Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

SQE FLK > 🌾Land: Freehold covs, leases > Flashcards

🌾Land: Freehold covs, leases Flashcards

(48 cards)

Start Studying
1
Q

What is a freehold covenant

A

promises expressly made between neighbouring freehold owners.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Who is the covenanter/covenantee

A

Covenantor-The person who makes the promise, land in respect of which it is made has the burden of the covenant.
Covenantee-The person to whom the promise is made, and that person’s land is said to have the benefit of the covenant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is annexation of a freehold covenant?

A

denotes that the benefit of a covenant is attached to the land of the covenantee so that it passes automatically to successors of the covenantee.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is assignment of a freehold covenant?

A

The express transfer of the benefit of a covenant to a successor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Freehold covenant

What type of right/why?

A

Not capable of being legal (not listed in s1(2) LPA 1925
Can therefore only be equitable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Freehild covenant

Formalities for creation?

A

Signed writing but deed best

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Positive/restrictive cov differences?

A

Positive=requires some effort or expenditure to perform obligation
Restrictive-requires no such effort or expense

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Enforceability of freehold covs in unregistered land

A

Register as Class D(ii) Land charge before date of completion

Pre 1926-enforceable against anyone but equities darling

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Enforceability of freehold covs in registered land

A

Is an IARE-notice on charges register by date of transfer to buyer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Freehold covs: enforceability by original parties?

A

Both bound by privity of contract
Original covenantee=can enforce benefit against anyone with burden UNLESS parted with all the land for the benefit of which the covenant was taken.
Original covenantor=Liable forever for all covs (EXCEPT personal) no matter who breaches

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Freehold covs: who are they deemed made on behalf of

A

deemed to be made by the covenantor on behalf of their successors in title and persons deriving title under them UNLESS the deed contains a statement to the contrary.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Freehold covs: passing of burden

A

At common law: no
In equity: ONLY if conditions in Tulk v Moxhay apply:
1. Cov restrictive
2. For benefit of dom land RETAINED by covenantee
3. Touches and concerns land
4. Parties intended burden to run with land (Express in creating doc OR implied for post 1925 covs unless contrary in deed)
5. Servient owner has notice (ie. land charge/notice in charges reg)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Freehold covenants: Passing of benefit at common law

A

YES by-
a. Assignment
▪ Must occur at same time as transfer of land
▪ signed writing (by assignor)
▪ Written notice of assignment given to person with burden

b. OR Annexation
1. Cov touches and concerns land
2. Original covenantee and buyer have legal estate in land
3. Intention that the benefit should run
ie. Express words
OR implied by s78 LPA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Freehold covenants: Passing of benefit in equity

A

YES, by -
a. Assignment
▪ Occurs at same time as transfer of the land
▪ signed writing (by assignor)
▪ Written notice of assignment given to person with burden

b. OR Annexation
Express-in deed
Implied-where obviously intended
Statutory under s78
1. Cov created after 1925
2. cov must touch and concern land
3. Land must be easily identifiable from plan/description/other reference in transfer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Freehold covs: can the burden of a positive cov be made enforceable?

A
  1. Lease instead of selling
  2. Indemnity cov from buyer
  3. Doctrine of mutual benefit and burden
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Freehold covs: where will an indemnity cov be noted?

A

In charges register

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Freehold covs: 3 issues with indemnity covenants?

A
  1. If chain is broken
  2. If middle chain doesn’t exist/goes into liquidation/cant be found
  3. Owner doesn’t have sufficient money to pay damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Freehold covs: what is the doctrine of mutual benefit and burden in Halsall v Brizell?

A

If take benefit of right, must take burdens in same deed.
Burden must be related to exercise of benefit
Successors must have been able to choose to take benefit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

When will a covenant touch and concern the land?

A

Swift investment test
1. Covenant would cease to benefit owner if it was separated from the land
2. Covenant affects the nature, quality, mode of user or value of the land
3. Covenant not expressed to be personal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Freehold covenants: what wording in a deed shows express annexation of a freehold covenant

Study These Flashcards
A

‘the owners or owner for the time being of [named land]’, or by stating that the covenant is taken ‘for the benefit of [named land]’.

21
Q

Freehold covenants: what is a third way the benefit can pass in equity?

Study These Flashcards
A

Building schemes:
- Defined area w/ 1 owner
- Estate laid out in lots subject to restrictions intended to be imposed on all lots
- Owner intends restrictions to apply to all lots of land sold
- Original buyers bought their lots on the basis that the restrictions would benefit all of the lots in the scheme.

22
Q

Freehold covenants: Remedies for breach of positive covenant

Study These Flashcards
A

○ Damages for loss, inc sum for future loss (against original covenantor; or successor)
○ Specific performance (breach by original covenantor)

23
Q

Freehold covenants: remedies for breach of restrictive covenant

Study These Flashcards
A
  1. Injunction (for existing or anticipated breach) (equitable so discretionary)
  2. Damages in lieu of injunction where:
    * injury small
    * capable of being estimated in money
    * adequate to compensate in money
    * opressive to grant injunction
24
Q

