Land Law Flashcards

Question

How to create an easement

Answer 1

- Can be legal if for fixed period or forever - Comply with deed requirments - Can have equitable easement if in writing, signed by all parties, all relevant terms in 1 doc, clean hands

Answer 2

- Generally only if they are analogous to OG easements, such as right to erect a satllite fish is analougous to erecting a sign. 4 essential characteristics must be in place to be a new easement - *Re Ellenborough Park* test: 1. Must be dominant and servient tenement (profits can be 'created in gross' with only a servient tenement. Easements NEED dominant as well) 2. Easement must serve the dominant tenement (must be connected with normal enjoyment of dominant land e.g land in Northumberland cannot accomodate land in Kent. But need not be joined! Can be seperated by another parcel of land. Need to be **sufficiently close**. Right must benefit land as well as owner: (a) Does the right improve the marketability of the land; and/or (b) Would a future owner see it as a benefit?) Examples: - right to use garden benefitted land and was easement - right to put pleasure boats on a canal was not - just a business venture and no connecting to ordinary enjoyment of land - pub sign place on grounds of property and gave directions to pub on dominant land - found to be easement as connected to manner in which land was being used, helped public find pub and supported business. 3. Must not both be owned and occupied by the same person - principle of diversity is satisfied with landlord and tenant - **quasi-easements**. Converted to full easement on sale of part of the land. 4. Easement must be capable of forming the subject matter of the grant of the deed i.e must be capable of precise definiton. There must be a capable grantor. This means the person who grants the right must have the power to do so. There must also be a capable grantee. For example, it would not be possible to grant rights to the inhabitants of the village, since they are a vague and fluctuating body. Four main points for capable of forming subject matter of the grant: (a) Capable of exact definiton (general flow of air to timber drying shed) is too vague. No right of light generally - **only through a defined aperture**. Cannot be a right to a view (law does not give an action for such thing of delight). Sometimes can be for delight like a park in the Ellen case. Supreme Court case - The court emphasised that the easement must have all the essential characteristics set out in Re Ellenborough Park. As the use of the dominant land was itself recreational, being a timeshare property, the condition that the easement must accommodate the dominant tenement was satisfied. (b) No expenditure by servient owner. E.g right of way, owner of dominant can carry out works but servient does not have to. It is not a positive cov after all!! **exception**: easement of fencing in Crow v Wood: right to require the owner of adjoining land to keep the boundary fence in repair. The principal appears to be limited to a rural setting where it is of great importance to maintain stock proof fences. **Limited to rural area where cows could get out!** (c) Not so extensive as to amount too joint possession - look at amout of time taken and amount of space. *Grisby case,* claimed right to store stuff in neighbours cellar,but it was a small space and extensive usage. Defendant filled the cellar so now the owner couldn't use i! Question of fact and dgree - does it deprive owner of whole beenfit? Is there a limit on amount and time? More likely to be an easement. Easement of parking - no if leaves owner without use of parking! **No reasonable use of the land left?** (d) Law cautious about new negative easements - positive easement is benefit of easement performing some activity like right of way, of drainage or erect sign. Negative is prevents servient owner from doing something. Only recognise following in law: 1. Right of light 2. Right of air 3. Right of support NOT TV RECEPTION! Cautious as may stop owner enjoying use of their land. Right of light - Once a right to light has been established, it must then be proved that the right has been infringed. It must be demonstrated that the amount of light remaining has been reduced to a level below that which ‘is required for the ordinary purposes of inhabitancy or business of the tenement according to the **ordinary notions of mankind**’. I.e use of light dropped below use enoguh for ordinary notions of mankind. Depends on nature of property.

Answer 3

1. Express grant/reservation (executes deed for grant, reserve is where seller retains rights over land they are selling) 2. Implied by necessity 3. Implied by common intention 4. Wheeldon v Burrows 5. s62 LPA 25 6. Prescription

Answer 4

- Applies to grants and reservations - Land locked - not enough for other way to be inconvenient - EXTREMELY limited - Union Lighterage v London Graving Dock Company [1902]: *In my opinion, an easement of necessity means an easement without which the property retained cannot be used at all, and not merely necessary to the reasonable enjoyment of the property.* - can only be used for purposes for which dominant land was being used at time necessity arose NO MEANS OF ACCESS ELSEWHERE

Answer 5

- Grants & reservations - Land conveyed by reasons known to granter, easement over any element essential for purpose to be carried out is implied - *Wong v Beaumont*: The lease required the let property to be used as a restaurant and included an obligation on the tenant that no noxious smells would be emitted by the restaurant. The only way to comply with this obligation was to build a ventilation duct through the remaining part of the building owned by Beaumont Property Trust. An easement was implied as the ventilation shaft was needed to ensure that the obligation in the lease could be complied with. What to look for in a set of facts: A **common purpose known to the parties**. The right claimed is needed in order for the common purpose to be fulfilled.

Answer 6

ONLY GRANTS - no application to profits. Pro buyer! Converting quasi-easements to easements: 1. Quasi easement in existence prior to sale 2. Right used must be **continuous and apparent** - think can see the mark of the path, drains etc 3. Right must be **necessary for the reasonable enjoyment of time** - not as stringent as necessity, can be an alernative path but needs to be better and not equally as convinient. I.e if other path but it is dangerous so alternative needed for reasonable enjoyment. 4. Be **IN USE AT TIME OF SALE** THis only has the effect of THE SELLER GRANTING RIGHTS TO THE BUYER! The seller cannot reserve rights as they have the power. CONTRACT IN EQUITY WILL SUFFICE!

Answer 7

- parolThe section operates to pass automatically to a buyer all existing rights, without the necessity of formal words in the conveyance. Case law extends to scope. **Uplifting of license at the time of a lease renewal into an easment**. Case: *Wright v Macadam 1949:*: Mr MacAdam (‘M’) let a flat to Mrs Wright (‘W’) for one week. She continued in occupation and subsequently M gave her permission to store her coal in his coal shed. M then granted a new tenancy to W. No reference was made to the coal shed. M then demanded W should pay a weekly amount for the use of the coal shed. W refused. The court found that when the lease was renewed, there was implied into the renewed lease an easement to store coal in the coal shed. All that was required was the existence of the right at the time the lease was renewed; s 62 automatically implied an easement of storage. The effect was to convert or uplift the permission/licence given by M into a full legal easement. The conditions of s62 are: 1. Need a conveyance - written document. Creating or transferring legal estate. Can be a mortgage or lease (inc a short written lease NOT in a deed - parol) **DOES NOT INCLUDE A CONTRACT FOR SALE**. 2. Diversity of occupation on two parts of land - no need for the right to be **continuous and apparent**. This condition is not needed if: (A) Easement of light being converted; or (B) Where the rights are continuous and apparent e.g track. 3. Existing priv at date of conveyance. Not future right. 4. Must be capable of being easement orporift - consider the Ellen conditions above (4). s62 will not cure a defective easement. s62 applies to **profits**.

