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SQE 1 - FLK 2 > Land Law > Flashcards

Land Law Flashcards

1
Q

How does the right of survivorship operate for joint tenancies and tenancies in common?

A

Join tenancy = right of survivorship applies, meaning the co-owners’ will/intestacy rules will not apply

Tenancy in common = right of survivorship does not apply, meaning their share in land falls into their estate and passes under the terms of their will/intestacy rules

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2
Q

What is the test for determining how an equitable interest in land is held?

A
  1. Are the 4 unities present?
    a) Interest
    b) Title
    c) Time
    d) Possession
  2. Is there an express declaration?
  3. If not, are there words of severance which indicate that co-owners own distinct and separate shares
  4. Does equity presume a tenancy in common?
    a) Where co-owners buy partnership land
    b) Lend money on mortgage; and
    c) Make unequal contributions to purchase price
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3
Q

What are the 4 methods of severance of an equitable joint tenancy?

A
  1. Notice under s 36(1) LPA 1925
    - Must in (a) in writing (b) showing correct intention (immediate severance) (c) correctly served to all joint tenants
  2. Alienation
    - Joint tenant sells/gives/mortgages equitable interests to third party
    - Must be signed in writing
    - Bankruptcy results in involuntary alienation
  3. Mutual agreement/course of dealings
  4. Homicide
    - One co-owner kills another
    - Victim’s beneficial interest passes to their estate/intestacy rules
    - Murderer takes legal estate due to survivorship and it is held on trust for them
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4
Q

Under TLATA 1996, what happens if a dispute cannot be resolved and what factors will the court take into account?

A

s 14 TLATA 1996: an application can be made by the trustee/anyone who has an interest in property of trust to the court

s 15 TLATA 1996: must take into account (a) purpose of the trust (b) intention of settlor when creating trust (c) welfare of minor who occupies/may occupy the property (d) interests of any secured creditor of beneficiary

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5
Q

What is the effect of a sale by 2 or more co-owners?

A

Buyer pays purchase price to legal owners to get legal estate

Because they have bought from at least 2 trustees, purchaser overreaches any equitable interests
=> Buyer will take land free of equitable interests

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6
Q

How can a sale be made by a sole surviving owner?

A

Joint tenants: right of survivorship applies and sole legal and equitable owner can sell alone

Tenants in common: survivor holds land on trust for themselves/beneficiaries under will etc.; buyer will need to overreach by instisting survivor appoints a second trustee

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7
Q

What are the 4 essential characteristics of an easement?

A
  1. Must be a dominant and servient tenement
  2. Must ‘accommodate’ dominant tenement
  3. Dominant and servient tenement cannot be owned/occupied by the same person
  4. Right must be capable of forming the subject matter of a grant
    a) Right must not be expressed in language too wide and vague
    b) Right must not amount to possession
    c) Do the rights constitute mere recreation, possessing no quality of utility/benefit
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8
Q

How is an express grant/reservation of an easement shown?

A

Unregistered land = deed
Registered land = entries on register of title

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9
Q

When can an implied grant/reservation of an easement be made and what are the 4 methods?

A

Only be created on a sale of part

  1. Strict necessity
  2. Implied from common intention of B and S at time of sale
  3. Wheeldon v Burrows: common owner-occupier of both tenements and:
    a) Continuous
    b) Apparent
    c) Necessary for reasonable enjoyment
    d) In use at the date of the transfer
  4. s 62 LPA 1925: implies general words into a conveyance of land where:
    a) there is a conveyance of part
    b) dominant land must have enjoyed the benefit of right prior to conveyance
    c) diversity of occupation at the time of conveyance of part (not essential)
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10
Q

How can an easement arise by prescription? What are the three methods of prescription?

A

If the easement has been in continuous use for the requisite period of time without interruption or protest

  1. Common law: claim has to be based on the presumption that it existed since 1189
  2. Lost modern grant: presume there is a lost grant when it has been used for 20 years
  3. s 2 PA 1832: non-light easement will not be defeated if it has been used for 20 years; 40 years = absolute and indefeasible (20 years for right to light) unless dependant on express written consent
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11
Q

How can easements be enforced against third parties?