Freehold covenants: 4 ways they can be discharged

Study These Flashcards
A
  1. Express release: are modification/release with covenantee via deed BUT will sometimes seek payment
  2. Common ownership
  3. Apply to Lands Chamber of Upper Tribunal under S84 LPA 1925 for release/modification
  4. Breach insurance
25
Leases: capable of being legal?
Yes
26
Leases: formalities for creation
Over 3y: **Deed** 3y or less: **Parol lease exception** **Equity** may intervene where: a. **There's a contract to create or transfer a legal estate** -contract -complying with s 2 LPMPA 1989 -specific performance available clean hands (person seeking not in breach) b.**Attempt to use a deed but its not valid** -a contract -complying with s 2 LPMPA -clean hands
27
Essential characteristics of a lease
1. Exclusive possession 2. Certainty of duration (definite term) 3. Correct formalities
28
Leases: what is exclusive possession?
The ability to the tenant to exercise control over the land, meaning they exclude all (inc. landlord) from land and they need not be in occupation
29
Leases: when will a flat share amount to exclusive possession?
will be lease if signed on identical terms at same time
30
# Leases when will there be no lease despite occupier having exclusive possession (4)
1. parties clearly dont intend to enter legal relationship 2. occupation required in connection with service/duties from tenant to ll (eg.employment/holdingan office) 3. Relationship between the parties is that of vendor and purchaser and occupancy takes place under a contract for the sale of the land; 4. Owner has no power to grant a tenancy.
31
Leases: what is certainty of duration
Must have a fixed and ascertainable period (definable beginning and end)
32
Leases: what is the effect of attempting to to create a lease for life of tenant?
Creates a 90- year lease, ending either on the death of the tenant, or as provided in the agreement itself
33
Leases: does a break clause prevent there being certainty of duration?
No if the term is fixed
34
Is rent essential for a lease?
Not essential but supports view parties intended fomal landlord-tenant relationship
35
What is created if there is an essential characteristic of a lease missing?
Licence-a personal right that wont bind successor and cant be assigned
36
Can a licensee in occupation benefit from statutory protection?
No
37
Types of lease
**Fixed term**: contract giving tenant right to occupy premises for certain fixed period of time **Periodic**: Where lease runs from period to period, renewing automatically at end of each period until terminated by notice to quit by either party (=doesn’t offend the rule as to certainty of duration. Where haven't agreed to fixed term, regular payment of rent will give rise to periodic tenancy.
38
Leases: what landlord covenants are implied in absence of express obligation
**Quiet enjoyment:** Tenants lawful possession of land wont be substantially interfered with by acts of landlord. **Repair:** Where no express repairing obligation, landlords must keep in repair: -structure/exterior of dwelling house -supply of water, gas, electricity, sanitation - installations for space heating and heating water. HOWEVER landlord only liable if theres disrepair that’s been notified to them
39
What tenants express covenants will be included in a lease? (5)
1. Rent 2. Contribution to insurance 3. Repair 4. Alterations 5. Alienation (Not to assign/sublet)
40
Leasehold covenant enforceability: distinction between types of lease
OLD lease: granted before 1/1/1996 NEW lease: granted on/after 1/1/96
41
Leasehold covenant enforceability: rules for old leases
ORIGINAL T: remains liable for burden of covs via privity of contract ORIGINAL LL: * Privity of contract with original T * Privity of estate with current T NEW T: * Privity of estate with current LL (for duration lease is invested in them) so liable for all real covenants: covs **that touch and concern** land (Swift investments) * OR may enter direct cov=privity of contract NEW LL (sale/assignment of reversion) Benefits/burdens of LL covs which **touch and concern** land whilst reversion vested in them
42
What is the swift investment test
1. Cov must benefit only the dominant owner for the time being and would cease to do so if separated from the land 2. Cov must affect the nature, quality, mode of user or value of the land 3. Cov must not be expressed to be personal
43
Recovery between tenants if tenant sued for breach they didn’t commit
□ At common law against tenant in possession at time of breach (Moule v Garrett) □ OLD: indemnity cov implied on any assignment for value □ NEW: Express indemnity cov given by immediate assignee (not implied like old)
44
Leasehold covenant enforceability: rules for new leases
ORIGINAL T □ Bound by covs whilst lease vested in them but automatically released on assignment □ UNLESS LL require AGA ORIGINAL LL MUST apply to tenant for release OR can limit liability by stating in lease that their liability ends once they’ve disposed of the reversion NEW T/LL Bound/burdened by covs whilst lease vested in them unless theyre expressed to be personal
45
How can landlords recover from former tenants/what can the tenant do?
If former T remains liable due to either: a. Privity of contract in an old lease b. AGA in new lease LL can recover fixed charge from former T for payment of rent (s17) IF first serve a **default notice** on former T within **6mo** of fixed charge falling due If former T pays in full, can request an overriding lease from LL which is: 1. same duration as original lease LESS three days 2. on the same terms as the original lease
46
What are tenants remedies for breach of a landlord covenant?
1. Specific performance/injunction 2. Damages 3. Self help
47
Can a tenant withhold rent for breach of a landlord covenant
No BUT: **Self Help**: * For repair, may notify repair needed and tenant will carry out if landlord fails to do so * If they do, they can withhold rent until cost of repair repaid (common law set off) * If LL then sues, equity may allow T to have unliquidated claim set off against the liability for rent (will only occur where the connection between the two claims is sufficiently direct so that it would be manifestly unjust not to allow set off)
48
9 Ways a lease can end
1. effluxion of time 2. notice to quit; 3. surrender; 4. Merger 5. break clause 6. disclaimer (Bankruptcy/liquidation of tenant) 7. frustration; 8. repudiatory breach; 9. forfeiture

SQE FLK (61 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions