Land Law Flashcards
(37 cards)
Your client has agreed to purchase the unregistered freehold of a large farm. The seller signs and dates the transfer deed in the presence of a witness who attests the seller’s signature.
Which of the following statements best describes your client’s position in respect of the legal ownership of the farm?
- The transfer deed is of no effect because it does not include all of the terms expressly agreed by the parties
- The client holds the legal title but it will revert back to the seller if not registered within two months
3.The seller holds the property on trust for the client until the transfer is registered with the Land Registry
- The transfer will not take effect at law until title is registered with the Land Registry
- The transfer deed is of no effect because the client has not signed the document
The client holds the legal title but it will revert back to the seller if not registered within two months
Correct
This is correct. The transfer of the unregistered freehold has been effected by deed so the legal title passes to the client on completion, who then has two months to register the land for the first time. See ss 4, 6 and 7 Land Registration Act 2002.
A purchaser has agreed to buy the registered freehold of a large office block. The buyer and seller both sign a document headed ‘deed’ and their signatures are attested by a witness. The document is then dated.
Which of the following statements best describes the legal position?
- The purchaser holds the legal title to the property
- The purported deed is defective and the purchaser has no interest in the property
- The purported deed is defective but a contract may be construed from the failed grant
- The purchaser holds the legal title but it will revert back to the seller if not registered within two months
- The transfer will not take effect at law until title is registered with the Land Registry
- The transfer will not take effect at law until title is registered with the Land Registry
This is the best answer. The transfer must be completed by registration to take effect at law. See LRA 2002, s27(2)(a) and s27 (1).
A buyer and seller enter into an agreement to buy/sell a freehold estate. They enter into a document which is described as a contract for the sale of land. The document contains all the agreed terms and is signed by the seller in the presence of a witness who attests their signature.
Which of the following options correctly describes the validity of this document?
- The document is invalid because it does not comply with the requirements for a land contract
- The document is valid because it complies with the requirements of a valid contract for sale at law
- The document is invalid because it has not been registered at the Land Registry yet
- The document is valid because it complies with the requirements for a land contract
- The document is valid because it complies with the requirements for a deed
The document is invalid because it does not comply with the requirements for a land contract
Correct
This is correct. A contract for the sale of land must comply with LP(MP)A 1989, s 2;
it must be in writing,
contain all the agreed terms
and be signed by both parties.
The document is not a valid contract as it has not been signed by both the buyer and the seller.
There is no valid deed as the document has not been intended as a ‘deed’ or delivered. Further, the parties are trying to enter into an contract, rather than the actual transfer of the land.
If this had been validly created, it would grant the buyer an equitable interest in the land called an ‘estate contract’.
You act for a refuse collection and disposal company. who recently entered into negotiations with Waste Limited, the owner of a landfill site. Waste Limited has offered your client the opportunity to use the site. The first offer is a 12-month licence to use the site for a payment of £200,000. The second (alternative) offer is the grant of a 12-month lease of a specified part of the site for a payment of £225,000. In either case the maximum amount of refuse that your client may deposit is 25 metric tonnes.
Which of the following options is the best advice to your client as to which offer they should accept?
Your client should accept the lease because it will entitle R to sue for breach of contract should Waste Limited breach the terms
Your client should accept the lease because it would give it a personal right in the land
Your client should accept the licence because it would give it a proprietary right in the land
Your client should accept the lease because it would enable it to recover use of the right to use the site if Waste Limited subsequently tried to revoke the right.
Your client should accept the licence because it is capable of being enforced against third parties should Waste Limited sell the site
Incorrect
Your client should accept the lease because it will entitle R to sue for breach of contract should Waste Limited breach the terms
This is incorrect. Although it is correct to say that the lease would entitle your client to sue for breach of contract if Waste Limited breaches the terms, it is not the reason your client should accept the lease. Revisit your understanding of the nature and distinction between personal / proprietary rights in the land.
CORRECT
Your client should accept the lease because it would enable it to recover use of the right to use the site if Waste Limited subsequently tried to revoke the right.
Correct
This is correct. A lease is a proprietary right in the land. This means it is enforceable in rem, the right can be recovered. A licence is a personal right, which means the right cannot be recovered if Waste subsequently tried to revoke it, because a personal right is enforceable in personam.