A

Unregistered:
- If the conveyance is by deed and contains a grant of an easement, it takes effect immediately - legal easement binds
- Equitable easements must be registered as a Class D(iii) land charge

Registered:
- Express easements binds successive owners IF registered as a registerable disposition
- Easement of servient land appears on charges register
- Easement of dominant land appears on property register
- All equitable easements must be in writing and protected as a notice on the charges register
- Implied easements bind as an overriding interest if in existence at time of sale

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12
Q

How can an easement be extinguished?

A
  • Expressly released by a deed
  • Own both the dominant and servient tenement, easement will automatically cease
  • Implied release where it has been abandoned (i.e: lack of use coupled with an act demonstrating intention to abandon)
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13
Q

How does the benefit of a freehold covenant run at common law?

A

Can pass to successors:

  1. By express assignment
  2. Automatically by annexation if:
    a) It touches and concerns the land
    b) Original covenantee had a legal estate in land
    c) Successor holds legal estate in benefitted land
    d) Original parties intend that the benefit of the covenant runs with the land
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14
Q

How does the burden of a freehold covenant run at common law?

A

Burden does not run

Exception: if covenant has mutual benefit and burden
- The burden must bear some ‘real relation’ to the right granted

Burden can also be imposed indirectly through a chain of indemnity

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15
Q

How does the benefit of a freehold covenant pass in equity?

A
  1. Touches and concerns the land
  2. Benefit passed to successor of covenantee either by express assignment or annexation
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16
Q

How does the burden of a freehold covenant pass in equity?

A

4 requirements:

  1. Covenant must be restrictive in nature
  2. Covenant must accommodate the benefitted tenement
    a) Covenantee had an estate in benefitted tenement when covenant was created and successor has an estate at the time of benefitted enforcement
    b) Covenant touches and concerns the land
    c) Benefitted and burdened tenements are sufficiently proximate
  3. Original parties intended the burden to pass
    - In absence of express working, s 79 LPA will imply parties’ intention
  4. Covenant must be registered in appropriate register
    - Registered = IARE
    - Unregistered = Class D(ii) land charge
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17
Q

What remedies are available to the original covenantee (benefit) for a breach of a freehold covenant?

A

Still have an interest:
1. Damages
2. Injunction
3. Order for specific performance

Don’t have an interest, only remedy available is damages

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18
Q

What remedies are available to a successor to the original covenantee (benefit) for breach of a restrictive freehold covenant?

A

Injunction
- Court can award damages in lieu of an injunction if an injunction would not be an appropriate remedy

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19
Q

Remedies for legal mortgage: when does debt action arise?

A

Legal date of redemption (first date mortgage can be repaid in full) must have passed

Cannot recover arrears for capital after 12 years since first payment and 6 years for interest

20
Q

Remedies for legal mortgage: when does the right to take possession arise and how is this done?

A

Can take possession as soon as mortgage is signed

  1. No lease: lenders can oust borrowers from property and take physical possession
  2. Lease: lenders take possession by directing tenants to pay rent to them
    - Can exercise peaceful re-entry without bringing court proceedings
21
Q

Remedies for legal mortgage: appointment of receiver

A

Receiver is someone who oversees the sale and prevents the lender being liable for a negligent sale

Arises: date of redemption

Exercisable either:
1. Borrowers failed to comply with notice of repayment within 3 months
2. Interest due is 2 months or more in arrears; or
3. Borrowers breached term under mortgage

Order receiver can apply income:
1. Outgoings on the property
2. Interest on any prior mortgage
3. Insurance premiums on the property and their own costs
4. Interest on current mortgage
5. Capital on current mortgage if directed to do so in writing by the mortgagee
6. The balance to the mortgagor

22
Q

Remedies for legal mortgage: power of sale

A

Implied into every mortgage deed and arises once the legal date of redemption has passed

Is exercisable under same conditions for appointment of receiver

Effect of sale: free from interests which mortgagee took priority over but subject to those that have priority

Order of distribution:
1. Repay costs of redeeming mortgage
2. Pay off mortgagee’s expenses of sale
3. Pay off mortgagee’s own mortgage
4. Pay balance to person entitled to mortgage property

23
Q

Remedies for legal mortgage: foreclosure

A

Arises when:
1. Legal date of redemption passes; or
2. Mortgagor has breached terms of mortgage

Lenders must first obtain an interim court order, fixing a date for borrowers to pay outstanding money
- Failure to do so means order of foreclosure is absolute

24
Q

What is the 2-part test in determining whether something is a fixture?