Answer 8

3 types: 1. Common law 2. Doctrine of lost modern grant 3. Prescription Act. Whichever method is relied on it will be necessary to show that the right has been exercised by or on behalf of a fee simple (freehold) owner against a fee simple (freehold) owner: 1. continuously; and (The user can be by a number of freehold owners in succession and may be **intermittent** in nature. In Diment v N H Foot [1974] 2 AER 785 use for six to ten occasions over a 35-year period qualified as continuous use) 2. as of right (without force [including removal of obstructions or ignoring owners protests], secrecy [not be hidden - reasonable person. only done at night?] or permission [any payment indicates permission.toleration does not ocunt.]). **PRESCRIPTIONONLY RELATES TO FREEHOLDERS AND NOT LEASES!!!!!!!!!!!**

Answer 9

The grant of an easement is presumed if it has been **enjoyed continuously as of right since time immemorial, since 1189**. It is presumed that a user for 20 years or more is proof of use since 1189 but this presumption **can be rebutted** by showing that at some time since 1189: * the right was not exercised * the right could not have been exercised * the dominant and servient tenement were **vested in the same owner** (unity of seisin). The presumption is, therefore, fairly simple to rebut ## Footnote show: right not exercised, right could not have been exercised, land were vested in same owner at some point since 1189

Answer 10

**Prescription of modern lost grant.** The grant of an easement is presumed if it has been enjoyed continuously as of right for 20 years or more on the basis that there is a presumption that there was a grant of the right since 1189 (**time immemorial)** but that the grant has been lost. LAST RESORT. i.e where: 1. The dominent and servient tenements in common ownership since 1189; or 2. There is a gap exceeding 1 year. **Prescription under Prescription ACt 1832** If the dominant owner can show user as of right for **20 years (30 years for profits)** then they will obtain a prescriptive easement even though the user clearly commenced sometime after 1189 (s 2 Prescription Act 1832). Must prove uninterrupted enjoyment - no breaks exceeding **1 year.** Count back 20 years from the date of the action. Right cannot be exercised with *force, secrecy or permission.*

Answer 11

* Covenant is a promise to do or not do something (difference depends on positive or negative covenant) * Usually in order to enhance the value or amenity of the land retained by the seller * Covenants can’t be legal (not in s1(2) of LPA 1925) * Equitable by interest - must be signed and in writing (s53(1) LPA 1925) * Can create covenant by contract but usually. Deed as tend to be created when part of land is sold (and usually included on the transfer) * Positive covenant = have to actively do something * Negative/restrictive = stops you doing something * Positive or negative depending on substance of clauses and NOT the wording

Answer 12

* Rules of assignment mean only the benefit of a contract can be assigned and not an obligation, therefore, obligations of a coventor cannot be passed at **common law** down to a successor in title i.e legally a covenant can't be passed in law. Makes sense as covenants cannot be legal. Doesn't matter if restrictive or positive. * However burden of restrictive cov can run in equity but a positive cov cannot Tulk v Moxhay, burden of restrictive covenants can be passed in equity 1. only negative covs 2. The covenant, when made, must have been made for the purpose of benefitting dominany land. In the London City Council case, all the land was sold off and none retained when cov was made. Without any dominant land the covenant couldn't run with the land (be careful as often covs are created when land is sold so the dominant land must be retained. Think of case where counsel sold land subject to a cov not to build, cannot enforce against successor as did not retain dominant land) 3. Must **TOUCH AND CONCERN** the dominent land. **TEST** (P & A Swift): (a) Not beneficial to owner when the dominant land is sold (b) it must effect the value, nature or quality of the dominant land (c) must not be personal and given to one specific person Consider distance - Kelly v Barnett - 5 miles too much. On same street was fine. 4. Cov must have been made with the INTENTION to BURDEN the servient land: (A) - EXPRESS INTENTION - in document; (B) IMPLIED - s79 LPA, implied unless contrary intetion is expressed, to bind successors 5. Servient owner must have had notice to be bound!!! (Depends if reg or unreg - if reg then in charges register, if unreg then Land Charge D(ii).

Answer 13

1. Create a lease Positive and negative covenants are binding in equity on successfor in title to a tenant. 2. Indemnity covenant - chain of indemnity - only good as weakest link - sue previous person in chain 3. Halsall v Brizell (mutual benefit and burden): * Doctrine says if a person wants to sue a service/facility that benefits heir land they must comply with obligations * Example - if want to use a facility you may have to contribute to upkeep * 2 pre-conditions to this from Thamesmead Town Ltd v Allotey 2000: 1. The burden must be **linked to the benefit**; 2. The covenator’s successors in title must have the **option to opt** out or accept the enefit and related burden. * This isn’t a direct method of enforcement but allows the covenantee to stop allowing the been until burden has been fulfilled.

Answer 14

There are two rules with the benefits of covenants running with the land: 1. Annexation 2. Assignment. **Annexation** * Original covenantee can enforce covenant through contract * If the benefitting lanf is sold, the covenantee’s successor in title can enforce the covenant in common law if the following are complied with: 1. Covenant must touch and concern the land (PA & Swift test set out above); 2. Must be an intention the benefit should run with the estate owned by the covenantee (express or implied by s78 LPA 25) 3. The original covenantee must have a legal estate in the benefited land and no benefit can pass if the covenantee has only and equitable interest in the benefited land; 4. Buyer of benefited land must take legal title of benefited land - need not be same interest i.e can be legal lease if covenantee is freeholder. **Assignment** Can also pass the benefit through express assignment rather than annexation. Must happen at **the same time as the transfer of land**. Conditions: (a) In writing (b) Signed by the assignor of the covenant (c) Written notice of the assignment must be sent to the covenantor (Notice of assignment - think what I used to do for Sophie) But remember this is just the benefit at common law - consider equity too.