You act for the sole buyer of a registered freehold estate. The seller’s solicitor sends you the agreed sale transfer documents prior to exchange and completion of the transaction.
The first document is labelled ‘Contract for Sale’. The second document is labelled ‘TR1’.
Which of the following options correctly describes the legal position about the execution of these documents by your client in order to validly transfer legal title to your client?
Both documents must be executed by your client in the presence of a witness who must attest their signature.
The first document needs to be signed underhand by your client. It does not need witnessing. The second document needs to be signed by your client in the presence of a witness who must attest their signature.
Both documents need only be signed underhand by your client. They do not need to get their signature witnesses.
The first document needs to be signed underhand by your client. It does not need witnessing. The second document does not need to be signed by your client.
The first document needs to be signed by your client in the presence of a witness who must attest their signature. The second document needs to be signed underhand by your client. It does not need witnessing.
The first document needs to be signed underhand by your client. It does not need witnessing. The second document does not need to be signed by your client.
Correct
This correctly the legal position. The first document is a contract - it needs to comply with LP(MP)A 1989, s 2 i.e. be in writing, contain all the terms and be signed by both the parties. The buyer and seller’s signatures do not need witnessing, and the parties can sign duplicate contracts, which are then physically exchanged.
The TR1 is a transfer deed. It must comply with LP(MP)A 1989, s 1 i.e. be intended as a deed, signed by the seller in the presence of a witness who attests their signatures and be delivered. To effect a legal transfer of the land, it is not necessary for the buyer to execute the TR1. In practice, the buyer will execute the TR1 if they are entering into any freehold covenants or making a declaration of trust. However, this does not apply on the facts.
A landlord and tenant enter into contract for lease. They enter into a written document, which they both sign. The contract contains all the terms by reference to the agreed form of lease.
Which of the following options correctly describes the validity of this document?
The document is valid because it complies with the requirements for a land contract
The document is valid because it complies with the requirements of a valid contract for sale at law
The document is invalid because it does not comply with the requirements for a land contract
The document is invalid because it has not been registered at the Land Registry yet
The document is valid because it complies with the requirements for a deed
The document is valid because it complies with the requirements for a land contract
Correct
This is correct. A land contract must comply with LP(MP)A 1989, s 2; it must be in writing, contain all the agreed terms and be signed by both parties. The document is a valid contract as it complies with all these requirements. Incorporation of all the agreed terms can be by reference, which is common practice, and has occurred here.
This contract for lease grants the tenant an equitable interest in the land called an ‘estate contract’.
There is no valid deed as the document has not been intended as a ‘deed’ or delivered. Further, the parties are trying to enter into an contract, rather than the actual transfer of the land.
R is a refuse collection and disposal company who recently entered into negotiations with W, the owner of a landfill site. W has offered R the opportunity to use the site. The first offer is a 12-month licence to use the site for a payment of £200,000. The second (alternative) offer is the grant of a 12-month lease of a specified part of the site for a payment of £225,000. In either case the maximum amount of refuse that R may deposit is 25 metric tonnes. Which of the following options correctly explains whether R should accept the lease or licence?
- R should accept the lease because it will entitle R to sue for breach of contract should W breach the terms
- R should accept the lease because it would enable R to recover use of the right to use the site if W subsequently tried to revoke the right.
- R should accept the licence because it would give R a proprietary right in the land
- R should accept the lease because it would give R a personal right in the land
- R should accept the licence because it is capable of being enforced against third parties should W sell the site
Last year, B granted to A a legal mortgage over B’s business premise to secure a capital and interest repayment loan. The mortgage deed did not mention any power of sale for A. B’s business is declining and B has not made any mortgage payments for four months. Today, B received a letter from A stating that A intends to sell the property and recover the money due from the sale proceeds.
Which of the following statements is correct?
A may sell B’s property as the power has arisen under LPA 1925, s 101, and is exercisable as some interest has been in arrears for at least two months
The Lender cannot sell the property as three months must pass after the letter warning of the sale has been received
A may sell the property as LPA 1925, s 101 gives A the right to sell as soon as mortgage money is due.