A
  1. Method and degree of annexation = must be some degree of physical annexation to the land
  2. Object and purpose of annexation = looks at reasoning for annexing the chattel
25
Q

What is necessary for an easement to be ‘legal’?

A

Duration of the easement must either be:
a) Unlimited/forever; or
b) For a fixed/certain duration

If the easement is for an uncertain period, it is not capable of being legal and will be recognised in equity if formalities are met

26
Q

When does a party have a statutory right to land?

A

s 30 FLA 1996

Non-legal owning spouse has right of occupation provided that:
1. Parties are legally married
2. The home is, has been or is intended to be the matrimonial home

27
Q

What is a licence?

A

Allows people to use the land in a certain way without them having a proprietary interest

Bare licence = licence granted for no consideration
Contractual licence = licence granted for consideration

28
Q

In what circumstances will the parol exception apply?

A

Lease is granted for a term under 3 years and:
a) Grants immediate possession
b) Granted at the best rent

29
Q

What are the requirements for a valid deed under s 1 LP(MP)A 1989

A
  1. Make it clear on the face of the document that it is intended to be a deed
  2. Be signed, witnessed and delivered
30
Q

What are the requirements under s 2 LP(MP)A 1989?

A

a) In writing
b) Incorporating all the terms which the parties have expressly agreed to in one document; and
c) Signed by both parties

31
Q

What are the essential characteristics of a lease?

A
  1. Certainty of duration: specified period of time, with a known start and end date
  2. Exclusive possession
32
Q

How can a leasehold covenant be enforced in an ‘old’ lease?

A

Old lease = lease granted prior to 1 January 1996

Privity of contract: L and T can enforce each other’s covenants
- T assigning the lease does not end PoC

Privity of estate

Liability of successors to original parties: covenant by original landlord that touches and concerns the land runs with the term granted by lease
- Test for touches and concerns the land:
1. Covenant must only benefit someone who owns/runs the land to the extent that, if the covenant were separated from the land it would be of no benefit
2. Covenant must affect the nature/quality/mode of use or value of the land
3. Must not be expressed to be personal
4. If covenant is to pay a sum of money, it will touch and concern the land if payment relates to something done on the land

33
Q

How can a leasehold covenant be enforced in a ‘new’ lease?

A

Liability of original parties to successors: on assignment, T is released from covenants, L continues to be liable

AGA: L imposes condition that T must guarantee performance of T’s covenants by assignee
- Can only do this for T’s immediate successor

34
Q

What remedies are available if a tenant breaches a covenant to pay rent?

A

Action for debt: L cannot bring claim after 6 years from date arrears becomes due
- If suing a former tenant, L must serve default notice within 6 months from when charge becomes due (s 17 LT(C)A 1995)

CRAR: only for commercial properties and recovers rent payable in advance or arrears
- Must be at least 7 days’ rent, which has become due and payable
- Must have 7 days’ notice of enforcement

Pursue guarantor and/or rent deposit
- Guarantor: sued in same way as a current tenant (old/new leases); must serve default notice on guarantor within 6 months of current tenant’s breach; applies to old and new leases
- Rent depsoits: L can require T to deposit a cash sum as security payment of rent and performance of T’s covenants; when T is in breach, L can withdraw money

35
Q

What remedies are available for breaches of leasehold covenants (other than failing to pay rent)?