Answer 15

**Annexation** If the benefit is annexed to the land then it is there forever for any successor in title to enjoy. There are 3 rules: 1. Express annexation 2. Implied Annexaion - not relevant now we have statutory 3. Statutory (a) Express If the transfer expressly annexes the benefit to the land then it will run forver. There are a couple of points to note: * The benefit must be expressly for the land and not the owner, otherwise it will not be expressly annexed to the land * As such it is important the dominant land is identified * Should include the words "each and every part" in case there is ever a sale of part. May not be needed any more but do it to be safe. * Not enough for the cov to bemade for the benefit of the dominant land, it need to be expressed! *For the benefit and protection of 12 Trent View Gardens and each and every part thereof the Buyer and his successors in title covenants with the Seller and her successors in title to use the Property only as a private dwelling house* **Statutory** s78 (implies the that the benefit of a FREEHOLD cov has been annexed to each and every part of the land), but following conditions need to be met: * Cov must touch and concern the land - use Swift test i.e be for benefit/use of land, not helpful for owner once dominant land has been sold, not be personal i.e not just for owner's use and actually benefits the land. * Cov must have been created AFTER 1925 This stat implication may be useful say where there is no express annexation at all, or, there is but the express annexation is state for the benefit of the buyer / seller rather than the property. **Assignment** Can also pass the benefit through express assignment rather than annexation. Must happen at **the same time as the transfer of land**. Conditions: (a) In writing (b) Signed by the assignor of the covenant (c) Written notice of the assignment must be sent to the covenantor (Notice of assignment - think what I used to do for Sophie)

Answer 16

In order to enforce a covenant, the burden and benefit need to pass in the same way i.e either under common law or equity. Whilst the benefit of a restrictive covenant can pass in common law, the burden cannot due to the rules of assignment. However, under *Tulk v Moxhay* the burden can pass in equity if: 1. Cov is negative 2. Touches and concerns the land (PA Swift test - also think of distance) 3. When cov was made it was made to benefit the dominant land retained; and 4. Intention for the covenant to burden the servient land - s79 LPA has implied intention to burden successors in title unless evidence to the contrary. *Also note that the servient tenement will need notice to be bound*. If the above is met, when the original covenantor sells the land the buyer will be burdened. In addition, when the original covenantee sells the dominant land its successfor in title will need to show it has the benefit in equity - this is done through: 1. Express annexation (think express words, identifiable land, not expressed for benefit of owner); 2. Statutory (may step in but needs to touch and concern the land, and the cov must have been created AFTER 1925); or 3. Express assignment. **Positive covs cannot be passed in equity or common law. But original covenator remains liable - privity of contract.** - if the covenantee sells the land, the successor in title can sue the original covenantor if they can show that the benefit of the covenant passed in *common law* i.e 1. Touches and concerns the land (PA Swift) 2. Intend to benefit successor in title - intention implied under s78 LPA 3. OG covenantee owned legal estate 4. Buyer has a legal estate even if a tenant. Or express assignment. OG covenantor can sue next one in line in indemnity chain.

Answer 17

Pos: - Usually damages, must show suffered a loss so once sell land then can't claim - Doesn't run with land so sue OG covenator if you are successor in title, but must show the benefit runs at common law - Damages can cannot for future loss - Specific performance may be availible for breaches by OG cov but not successor in title. If OG cov does not own servient land and has no control can pay but not perform obligation! Restrictive: - Restrictive covs - if OG covenantor and covenatee then can sue in contract, damages etc - However, if successor in title then only runs iN EQUITY. This means equitable remedies. Principle equitable remedy for restrictive cov is an **injunction** - Injunction can be for anticipated breach - Discretion for Court !! Not as a right - Can be decide to award damages instead if (TEST): (a) Injury to c's rights are small (b) can be estimated in money (c) damages would be adequate; and (d) it would be oppressive to D to award injunction. - If C has acted inequitably or delayed action won't be awarded injunction (those who come to equity must come with clean hands) - Person with benefit of cov can sue the original covenantee but **only for damages**

Answer 18

1. Express release (must be deed, usually for payment - can be restrictive or positive) 2. Common ownership (if both people own dom and serv land - **unity of seisin** - cov extinguished - restrictive or pos 3. Section 84 LPA 1925 - can apply to the *Lands Chamber of the Upper Tribunal* under s82 to modify or discharge the restrictive cov in whole or part. On the applicat to demonstarte one of the grounds: (a) The covenant is obselete; OR (aa) The cov impedes reasonable use of the land and either: (i) Has no practical benefit, value or use to dominant land; OR (iii) Not in the public interest; and In either event, money would be adequate compensation. (b) Those entitled have either expressly or impliedly agreed to the discharge; O (c) The discharge will not injur those entitled to the benefit. If you are not sure who teh dominiant owner is, a prelim app can be made to the Court under **s84(2)** for the Court to confirm who it is. 4. Restrictive cov insurance - good if very old cov - one off premium.

Answer 19

**Legal estate** - If freehold or leasehold then deed, compyl with deed provs - If fail to then may have an equitable mortgage under *Walsh v Londsale* **Euitable interest** - Can have mortgage over equitable interest - In writing & signed - E.g co-owener of land creates and equitable mortgage over their equitable interest in their land

Answer 20

1. possession 2. power of sale (brings mortgage to end) 3. debt action 4. LPA receiver 5. Foreclosure (brings mortgage to end) 3. Debt action 4. Appoint an LPA receiver 5. Foreclosure (brings mortgage to an end)

Answer 21

1. Possession - Entitled to take possession 'before ink dry on mortgage' - ie need not have a default - Lender can: (a) Take physical possession of the property i.e ousting. Can be doen without Court order as long as 'cannot use or threaten violence' contravenes **s6 Criminal law act**. Most likely if prop empty. If can't do soem withotu contravenign s6 then Court order (b) Directing tenant pay rent directly to lender. - usually used in conjunction with power of sale or Possession proceedings: - residential prop follow pre-action protocol and try resolve - PAP weighted in favour of D staying in prop and making payments Under **s36 Administration of Justice Act** D can ask the Court to use its discretion to: (1) adjourn the proceedings or (2) If making an order for possession, postpone the date of possession or suspend. s36 applies when: (1) lender started proceedings (2) property includes a dwelling house (3) D is likely to, **in a reasonable time**, pay arrears. **reasonable time ** = remainder of mortgage term according to case law. Court will need a detailed financial plan to show D can pay in a reasonable time if its going to use its discretion. Whilst lender can use self-help remedy of possession without force or violence, if people live in house probably can't so will need to apply to the Court. Can't use s36 if lender uses self-help. **Strict duty to account** - if there is any income on the property the lender can use that to offerset arrears - However, lenders will have a STRICT DUTY TO: (a) account for sums above what is owed (b) the property must be managed with **due diligence** if it is not the lender must account for the money that should have been made if it was being managed with due diligence. It can be quite onerous so often lenders prefer to just get an LPA receiver