The Lender may sell the property as the legal date for redemption has passed
A cannot sell B’s property as the mortgage deed contained no express right for A to do so
A may sell B’s property as the power has arisen under LPA 1925, s 101, and is exercisable as some interest has been in arrears for at least two months
This is correct: if there is no express provision in a mortgage deed (as here) then the statutory provisions in LPA 1925 apply. The right has arisen as one instalment of capital became due as soon as one payment had been missed: Payne v Cardiff; and the right is exercisable as some interest has been in arrears for two months: LPA 1925, s 103(ii).
C is the owner of a cottage. D who lives on a neighbouring farm causes their drone to hover above, and fly over and around, the cottage – at varying heights. On the occasions when the drone is only a few metres above ground level it agitates C’s dogs, causing them to howl and bark.
Which of the following correctly explains whether D is trespassing on C’s land?
D is trespassing because damage is being caused as the dogs are agitated by the drone
D is not trespassing because the drone is not physically touching or damaging C’s land
D is trespassing because the drone is flying in the lower airspace above C’s land
D is trespassing because a landowner owners everything up to the sky and down to the centre of the earth
D is not trespassing because the drone is flying in the upper airspace above C’s land
Correct
This is correct. The drone is trespassing on C’ s land. C is entitled to damages. It does not matter that the drone has not caused physical damage. There is a very old principle that a landowner owns everything up to the sky and down to the centre of the earth. However, the common law distinguishes between the lower airspace (to which a landowner has a right in) and the upper airspace (to which a landowner has no right). Where the lower airspace is intruded upon or invaded in some way, the landowner may be able to bring an action for trespass irrespective of whether any damage has been caused. Examples include: cranes used for construction on adjacent land and advertising signs. Therefore, the drone flying only a few metres above the ground of C’s land would be classed as being in the lower airspace.
Last year, B granted to A a legal mortgage over B’s business premise to secure a capital and interest repayment loan. The mortgage deed did not mention any power of sale for A. B’s business is declining and B has not made any mortgage payments for four months. Today, B received a letter from A stating that A intends to sell the property and recover the money due from the sale proceeds.
Which of the following statements is correct?
A cannot sell B’s property as the mortgage deed contained no express right for A to do so
A may sell the property as LPA 1925, s 101 gives A the right to sell as soon as mortgage money is due.
The Lender cannot sell the property as three months must pass after the letter warning of the sale has been received
The Lender may sell the property as the legal date for redemption has passed
A may sell B’s property as the power has arisen under LPA 1925, s 101, and is exercisable as some interest has been in arrears for at least two months
Correct
This is correct: if there is no express provision in a mortgage deed (as here) then the statutory provisions in LPA 1925 apply. The right has arisen as one instalment of capital became due as soon as one payment had been missed: Payne v Cardiff; and the right is exercisable as some interest has been in arrears for two months: LPA 1925, s 103(ii).
A lender loans money to a borrower in return for a charge by way of legal mortgage over the borrower’s registered land. The interest rate for the loan is 10% above the Bank of England’s base rate.
Which of the following statements best sets out the circumstances in which the interest rate is most likely to be held to be unconscionable?
The land is a freehold estate, the borrower is a residential owner and has also received legal advice.
The land is a leasehold estate, the borrower is a commercial tenant and has also received legal advice.
The land is a freehold estate, the borrower is a commercial owner and both lender and borrower are individuals.
The land is a leasehold estate, the borrower is a residential tenant and the loan is to pay for the extension of the leasehold term.
The land is a freehold estate, the borrower is a residential owner and the loan is to fund the borrower’s business expansion.
The land is a leasehold estate, the borrower is a residential tenant and the loan is to pay for the extension of the leasehold term.
Correct
This is correct and the facts are akin to the case of Cityland v Dabrah (1968). As with this case, if the property is a leasehold and the borrower is a residential tenant who needs the money to extend the length of the lease, there is a risk that the lender could take advantage of the borrower’s circumstances and impose a higher interest rate. The borrower is more likely to agree to unconscionable terms to ensure the loan is made.
The owner of a registered freehold property, used as a venue for weddings and parties, grants a legal mortgage over the property in favour of a lender as security for a loan. The mortgage deed contains the following terms:
(i) the lender may use the property free of charge for their annual Christmas party until the end of the mortgage term; and
(ii) the lender has an option to purchase the freehold until the end of the mortgage term.
Which of the following statements is correct in respect of the validity of the mortgage terms?
Term (i) is an unenforceable collateral advantage but term (ii) is likely to be upheld by a court.
Term (i) and term (ii) are both enforceable terms and likely to be upheld by a court.
Term (i) and term (ii) are both unenforceable terms and likely to be rewritten by a court.
Term (i) and term (ii) are both unenforceable terms and likely to be struck out by a court.
Term (i) is an enforceable collateral advantage but term (ii) is inconsistent with the right to redeem the mortgage.
Term (i) is an enforceable collateral advantage but term (ii) is inconsistent with the right to redeem the mortgage.
Correct
This is correct.
Term (i) is a collateral advantage but as it expires at the end of the mortgage term and as long as it is not onerous or in the nature of a penalty, it will be upheld by the court as in the case of Biggs v Hoddinott.
Term (ii) gives the lender the option to purchase the freehold at any time during the term and is likely to be struck out as in the case of Samuel v Jarrah Timber and Wood Paving Corporation Limited.
Which of the following statements best sets out the circumstances in which the interest rate is most likely to be held to be unconscionable?
The land is a freehold estate, the borrower is a residential owner and the loan is to fund the borrower’s business expansion.
The land is a freehold estate, the borrower is a commercial owner and both lender and borrower are individuals.
The land is a freehold estate, the borrower is a residential owner and has also received legal advice.
The land is a leasehold estate, the borrower is a residential tenant and the loan is to pay for the extension of the leasehold term.
The land is a leasehold estate, the borrower is a commercial tenant and has also received legal advice.
The land is a leasehold estate, the borrower is a residential tenant and the loan is to pay for the extension of the leasehold term.
A borrower and lender enter into a document, which is described as a ‘mortgage deed’. The document purports to grant a mortgage over the borrower’s registered legal freehold. The agreement is signed by both the borrower and lender, witnessed and then dated. The lender does not do anything further with the document.
Which of the following options best describes what kind of mortgage (if any) has been granted by the borrower?
The borrower has not granted a mortgage because the document does not comply with the statutory requirements of a deed.
The borrower has granted an equitable mortgage. Equity will recognise the ‘failed legal mortgage’ as a ‘contract to grant a legal mortgage’.
The borrower has granted a legal mortgage because the statutory requirements of a deed have been met.
The borrower has not granted a mortgage because the document has not been registered.
The borrower has granted an equitable mortgage because it is a mortgage of an equitable interest in the land.
Correct
This is correct. Although a valid deed has been created on the facts - the document complies with LP(MP)A 1989, s 1 - it has not been registered by the lender. No valid legal mortgage has therefore been created on the facts. Equity will, however, recognise this an equitable mortgage in the circumstances. The document complies with LP(MP)A 1989, s 2 and equity will therefore recognise it as a ‘contract to grant a legal mortgage’. An equitable mortgage does not need to be registered to be validly created.
A landowner owns the freehold of a large property. The self-contained basement flat is rented to a tenant under a 3 year lease. In the lease, the tenant is granted a right to use the landowner’s garden shed to store bikes. The tenant’s bikes take up all of the space in the shed. As the bikes are expensive, the tenant secures the shed with a padlock, which the landowner does not have a key for.
Which of the following statements best explains why the right to store is not capable of being an easement?
The right is not capable of being an easement because the right is negative and the court is not prepared to recognise new negative easements
The right is not capable of being an easement because it does not touch and concern the dominant land
The right is not capable of being an easement because the servient land owner is not left with any reasonable use of the shed
The right is not capable of being an easement because permission must be sought by the dominant land owner to exercise the right
The right is not capable of being an easement because there is no diversity of ownership
A freeholder owns the freehold of a large property and garden. 6 years ago the freeholder let the top floor flat to a tenant under a 5 year legal lease. After moving in, the tenant asked the freeholder to use part of the garden to grow vegetables and relax in. The freeholder agreed. Last year, the 5 year lease expired and a new 5 year legal lease was granted on exactly the same terms as the previous one. There was no reference to the right to use the garden.
