signed by the grantor and a witness who attests their signature (signs to verify) and be delivered

Question 7

requirements for a contract for land

Answer 7

in writing, include all agreed terms, be signed by all contracting parties

Question 8

proprietary estoppel

Answer 8

a remedy when it would be unconscionable to permit a party to gain or lose proprietary rights because of lack of formalities.
requires: assurance, claimant’s reasonable reliance on the assurance, claimant acted to their detriment, would be unconscionable to not grant the remedy

Question 9

when is a buyer bound by equitable interests?

Answer 9

when they are aware of them (unlike legal where they are bound even if unaware)
so for an equitable right or interest to be binding in unregistered land, must be registered on Land Charges Register, which constitutes actual notice to all persons

unless they receive the property as a gift, then it’s taken subject to equitable interest regardless of whether they have notice

Question 10

puisne mortgage

Answer 10

a mortgage not protected by the deposit of the deed with the lender - second mortgage. Land Charges Register class C(i)

Question 11

how are land changes on unregistered system registered?

Answer 11

against full name of property owner

Question 12

Classes of charges on land charges register

Answer 12

c(i) - puisne mortgage
c(iii) general equitable charge like equitable mortgage
c(iv) estate contract
D(ii) restrictive covenant
D(iii) equitable easement
F: non owning spouse or civl partner stat right of occupation

Question 13

Adverse possession for title to unregistered land

Answer 13

actual, physical and exclusive possession of the land for at least 12 years without permission from land owner
–>former owner cannot bring a suit to recover the land and squatter can apply for title with HMLR

Question 14

When does application for first registration of land need to be made?

Answer 14

within 2 months of triggering event
otherwise reverts to seller

Question 15

absolute freehold title

Answer 15

best class of title, proprietor takes the legal estate together with all interests that benefit estate

Question 16

possessory title

Answer 16

based on factual possession of the land rather than documentary evidence (used when title deeds are lost or adverse possession)

Question 17

Good leasehold title

Answer 17

used when freehold title has not been produced to HMLR on the application to register

Question 18

Absolute leasehold title

Answer 18

awarded when HMLR inspected all superior leasehold titles and the freehold title

Question 19

Property register - what’s on it

Answer 19

identifies property by postal address
specifies legal estate
indicates rights that benefit the property

Question 20

Proprietorship register

Answer 20

specifies any restrictions on title and class of title held

Question 21

Charges register

Answer 21

contains details of encumbrances on the land like legal easements and mortgages (both of which are third party rights that take effect at law only if registered- although could still take effect at equity)

Question 22

Notice

Answer 22

relates to something that burdens the land, makes the interest binding when a notice is entered on register of title

ex: contract, covenant

Question 23

Restriction

Answer 23

entered on register of title to prevent any dealing with the land other than in accordance with restriction’s terms

for ex: that holding as tenants in common

Question 24

interests that override first registration

Answer 24

legal lease for 7 years or less (over 7 years has to be substantively registered)

implied legal easements if buyer knew of it/it would be obvious from reasonable inspection or its exercised within 1 year of disposition

interest belonging to person in actual occupation who has a property right unless occupier didn’t disclose it on enquiry or it was not obvious on inspection

Question 25

adverse possession in registered land

Answer 25

can apply for registration after 10 years of exclusive, physical possession without permission but registered owner given chance to object

Question 26

co-ownership of legal estate is held as:

Answer 26

joint tenants only: undivided, equal interest in the whole property with right of survivorship but whenever land is held by more than one person, a trust of land automatically arises and co-owners have behind-the-scenes, beneficial equitable interests no more than 4 legal owners who must be over 18

Question 27

declaration of trust between co-owners

Answer 27

conclusively sets out how beneficial ownership is held

Question 28

how to sever a joint tenancy and convert into TIC

Answer 28

-one tenant properly serves written notice -party treats it as separate or deals with the equitable interest (selling, disposing, mortgaging) -mutual agreement or course of dealings indicating intention -bankruptcy of tenant, forfeiture

Question 29

overreaching

Answer 29

so buyer can take free of beneficiary's interest: pay purchase money to 2 or more trustees alternatively, obtain written release from beneficiary of their rights, usually by having them sign the contract prior to exchange

Question 30

What to do if co-owners can't agree how or when to dispose of a property

Answer 30

s14 Trusts of Land and Appointment of Trustee Act: can apply to court for an order about trustee's duties such as order to sell s15 sets out factors court must consider: intentions of those who created the trust, purposes for which property is held, welfare of occupying minors

Question 31

reversion

Answer 31

a landlord's interest in the land that they have let - doesn't have right of physical possession

Question 32

assignment

Answer 32

when tenant disposes of their entire remaining interest in the lease

Question 33

licence to assign

Answer 33

between landlord and assignee (who is taking up the rest of the tenancy) to create privity of contract between them

Question 34

sublease

Answer 34

when tenant disposes of less than entire remaining interest in lease lease between original tenant and landlord is head-lease subtenant not in any privity of contract with landlord

Question 35

essential characteristics of a lease

Answer 35

certainty of term exclusive possession (if multiple tenants, must all be granted at same time in same document with same interest and right of possession) appropriate formalities rent not essential

Question 36

reversionary lease

Answer 36

one that doesn't take place until a later date

Question 37

lease must be created by deed unless

Answer 37

3 years or fewer, which can be created orally without formalities if tenant takes possession at best rent

Question 38

qualified alterations covenant

Answer 38

tenant can make non structural alterations with landlord consent, which should not be unreasonably witheld

Question 39

absolute bar on alterations

Answer 39

prohibits tenant from making structural alterations, can ask the landlord but LL withholding consent doesn't need to be reasonable

Question 40

forfeiture remedy

Answer 40

right of a landlord to end a lease early and re-enter premises only available if expressly included in terms of the lease but still statutory protections for tenant like: right to settle arrears and apply for releif landlord must serve notice specifying breach, provide reasonable time to remedy breach and set out any compensation payable to LL for breach

Question 41

Jervis v Harris clause

Answer 41

self-help clause giving LL right to enter to make a repair if tenant breaches repairing covenant, LL gives tenant notice to do the work and tenant doesn't comply LL can recover costs of repair as a debt

Question 42

Right to assign a lease

Answer 42

for leases made after 1995, tenants automatically released from covenants on assignment so LL might require an Authorised Guarantee Agreement so they act as guarantor for immediate successor for leases made before 1996, original LL and tenant remain liable to each other even after assignment unless they expressly release assignment must be by deed

Question 43

Qualified covenant against assignment

Answer 43

prohibits tenant from assigning unless LL consents or certain conditions are met but LL cannot unreasonably withhold

Question 44

Easements (which must benefit the land, not be a personal right) can be created by:

Answer 44

Express grant or reservation Prescription: through long use - must show been exercising it without permission for 20 years without challenge Implied grant or reservation: -by necessity for a right of way -by existing use if it is continuous, apparent on reasonable inspection, necessary for reasonable enjoyment of the land/enhances it and used by the seller on the date of conveyance -by statute

Question 45

Covenants: in equity the burden will pass if

Answer 45

it's a restrictive covenant that touches and concerns the land - benefits the land not person was intended to run w the land and successor has notice of the covenant

Question 46

Covenants: in equity the benefit will pass if

Answer 46

the covenant touches and concerns the land or through annexation, by express assignment

Question 47

Covenants: burden will pass by law if

Answer 47

generally doesn't pass so need to obtain indemnity covenant from next buyer cannot accept benefits without accepting burden that goes with it (for ex. pay for upkeep of road to be able to use it)

Question 48

Covenants: benefit will pass by law if

Answer 48

covenant touches and concerns the land was intended to run with the legal estate held by covenantee, who held it at the time covenant was made the covenantee's successor in title now holds legal estate

Question 49

Mortgage redemption date

Answer 49

earliest date on which the loan can be repaid in full and property redeemed

Question 50

mortgage is subject to which third party interests? (interests that are superior if default and mortgagor sells property)

Answer 50

-legal tenancy of unreg land granted before mortgage -legal tenancy of reg land of up to 7 years -equitable tenancy of unreg protected as C(iv) land charge -interest of an occupier who contributed to purchase price -equitable tenancy of reg land of up to 7 years and tenant is in occupation

Question 51

once legal mortgage is registered as a charge, mortgagee/lender has what rights if borrower defaults:

Answer 51

-sue for debt -take possession (only through court is there is a dwelling) and exercise managerial powers -foreclose (doesn't arise until after contractual date for repayment): court order that transfers legal estate from borrower to lender -sell the property: doesn't require court order if redemption date passed and over 2 months arrears

Question 52

What's in the contract package?

Answer 52

draft contract PIF FCF copy of seller's title and title plan any other relevant documents

Question 53

additional documents in contract package for leaseholds

Answer 53

drat lease annexed to it landlord's freehold title relevant planning permission and/or building regulation consent service charge budget details of any management company a new build warranty if it's less than 10 years old

Question 54

additional docs for sale of existing lease

Answer 54

outgoing tenant's leasehold title existing lease leasehold info form copy of last 3 years service charge accounts copy of landlord's freehold title

Question 55

SDLT chargeable on grant of new lease is based on?

Answer 55

lease premium paid and net present value of total rent payable over the lease term