Answer 22

1. Power of sale - Must have first taken possession - Brings mortgage to end!!!! - TEST: (a) Power of sale must exist - Can be express in mortgage - Or **s101 LPA** implies the power of sale into all **legal mortgages by deed** (b) Power of sale must have arisen - Redemption date must have passed - will be in mortgage but usually 1 month; OR - Instalment of mortgage money has become due under instalment mortgage (these are the normal ones) (c) Power of sale must be exerciseable - This is usually set out in the mortgage deed, OR can rely on s103 LOA: (i) Lender written notice to borrower to say repayment of loan due AND have not paid in **3 months after notice**; (ii) **2 months** of interest outstanding; or (iii) borrower has breached another term of the mortgage. E.g not keep in good repair Lender can choose how to sell property, being privately or at auction. Owes following duties to borrower in equity: (a) **Act in good faith** and to cheat borrower (i.e sell quickly for knock down in price); and (b) Take **reasonable care** to get market value for house. Need not delay to make profit - as long as exposed to property to the market fairly will have discharged duty. If don't take reasonable steps to obtain market value, then lender has to account to borrower for the surplus due to the breach of duty. **Equity of redemption** - borrow entitled to any money left over after debt mayment taken out of house. Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] (when is a lender not exercising duty to obtain true market value); - Freeold owner of vacant site had planning permission for houses and flats - when advertising lender only said houses planning permission prejudicial to sell as flats have more profit) - did not exercise duty to take reasonable steps to get market value - Had to account If lender sells property, the buyer will: 1. take it free from interests or estates which lender took priority over; BUT 2. not free from interests or estate that took priority over the lender. Order of proceeds of sale - lender is a trustee and must pay (s105 LPA): 1. Any mortgages with priority over the lender 2. Lender's legal fees 3. Lender's mortgage 4. Surplus yo persons entitled to equity of redemption

Answer 23

- repayment cov - legal date of redemption must have passed - limitation period is 6 years for interest but **12 years** for capital (think - deed) - If lender exercised power of sale, and not enough to pay debt, can recover shortfall from borrower as debt

Answer 24

- Only if the property is mkaing money from something like rent - Arises in same was as power of sale: 1. Power exists 2. Power has arisen 3. Power is exerciseable - Receiver must be appointed in **writing ** and it is up to the lender who they choose. s109(8) LPA - the receiver has the right t demand and receive income from the property but it must be used as per set out at s109(8); - outgoings on the property - interest on prior mortgages - insurance premiums, repair costs, receiver's fees - interest on current mortgage - capital on current mortgage - remainder to the borrower - LPA doesn't give the receiver a right to sell but it is likely to mortgage will extend them As the LPA receiver as an agent of the lender, the borrower does not have recourse against lender for the receiver's actions - much less onerous than the strict duty if lender uses possession Duties of the reciver to (a) borrower (b) anyone else with an interest in equity **of redemption** and (c) lender: 1. Personal interests will not conflict (i.e they won't buy flat or anything) 2. Will act with **good faith** 3. Will act with **reasonable competence** 4. If selling will act take reasonable steps to get market value They may take steps to increase the market value but are not obliged! If the receiver is conflicted in who to give duties to then the duty to the lender wins

Answer 25

This is availible by applying to the **high court** after the **date for redemption has passed**. Process is 2 stages: 1. **Foreclosure Nesi** - prepare accounts of what is owed followed by a period in which to pay *usually 6 months*! 2. **Foreclosure Absolute** - property vested in lender and equity of redemption extinguished. If foreclose do not have to pay equity of redemption and can keeo profit. Likewise, if in negative equity borrower need not account for it (wouldn't use this option if NE!). **Borrower can do following to protect itself**: 1. Court has a discretion to reopn foreclosure proceedings even after forseclosure absolute (but it is for exceptional circumstances) 2. If the property is a **dwelling house** the borrower can apply to the Court under the** s36 Administration of Justice Act ** to adjourn the proceedings 3. Apply to the Court for a **judicial sale under s91(2) of LPA**. This preserves the equity of redemption in the borrowers favour. Anyone with interest in equity of R can apply - including another mortgage lender.

Answer 26

1. parol leases (3 years and under): (a) If no fine/premium (b) market rent (c) take effect in possession (tenant must have **imediate right to possession** then needs no formalities 2. leases of 3 years - need deed complying with s1LMPA (clear on face deed, signed and witnessed, delivered)

Answer 27

1. when there is a contract to **create or transfer** a legal estate: - if conditions of walsh v londsdale (contract all terms 1 doc, signed by all, clean hands / specific) then equitable lease if granting new lease - Called an estate contract if transferring lease - If breached term of contract equity won't step in as not clean hands 2. when there is an attempt to create a deed but failed. - as above, if satsified conds of walsh v londsale

Answer 28

To be a lease you need: 1. A duration that is permitted for a leasehold - must be specific start and end date (ie NOT length of the war -case) or periodic. try to make a lease for life? It will make **lease of 90 years ending on death **. Can have a break clause though! 2. Exclusive possession (need not be in actual occupation). Statement saying 'no exclusive possession not enough! 3. The correct formalities (see above - deed but equity may step in) If have all above, will be a lease even if the document is called a license. If ONE is missing then its a license.