A
  1. Damages: limited to:
    a) Fairly and reasonably considered to arise naturally
    b) Had been in the contemplation of both parties at the time the contract was made as a probable result of breach
  2. Injunction: relevant for restrictive covenant
  3. Taylor v Beal: if paid/carried out repairs, tenant may deduct costs from future payments of rent
    - Amount being recovered must be liquidated/a fixed sum
  4. Forfeiture: L has the right to forfeit where:
    a) There is a forfeiture clause in lease (L may re-enter property for breach of covenant by T)
    b) Lease is granted subject to the condition that L may forfeit because of such an event
    - Not lawful to forfeit lease of dwelling other than through court proceedings while T is lawfully residing
  5. Specific performance
    - Discretionary
    - Only available if damages are inadequate
36
Q

Under the Land Charges System, what classes are the following interests registered under in the unregistered system?
a) Estate contract
b) Restrictive covenant
c) Equitable easement
d) Statutory right for non-owning spouse

A

Estate contract = Class C(iv)
Restrictive covenant = Class D(ii)
Equitable easement = Class D(iii)
Statutory right for non-owning spouse = Class F

37
Q

What is the general rule and exception for the enforceability of equitable interests in the unregistered system?

A

Before 1926:
General rule = equitable interests are enforceable against anyone

Exception = not enforceable against an equity’s darling:
1) Bona fide
2) Buyer
3) Who through money or money’s worth
4) Is acquiring a legal freehold/leasehold estate
5) Without actual, constructive or imputed notice

After 1926: equitable interests need to be registered as a Land Charge to be protected

38
Q

Regarding equity’s darling, define actual, constructive and imputed notice

A

Actual = actual knowledge of facts

Constructive = reasonably discoverable by inspection of property and whether such inquiries ought to have been made

Imputed = purchaser has this notice if their solicitor/agent has actual/constructive notice of it

39
Q

When does a buyer have the opportunity to overreach and how can this be achieved?

A

Overreaching applies to an equitable interest under an express/implied trust

To overreach:
1. The buyer must be acquiring the legal estate in the property
2. Must pay the purchase money to all trustees (max 4)
3. There must be at least 2 trustees

40
Q

What information is found on the:
1. Property register
2. Proprietorship register
3. Charges register

A
  1. Reveals the legal estate which has been registered and contains details of any rights that benefit the land
  2. Reveals the name and addresses of the legal owners of the land and records any limitations on the registered proprietors’ ability to do freely with the land
  3. Records rights which burden the land
41
Q

What are registerable dispositions under LRA 2002 and how they can be binding?

A
  1. Legal mortgage
  2. Legal easement expressly created by deed
  3. Legal lease for over 7 years

Only becomes legal and binds the buyer if registered at Land Registry by date of registration of the buyer

42
Q

Give examples of IAREs and how they can be binding

A
  1. Burden of restrictive covenant
  2. Estate contract
  3. Right under FLA 1996

Needs registering as a notice at Land Registry by date of registration of buyer

43
Q

How can interests of beneficiaries under trusts of land be protected?

A

Can be recorded as a restriction at the Land Registry by date of registration of buyer, which will alter the buyer to the need to overreach

Whether or not a notice is recorded, the interest may need overreaching (overriding interest)

44
Q

What are the 3 main overriding interests?

A
  1. Legal leases granted for a term not exceeding 7 years
  2. Interest belonging to a person in actual occupation of the land
    - Interest has to be proprietary
    - Right to occupy under a licence is not overriding but a right under an equitable lease is
    - Actual occupation must be at time of transfer deed being executed (s 30 FLA right is incapable of being an overriding interest)
  3. Legal easements NOT expressly created by deed (implied or prescription)
    - Easement will bind if, since 13 October 2006:
    a) Purchaser actually knew of the easement before the purchase
    b) Easement would have been obvious on a reasonably careful inspection of land; or
    c) Easement had been used by person entitled to it in the year preceding the disposition of land
45
Q

What does s 141 and s 142 LPA 1925 stipulate?

A

s 141: successor landlord has the benefit of the covenant if it touches and concerns the land

s 142: successor landlord has the burden of the covenant if it touches and concerns the land

46
Q

One option for the benefit of a freehold covenant to pass in equity is annexation. How can annexation be achieved?

A

Benefit of the covenant is tied to the land at the time the covenant is made

  1. Express = clear language stating that the benefit is annexed to the land and not to persons
    - eg: ‘each and every part’
  2. Implied = can be implied where annexation was obviously intended and it would be an injustice to ignore such an intention
    - Quite rare
  3. Statutory = s 78 can automatically annex the benefit of the covenant if:
    a) The covenant was created after the implementation of the LPA; and
    b) Covenant touches and concerns the land

SQE 1 - FLK 2 (7 decks)

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