Which of the below statements best explains whether the tenant has acquired an easement to use the garden?
The tenant has not acquired an easement because the top floor flat can be used for residential purposes without use of the garden
The tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925
The tenant has not acquired an easement because this is a reservation and the right to use the garden is not necessary to access the top floor flat
The tenant has acquired an express legal easement under the new 5 year lease
The tenant has acquired an easement impliedly under the rule in Wheeldon v Burrows (1879)
Correct
This is correct. the tenant has acquired an easement impliedly under s.62 of the Law of Property Act 1925. On the grant of the second 5 year lease, the informal permission to use the garden is upgraded to an easement and implied into this lease. The facts are similar to Wright v Macadam [1949] 2 KB 744, which demonstrates this mode of acquisition.
An easement can be acquired expressly or impliedly. You should consider first if there has been express acquisition – is the easement written down and does it comply with the necessary formalities? If not, consider if the circumstances mean the easement could have been acquired impliedly by one of the recognised modes. Certain modes of implied acquisition only apply if it is a grant, rather than a reservation, situation. It is therefore important that you understand not only the different modes of acquisition, but also the distinction between reservation and grant.
A man and a woman are adjoining land owners. The man has told the woman that it plans to build a large extension at the back of its house. The woman is very concerned that this will block the sun to her garden and make it very dark.
Can the women claim an easement in respect of the man’s land that could stop the extension from being built?
The woman can claim an easement of light which the proposed extension would block
The woman can claim an easement of light because it is a recognised negative easement
The woman cannot claim an easement of light as the court will not recognise new negative easements
The woman cannot claim an easement of light as there is no defined aperture in a garden
The woman cannot claim and easement as there is no such thing as a right to a view
The woman cannot claim an easement of light as there is no defined aperture in a garden
Correct
This is correct. A right to light is one of a few recognised negative easements - it is not a ‘new’ negative easement, which the court will not recognise.
However, there is no general right to light. A right to light is an easement that gives a landowner the right to receive light through defined apertures in buildings or on their land. There is not a defined aperture in the woman’s garden to through which the right to light could be claimed on the facts, the women is just trying to claim a general right.
A landlord was the registered freehold proprietor of two adjoining plots of land. Fifteen years ago, the landlord made a valid contract with a tenant in which it agreed to grant a 20-year legal lease of the southern plot (commencing on the date of the contract). The contract stipulated that the tenant was to use the southern plot for a specified purpose.
Immediately the contract was made, the landlord and tenant appreciated that the tenant could only use the southern plot for the specified purpose if the tenant was able to park a car on the northern plot.
The landlord, who had retained possession of the northern plot, told the tenant that it could park a car on that plot. The tenant has parked a car on the northern plot for the past 15 years.
Which one of the following statements is a correct description of the tenant’s right to park on the northern plot?
The tenant can park their car by reason of an express equitable easement.
The tenant can park their car by reason of an implied equitable easement.
The tenant can park their car by reason of an implied legal easement.
The tenant can park their car by reason of an express legal easement.
The tenant can park their car by reason of a prescriptive easement.
The tenant can park their car by reason of an implied equitable easement.
Correct
This is the correct answer. Where an estate is transferred or granted to a person for a particular purpose, and that purpose can only be realised if the transferee or grantee can exercise an easement over land retained by the transferor or grantor, that easement will be implied by reason of common intention: Wong v Beaumont [1965] and Donovan v Rana [2014] EWCA Civ 99.
Since the tenant can only use the southern plot for the specified purpose if it is able to park on the northern plot, an easement of parking will be implied.
Implied easements derive their legal or equitable status from the transaction into which they are implied. Since the tenant acquired an equitable lease (arising by reason of the specifically enforceable contract to grant a lease: R v Tower Hamlets LBC ex parte Von Goetz [1999] QB 1019), any easements implied into that lease would be equitable.
A farmer owns the freehold of a farm. Five years ago the farmer leased out the southern part of the farm to a tenant under a four year legal lease. The farmer retained the northern part of the farm to live in. During the lease, the farmer continued to use the drains which serve the northern part of the farm and run under the southern part of the farm leased to the tenant.
Last year, the four year lease expired. The farmer granted the tenant a new four year legal lease on exactly the same terms as the previous one. There was no reference to the right to use the drains.