Answer 29

* If the landlord has keys this does not stop the tenant having exclusive possession * However, if the tenant does not have general control this will - even if the document is called a lease! Look at contents not form of document * Things stopping control: - no right to have friends over - can change room on notice - required to share accomodatiom - Employee can enter at any time * These conditions on occupant would amount to a license

Answer 30

- occupany for work e,g cleaner is license ends when employment ends - flat share - different dates of enering, differeny rents etc not exclusive poss and licsense - flat share - if different agreements should be read as whole (identical, signed on same day) then intention is for ex poss. Lease. If provision saying owner or his agents share occupation, if this didn't happen then sham! Look at intentions of parties - Rent not neccessary but helps to show intention

Answer 31

In the absence of an express obligation, certain covenants will be implied on the part of the landlord to include: 1. quiet enjoyment *Tenant's lawful possession will not be substantially interferred with by acts of landlord* Protection from Eviction Act (PEA) 1977 which prevents a landlord from unlawfully depriving the tenant of their occupation. Any acts likely to interfere with the residential tenant’s peace or comfort that are done with the intention of causing them to give up occupation are an offence under the PEA 1977 2. obligations in respect of fitness of the property If a dwelling house (not commerical) s 11 LTA **1985** implies; 1. Keep in repair the structure of the exterior dwelling house; 2. Keep in repair and proper working order installations of water, electricity and gas and sanitation; 3. Keep in repair and proper working order the installations for water heating and space heating. To be in breach, landlord needs to be notified of disrepair. This differs to commerical as commercial leases tend to be full repair and insure leases

Answer 32

1. Assignment 2. Subletting 3. Mortgage/charge 4. Parting with possession/occupation (a) The open contract position – if the lease does not contain a covenant against alienation the tenant has complete freedom to deal with the lease as they wish. (b) Absolute prohibition – there is a covenant by the tenant not to deal with the lease. This could relate to assignment or any other form of alienation. (c) Qualified covenant – the covenant by the tenant is not to assign (or otherwise deal with) the lease without the landlord’s consent. (d) Fully qualified covenant – the tenant covenants not to assign (or otherwise deal with) the lease without the landlord’s consent – such consent, not to be unreasonably withheld.

Answer 33

Section 19 of the Landlord and Tenant Act (LTA) 1927 translates any qualified covenant (against **assignment, underletting, charging or parting with possession**) into a fully qualified covenant so that the landlord cannot unreasonably withhold consent. This does not alter an absolute prohibition. Rules are a bit different with commercial (i.e can't have preagreed conditions which aren/t usbject to reasonableness test 1A LTA) where there is a qualified covenant on assignment, underletting, charging or parting with possesion (whether the proviso that consent is not to be unreasonably withheld is express or implied by statute) where tenant has made a **written application** for consent the LL must within a **reasonable time**: (a) Give consent (except where it is reasonable not to) (b) Serve notice specifying decision and in addition: (i) If consent given but subject to conditions, give conditions (ii) If consent witheld then explain why Cannot unreasonably delay giving written consent!! Relates to **old and new leases.**

Answer 34

Old leases granted pre 1 Jan 1996. **Liability of OG tenant** * priviity of contract with OG landlord and tenant * In lease, may covenant on behalf of themselves and successors but if not its implied by s79 LTA 1927: * If the OG tenant assigns the lease, the OG tenant remains liable for the burden of the covenants in the lease but loses the benefit of the covenants in the lease * OG tenants liability last the duration of the lease regardless of assignment! **Liability of assignee** * When OG tenant assigns to an assignee, there is **privity of estate** between assignee and landlord. Exists between a current landlord and current tenant. * Privty of estate, assignee is entitled to following **SPENCER's CASE**: (a) entitled to exclusive possession (b) liable to pay rent (c) is the party who the lease is vested in * The assignee through privty of estate is liable for all breaches of **REAL** covenants being it positive of restrictive. These are covenants that **touch and concern land**. test is from *PA Swift*: 1. It must not benefit the dominant owner when they no longer own the land 2. It must effect the benefit, value or usefulness of the dominant land; and 3. it must not be expressed to be personal (consider distance). Examples of real covenants include covenants: * to pay rent, rates or taxes; * to repair; * relating to the use of the property. * A purely personal obligation would not be a real covenant. For example, a promise by T1 to give the landlord a single red rose on the first day of each month. * Assignee only liable for the extent the lease is vested in them (unlike the original tenant) by the landlord usually wants a direct covenant to say they will be liable for the duration of the lease. Creates **privity of contract**

Answer 35

1. Common law - *Moule v Garret* can bring a claim against the tenant that comitted the breach for the sum paid out 2. Indemnity covenant - there will usually be an express indemnity covenant in the deed of assignment to *observe and perform the tenant's covenants and make good any damage caused by a future breach* 3. Implied covenant - if there is not express cov in the deed of assignment, one is implied to *observe and perform the tenant's covenants and make good any damage caused by a future breach*. (**ONLY OLD LEASES!!!!)** For unreg land, the above is implied by **s77 LPA 1925** and for reg land its implied by **Sch 12 para 20 Land Registration Act 2002**. As a side note, when assigning a lease often the obligation to observe and perform any repair covenants will be contracted out in the estate contract, as this interferes with caveat empetor.

Answer 36

On a sale of the reversion, the benefits and burdens of the landlord’s covenants which **touch and concern the land** (*PA Swift)* are transmitted to the new landlord – ss 141 and 142 LPA 1925 respectively. This enables the new landlord to pursue either the original tenant (via privity of contract) or the current tenant (via privity of estate). The new landlord only has the benefit and burden of the covenants whilst the reversion is vested in them

Answer 37

New lease (granted after 1 Jan 1996): - Assignee liable for all breaches of covenants whilst lease vested in them (not just ones that touch and concern the land) - **unless expressed to be personal** - think of the red rose on first of the month example. - An assignee takes the burden of the tenant covenants and acquires the benefit of the landlord covenants. - Assignee auto released from liabiltity upon assignment (LAndlord and Tenant Act (Covenants) 1995 - Direct cov can only be for when actually a tenant. No more privity of contract - Statute allows landlord to require Assignor to enter AGA - Tenant only bound whilst lease vested in them