Which of the following statements best explains whether the farmer has acquired an easement to use the drains?
The farmer has not acquired an easement.
The farmer has acquired an easement impliedly under s.62 Law of Property Act 1925.
The farmer has acquired an easement impliedly by common intention.
The farmer has acquired an easement impliedly by necessity.
The farmer has acquired an easement impliedly under the rule in Wheeldon v Burrows.
The farmer has not acquired an easement.
Correct
This is correct. This is an attempted reservation. There is no mention of the right to use the drains in the lease, so it cannot be an express easement.
The only methods of implied acquisition available for reservations are: necessity and common intention. Necessity will not apply - necessity is only applicable to rights of way where there is no other means of access to the land. The courts will only allow an easement of common intention in a reservation situation if there is no other possible interpretation of the facts (Peckham v Ellison; Re Webb’s Lease). Here, the farmer can use its retained land without the drainage right and had two opportunities to reserve this right (in the first and second leases) (Yeung v Patel) so the court is unlikely to imply this reservation.
Your client is the registered freeholder of two adjacent plots of land, Plot 1 and Plot 2. Five years ago, your client decided to keep Plot 1 but sold Plot 2 to a buyer. Both your client and the buyer signed the transfer deed which contained the following provision:
“the buyer covenants on behalf of itself and its successors in title not to use Plot 2 for any purpose other than as a private dwelling house.”
Last month your client sold Plot 1 to a new owner. Which of the following statements best explains how the benefit of the covenant has passed to the new owner in equity?
The benefit has passed by statutory annexation
The benefit has passed under a scheme of development
The benefit has passed by express annexation
The benefit has passed by express assignment
The benefit has passed by implied assignment
The benefit has passed by statutory annexation
Correct
This is the best answer. Section 78(1) Law of Property Act 1925 serves to annex the benefit of the covenant, as long as the parties have not expressly excluded s78, which there is no indication of on the facts.
The other answers are incorrect because there is no evidence that your client assigned the benefit of the covenant to the new owner; the wording of the covenant relates to the burden rather than the benefit so there was no express annexation and there is no evidence of a scheme of development. Further, implied assignment is not a means of passing the benefit in equity, it is a means of passing the benefit at common law.
A man was the owner of two adjoining registered freehold properties, one called House 1 and one called House 2.
Three years ago, the man sold House 2 to a woman. The woman covenanted in the transfer deed with the intention of binding the land known as House 2 not to build any structure in the grounds of House 2 without the approval of the owner of House 1. The man’s solicitor did nothing to protect the covenant.
Two years ago, the woman sold House 2 to a new owner. The new owner has recently built a structure in the garden of House 2 without obtaining the man’s approval.
Which statement best explains why the burden of this covenant has failed to pass to the new owner in equity?
The burden of the covenant will not pass because the new owner had no notice of the covenant
Correct
This is correct. As House 2 is registered land, the man should have protected the covenant by the entry of a notice on the charges register of House 2 (s32 LRA 2002). This did not happen at the time the covenants were entered into. Therefore, the new owner, as a purchaser for valuable consideration of House 2, takes free of the unprotected covenant (s29(1) LRA 2002).
The other answers are incorrect because the covenant is actually overall negative with a positive aspect (following Powell v Hemsley) and it does touch and concern the dominant land since restricting building on your neighbour’s land will protect the view from the dominant land thereby preserving its value, quality etc. It is incorrect to assert that the dominant and servient land are not sufficiently proximate since House 1 and House 2 are adjoining properties. There is also express wording here that shows that the original parties (the man and woman) did intend the burden of this covenant to run with House 2, so it is incorrect to state that the original parties did not intend the burden to run.
A retired lawyer purchases the registered freehold of two adjoining semi-detached townhouses. The lawyer renovates the townhouses including creating a shared underground garage for parking. This makes the properties more convenient as the nearest parking is on the next street.
The lawyer decides to live in the larger townhouse and sells the smaller townhouse to an accountant. The transfer deed contained a right for the owner of the smaller townhouse to park a car in the shared garage and the following covenant:
“to contribute 50% of the costs of maintaining the shared garage ”
After several years the accountant sells the smaller townhouse to a friend. The friend uses the shared garage but refuses to contribute to its maintenance costs.