Answer 38

Do the landlord get released from burden and benefit (like with old leases) upon selling reversion? Not necessarily: Benefit: - Upon a sale of the reversion, the new landlord takes the burden of the landlord covenants and acquires the benefit of the tenant covenants, provided that the covenants were not expressed to be personal – s 3 LT(C)A 1995 (unlike old leases where only take benefit of leases which touch & concern land). - The covenants do not need to touch and concern the land. Only those covenants expressed to be personal do not pass to the new landlord. Burden: **Statutory way to be released:**Landlord only release from liability if follows criteria in ss 6 and 8 LT(C)A 1995: 1. Write to tenant and give notice of impending assignment; 2. Request release from liability of landlord covs; 3. Tenant must CONSENT; OR 4. Released if no response in **4 weeks from notice of assignment**. Can apply to Court if refuse, **Contractually**: landlord can limit their liability by stating in the lease that their liability ends once they have disposed of the reversion (*Avonridge Property v Mashru)* **AGA** * The landlord may be able to improve their position by asking the outgoing tenant to enter into an Authorised Guarantee Agreement – s 16 LT(C)A 1995. * Primary obligation, need take no action against assignee * Only guarantee immediate assignee * Only 1 former tenant can be liable at any time * The landlord can, however, require the former tenant to enter a new lease if the assignee is declared bankrupt and the lease is disclaimed by the trustee in bankruptcy. A former tenant who suffers loss due to liability under an AGA as a consequence of the default of the assignee may: * recover from the assignee on the basis of the principle in Moule v Garrett (see 6.6.1(d)); or * more commonly, on the basis of an express indemnity given by the immediate assignee **Indemnity not implied into assignment of new leases as often have an AGA**

Answer 39

A landlord can only seek an AGA where: * the lease contains a covenant against alienation without the landlord’s consent (ie the tenant cannot sell the lease without first asking the landlord’s permission); and * it is either **reasonable to do s**o or, in the case of a commercial lease, it is a **condition **of the landlord giving its consent (under s 19(1A) LTA 1927). (See 6.5.4.)

Answer 40

Sections 17, 18 and 19 apply to both old and new leases. The aim of this retrospective effect is to improve the position of a former tenant who remains liable either due to: * privity of contract in an old lease; or * the terms of an AGA if a new lease **s 17 of the Landlord and Tenant ACt 1995:** 1. Service a default notice on old tenant or guarantor if landlord intents to cover a 'fixed cahrge' e.g rent, service charge or other liquidated sum 2. Must serve notice within 6months of the breach. If monthly rent and missed last 7 payments but sent no notic,e send it now but only be able to cover 6. Just notifying of claim 3. For old leases and new leases. 4. Person paying be it old tenant or guarantor can gain control by calling for an **overriding lease** i.e a headlease between landlord and defaulting party. They become the landlord! **s18 LTA** This section applies where an assignee agrees to a variation of the terms of the lease which was not contemplated in the original lease **s19 LTA 1995** If previous tenant pays sum in s17 notice in full then they can demand an overriding lease. This is: 1. Onthe same duration as oriignal lease **less 3 days** 2. Same terms 3. Granted by the landlord to the former tenant headlease between landlord and defaulting party. They become the landlord!

Answer 41

Less than for lender who has power of sale etc 1. Debt action 2. Commercial rent arrears recovery 3. forfeiture

Answer 42

Not paid rent by due date in lease: 1. Debt action - 6years limitation - NOT damages - may pursue the current tenant, a former tenant (via privity of contract or an AGA) or both. In relation to a former tenant, the landlord will need to serve a default notice under s 17 LT(C)A 1995. - Suing for debt acknolwedges existence of lease and bars forfeiture 2. CRAR - landlord can enter and seize goods but only commerical. PRocedure: - only availible against tenant currently responsible - No need for court order - Only commerical (a) 7 days notice in writing of intention must be given by enforcement agency (can challenge in Court) (c) Can't take goods necessary for the tenant's business (inc computer or phones) up to £1,350. (d) Iiems must belong to tenant - no hire purchase (e) If don't pay then can sell but must be at a **public auction** (f) Must be given 7 **CLEAR** says notice in writing before sale (g) Debt must be outstanding for 7 days (h) Debt must be possession rent and cannot be for example insurance rent or service charge - CRAR does not bring the lease to an end. Exercising CRAR acknowledges the existence of the lease and may therefore waive the landlord’s right to forfeit

Answer 43

Procedure (**must have a forfeiture clause to use**) - Usually clause will say landlrod re-enters the premises to forfeit - Not always labelled forfeiture claus,e soemtimes "re-entry" or "provisios" - Common law needs a **formal demand to be made pre forfeiture** but if the lease specifically dispenses witht this then don't need to give one - If lease has forfeiture clause but is silent on making a demand, then a formal demand for payment must be made first - If cannot make **peaceful re-entry** to forfeit, then apply to Court for an order. - Tenant can apply to court for **relief from forefeiture** and the Court will have a **DISCRETION TO STOP FORFEITURE** but will be subject to the tenant paying the arrears and **ALL COSTS**. - Can waive a right to forfeiture but carry out one of the otehr debt recover options (its amost like affirming a contract and barring termination) - showing an intention to to continue the relationship. E.g **demanding or accepting rent** - If waive right to forfeiture it will only be for that particular breach and can still forfeit for a new breach 2 ways to frofeit: 1. Peacefully re-enter premises;OR 2. Sue for possession and get a possession order. If peacefully re-entering, s6 Criminal Law Act makes it an offence to use force to reposses and commercial or resi prop. **s2 Protection from Eviction Act 1977 means if the premises are let partly or wholly as a dwelling (and the occupier is still residing) then must get a Court order). Tenant's protection: - Tenant can apply to court for **relief from forefeiture**: (a) IF landlord sues for possession and tenant pays all outstanding arrears and costs before trial then court generally MUST grant relief (b) If apply SIX MONTHS from court order for possession, pay all arrears and costs, Court has a discretion to award relief (c) If landlord forfeits non resi lease without Court order (peaceful re-entry) the SIX MONTH TIME LIMIT DOES NOT APPLY! Court can use its equitable jurisdiction to grant relief

Answer 44

1. Damages 2. Specific Performance 3. Forfeiture 4. Self-help

Answer 45

For most breaches other than rent & repair: normal contractual rules, Hadley v Baxendale, either: 1. Losses that arise naturally from the breach; or 2. Losses reasonably considered to be in contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Can sue current tenant, previous tenant under privity of contract (old lease) or AGA (new lease). Need not serve a s17 notice as damages are not a fixed charged. **Damages for rent cov** *s18 Landlord and Tenant ACt 1927* Limits damages to the cost of the landlord's revisionary interest devaluing as a result of disrepair (this is technically the landlord's loss?). Devalue in capital may be less than repair!! May not be attractive. *The Leasehold Properties (Repairs) Act 1938* - **NOTICE PROVISIONS** Applies to leases **granted *for or more than* 7 years with three years OR MORE left to run**. Way to remember is more than 7 years makes it a registerable disposition and more than 3 years left means it isn't a parol lease. This act provides a special procedure for claiming damages: 1. Serve a s146 notice (see other slide) and explain tenant's right to counter-notice. 2. Tenant has **28 days** to serve a counter notice. 3. If a counter notice is served then the landlord must have leave from the Court to proceed any further with proceedings.

Answer 46

Discretionary rememdy, test below: *Rainbow Estates Ltd v Tokenhold Ltd [1999]*: Court granted specific performance because: 1. No forfeiture or self help clause; 2. Damages not adequate due to condition of the property deteriorating 3. Landlord not doing to harrass the tent; and 4. In circumstances it was appropriate.

Answer 47

Forfeiture for breach of covenant, other than the covenant for non-payment of rent, must be expressly reserved in the lease. If the landlord waives the breach then the landlord loses the right to forfeit for that breach. 1. Landlord must serve a s146 notice on the tenant which: (a) specifies the breach (b) requires the tenant to remedy the breach **within a reasonable time**if it is capable of a remedy (c) require the tenant to pay compensation for said breach if desired Breach of a covenant against **alienation, ie not to assign or underlet**, is a once and for all breach and is not capable of remedy. The landlord, therefore, does not have to include a reasonable time within which to remedy the breach within their s 146 notice (however, relief against forfeiture may be available). 2. If the tenant does not comply then can forfeit by: (a) peaceful re-entry (b) Court order If let out as a dwelling house and tenant is still in occupation then need a Court Order for forfeiture - Protection from Eviction Act 1977. Forfeiture for a breach of a repair covenant AND any other covenant (other than rent) first needs a s146 specifying breach and repairs in reasonably time. However, breach of repair covs also need the counter-notice info included (NOT case for other covs) This is affected by** Leasehold Property (Repairs) Act**. If the lease was **granted for 7 years OR more with 3 years OR more years left to run**, if trying to forfeit for breach of repair cov the landlord must follow these steps: 1. The s146 notice must explain to the tenant he has a right to counter claim in 28 days 2. If the counter-notice is served then need leave of court to continue with forfeiture.

Answer 48

Tenant can apply to Court for relief for either (a) possession proceedings or (b) for commercial, peaceful re-entry. Different to frofeiture for rent cov breach. 1. Tenant can apply for any order they see fit, but he who comes to equity must come with clean heands. Do not delay, do not breach lease? Effect of relief is lease continues as it did pre forfeiture. 2. If a headlease is forfeited any sub lease ceases to exist. A subtenant can apply for relief against forfeiture of head lease (s146(4) LPA) - **even if headtenant cannot obtain relief themselves!!!!**. Court will vest headlease in undertenant on: (a) such terms as to rent, costs and damages as court sees fit.

Answer 49

1. Landlord can enter premises to **check compliance** with repair cov 2. If no compliance, landlord must: (a) Serve notice specifying the works that must be done (b) Include a specified period the work must be **STARTED** 3. If tenant doesn't start the works in the spec period, or is not **proceeding diligently** with works then: 4. Landlord may enter the premises and carry out the works himself 5. Landlord can then recover cost of carrying out works **AS A DEBT** thereby avoiding weird provisions on damages.

Answer 50

1. Specific performance & injunction - discretionary remedy, damages must be adequate so probs not for a repair cov 2. Damages - Hadley v Baxendale 3. Self-help: * Tenant cannot withold rent for the landlord not performing obligations under lease * However, if not dealing with repair cov then the tenant: (a) issue notice specifying repairs and stating the tenant will carry out the repairs if the landlord does not (b) if landlord doesn't do it, can then withold rent until the ascertained cost of repair has been repaid - **COMMON LAW SET OFF** * Or, if tenant does withold rent and landlord sues, equity may allow the tenant to have their unliquidated claim set off against the liability for rent. This 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. The tenant’s claim must, therefore, be one that arises directly from the relationship of landlord and tenant created by the lease. This is equitable set off. MOST WELL DRAFTED LEASES WILL EXCLUDE COMMON LAW AND EQUITABLE SET OFF.

Answer 51

* effluxion of time (fixed term come to end) * notice to quit (periodic, 6 months for 1 year lease, protection from eviction act says occupied dwelligns need a minimum of 4 WEEKS NOTICE); * break clause (Landlord or tenant can use, mutually agreed in the lease, fixed date or rolling basis and can use upon notice); * surrender (agreement by landlord and tenant, can be handing back keys (implied) or if express needs to be a deed - usually deed for commerical. Lease merged into revisionary estate and extinguished. Surrender only terminates leases agreed - does not extinguish subleases - even if the sub-tenants rights were NOT known to landlord); * disclaimer (liquidator of bankruptcy trustee can disclaim any contract giviing rise to paying money or performing onerous acts. Release tenant from any further liability but does not end sub-lease. Sub-tenant can seek order to vest disclaimed prop in themselves.); * frustration (where unexpected even makes contract radically different or impossible to perform. Never happened in reported case on lease before. Maybe if building was destroyed in a fire or something); * repudiatory breach (limited case law on this) * merger (opposite of surrender - tenant purchases freehold. Provided not expressed otherwise, lease merges into revisionary title); and * forfeiture (see above).

Answer 52

* Prove they own title (deduction of title) show the owner, and previous owners, had uninterrupted possession for 15 years - s44 LPA 25. * Find good root of title and draftign Epitome of Title from the root * Good root of title needs to be: 1. shows ownership of legal and equitable interest in land; 2. recognisable description of land; 3. cast no doubt in title; and 4. at least 15 years old. * root of title usually a conveyance (by deed) on assumption the title was investigated by previous solicitor Where an unregistered lease is being sold, the epitome of title will include the lease, plus documents showing uninterrupted possession for 15 years (or a shorter period if the lease is for a duration of less than 15 years). Buyer will scrutinise epitome of title looking for third party interests that may bind buyer. It is possible that a conveyance of the land to either the seller or a predecessor in title creates, for example, an easement or a restrictive covenant. Where the epitome reveals a third party right created prior to the root of title, the buyer is entitled to call for a copy of the earlier document (usually in conveyance).

Answer 53

ALL legal estates and interest bind the world, to be legal they must: 1. Be capable of being legal i.e be in s1(1) or (2) of LPA 1925; and 2. Use the correct formalities. For example: 1. Deed of transfer drafted correctly 2. Grant of deed drafted correctly 3. Parol lease in any form 4. Easement drafted correctly 5. Easement by prescription, necessity, Wheeldon v Burrows, s62 LPA Exception: Puisine mortgages: - Must be protected by land charged (not protected by depsoit of deeds) even though legal.