Which of the following best describes whether the lawyer can enforce the covenant against the friend?
The covenant can be enforced against the friend because the burden of the covenant will pass under the rule in Tulk v Moxhay
The covenant can be enforced against the friend because the burden of the covenant will pass under the doctrine of mutual benefit and burden
The covenant cannot be enforced against the friend because the covenant is positive
The covenant cannot be enforced against the friend because there is no element of choice as to whether to take the mutual benefit
The covenant cannot be enforced against the friend because there is no clear link between the benefit and burden
The covenant can be enforced against the friend because the burden of the covenant will pass under the doctrine of mutual benefit and burden
Correct
This is correct. The covenant is likely to pass to the friend under the rule in Halsall v Brizell [1957] as there is a mutual burden (to contribute towards the maintenance costs) and benefit (use of the garage). As per Rhone v Stephens [1994], there is a correlation between the benefit and burden and the benefit and burden as conferred in the same transaction (Davies v Jones [2009]). There is a genuine choice whether to accept the benefit of the right to park (Thamesmead Town Ltd v Allotey (1998)) as the friend could park on the next street instead. This exception to the general rule that the burden will not pass at common law (Austerberry) can therefore be applied on the facts and used by the lawyer to enforce the covenant against the friend.
The rule in Tulk v Moxhay cannot be used to pass the burden of the covenant in equity as the covenant is positive.
A landowner is the registered freeholder of a large detached house. The landowner decides to split the house into two semi-detached houses and sells one to a buyer.
The buyer covenants with the landowner “to repaint the window frames every five years using only colours approved by the landowner.”
Which of the following options best describes what type of covenant this is?
The covenant is a mixed covenant. It cannot be split and is overall positive.
The covenant is outright positive.
The covenant is a mixed covenant which can be split into two free-standing covenants; the first positive, the second negative.
The covenant is outright negative.
The covenant is a mixed covenant. It cannot be split and is overall negative.
The covenant is a mixed covenant. It cannot be split and is overall positive.
Correct
This is correct. Applying the ‘hand-in-pocket’ test (Haywood v Brunswick Permanent Benefit Building Society [1881] 8 QBD 403), the obligation to paint the windows requires money and time to be spent. The part of the covenant requiring the buyer to ‘only use colours approved by the landowner’ is restrictive and therefore negative - this part of the covenant can be complied with by inaction. The negative element cannot, however, stand alone and therefore Powell v Hemsley [1909] 1 Ch. 680 applies and the covenant is seen as one obligation with a condition attached. The main obligation is positive and the covenant is therefore seen as an overall positive covenant.
A man and woman are adjoining land owners. 5 years ago, the man entered into a covenant with the woman not to keep any animals on his freehold land.
The women has granted a ten year legal lease of her land to a tenant. The man has now brought ten dogs onto his land, and their barking is keeping the tenant awake at night. The tenant wants to enforce the covenant against the man.
Which of the following options is the best advice to the tenant as to whether it can enforce the covenant against the man at common law?
The tenant will be able to enforce the covenant against the man because express assignment has occurred
The tenant will be able to enforce the covenant against the man providing the covenant is deemed to touch and concern the land
The tenant will not be able to enforce the covenant against the man as the burden of covenants cannot pass at common law
The tenant will not be able to enforce the covenant against the man as the tenant is not the freehold owner of the dominant land
The tenant will be able to enforce the covenant against the man because the burden will pass under the rule in Tulk v Moxhay
The tenant will be able to enforce the covenant against the man providing the covenant is deemed to touch and concern the land
Correct
This is the correct answer. Provided that the covenant is deemed to touch and concern the land, this will satisfy the rules for an implied passing of the benefit at common law under P&A Swift Investments v Combined English Stores.
The other conditions of P&A Swift will be satisfied because if there is no express wording showing an intention for the parties to pass the benefit to successors, s78 Law of Property Act 1925 will imply this intention. Further, both the covenantee and their successor will also hold legal estates in land, as the woman owned the freehold and the tenant has a legal lease. Smith & Snipes Hall Farm v River Douglas Catchment Board confirms that different estates are acceptable.