Answer 54

1. Land Charges 2. Doctrine of Notice.

Answer 55

* Introduced in Land Charges Act 1925 * Replace act with Land Charges Act 1971 * If interest isn’t in s2 of LPA 72 then interest cannot be protected as land charges * Classes include: 1. Estate contract = C(iv) 2. Restrictive covenant = D(ii) 3. Equitable easement = D(iii) 4. Home right = F 5. Puisne mortgag = C(i) 6. REGISTER EQUITABLE LEASES! Not registered against land, registered agains the name of the estate owner! This is why buyer must do a landcharges search against all estate owners in the epitome of title. Even if estate owners pre-date the the root of title. Make sure you receive a **SEARCH CERTIFICATE** AS THIS WILL BIND THE BUYER. if a charge has been registered, but for some reason the search does not bring it up, buyer still bound but can get statutory compensation where suffered loss. **Registration on Land Charge deems ACTUAL NOTICE. Buyer will be bound even if do not know about it.** Must register land charge before completion or its void and will not bind a buyer **for money for money's worth**. Even if the buyer had actual notice (think of case where farmer granted his son an option, which is an estate contract C(iv). Farmer ended up selling the land to his wiife. Son argued wife had actual noticed, but failed as he didn't register charge).

Answer 56

Doctrine of notice applies to the following interests - now codified in s199 LPA 1925: 1. Any interests that pre-date 1925 (i.e creation of the LPA); or 2. Any interest under a **TRUST regardless of when created**. Interests post 1925 can be protected by land charge but interests under a trust cannot so need doctrine of notice! Rule is: *Buyer is bound by an equitable interest unless the buyer is **EQUITY'S DARLING***. What is equity's darling? **BONE-FIDE PURCHASER FOR FOR VALUE OF A LEGAL ESTATE OR INTEREST WITHOUT NOTICE OF THE EQUITABLE INTEREST.** This is broken down: 1. Buyer in good faith, acting honestly, no fraud (bone-fide) 2. Consideration must be given i.e if gifted doesn't count (could even be £1 3. Purchasing legal interest or estate (i.e mortgage or estate by deed). If an equitable interest then may be bound by the interest - this is because of the equitable maxim *where the equities are equal, the first in time will prevail* If a buyer is bone-fide, purchase for consideration of a LEGAL estate/interest, they still need NO NOTICE. What constitutes notice of the equitable interest? There are three types: 1. Actual The buyer knows, maybe the seller already told them. NOT RUMOUR OR GOSSIP 2. Constructive Put on notice and should have taken reasonable steps to inquire, e.g, looked at a house and it was clear there was someone else living there. Should have asked. Or seen a warn out track indicating easement, should have asked. Not obliged to look in drawers or cupboards. If the buyer **fails to make enquiries that a prudent buyer would, the buyer will have constructive notice of equitable interests.** 3. Imputed If the buyer’s agent has actual or constructive notice of an equitable interest, this will be imputed to the buyer. This is on the basis that the knowledge of the agent is assumed to be the knowledge of the principal (buyer). Agent = surveyor or solicitor. NOT estate agent. If the buyer can demonstrate that they are a bona fide purchaser for value of the legal estate or interest without notice (‘Equity’s Darling’), they will **take free of pre-1925 equitable interests and beneficial interests under a trust**. Beneficial interest: think Constructive Trusts, has a wife (even though hours in husband's name) made signficiant improvements to property?

Answer 57

It is a way for a buyer to take the property free of **beneficial interests under a trust**. Only relates to trusts. Links with the doctrine of notice. Need to pay purchase money to two trustees at least, then the beneficial interest moves from the property to the purchase price! If only have 1 legal owner, then must appoint second trust before completion. Ex: I am buying a house from 1 owner, his wife is living at the house. When I inspect to house I don't make any enquiries as to if she has an interest. I therefore have constructive notice and will be bound by the interest. If the seller appoints a second trustee before completion, and I pay the purchase price to 2 trustees, I will take the property free of the beneficial interest.

Answer 58

Insurance = the accuracy of the electronic register, updated by Land Registry, is guaranteed by the state. If it is wrong, errors will be rectified and and person affecred may claim compensation (indemnity principle) The key aims of the LRA 2002 are: * to extend the scope of first registration, so that more titles are registered; and * that the register is a more complete reflection of the title (‘the mirror principle’)

Answer 59

Qualifying estate = unreg freehold estate or leasehold over 7 years Transfer of a qualifying estate by following methods triggers first reg: 1. Sale 2. Assent (transfer ownership of property from deceased to beneficiary) 3. Gift 4. Court order (e.g divorce, transfer in compliance of court order) Creation of a **first legal mortgage** of qualifying estate also triggers first reg

Answer 60

1. Investigation of title (after deduced by seller) - searches / enquiries 2. Inspect the land (surveys etc) 3. Search Land Charges Register for incumbrances that bind buyer 4. In addition, the buyer will check the **Register of Cautions against First Registration** held by the land reg for cautions against first reg. This is essentially for people who have an interest in unregistered land to caution they have an interest. The cautioner will be alerted as to an application for first registration.

Answer 61

Voluntary registration Qualifying estate owners can apply for voluntary registration at any time (s 3 LRA 2002). There is a fee discount for such an application as an incentive for land owners to register.

Answer 62

Compulsary that leases over 7 years need to be registered on transfer. Leases less than 7 years are an **overriding interest**. Need to register qualifying estate in **2 months** or: 1. Legal estate reverts back to seller; 2. The attempt to grant a lease fails; or 3. The attempt to create a mortage fails. Equitable interest / mortgage will be held until registration. Land reg may extend the period for registration if there is a good reason.

Answer 63

Title is already registered (‘a registered estate’). This could be a freehold or a lease for more than seven years. Once registered, certain transactions (‘registrable dispositions’) will only have legal effect if they too are registered (s 27 LRA 2002). These include: (a) the transfer of a registered estate; (b) the grant of a legal lease for more than seven years out of a registered estate. On registration, this will be given its own title number and title register. It will also appear in the charges register of the landlord’s title within the schedule of leases, as it burdens the landlord’s title; (c) the grant of a legal charge. This will appear in the charges register of the borrower’s title (s 27(2)(f) LRA 2002). A registered charge is shown by two entries. The first identifies that there is a charge and the date of creation. The second identifies the proprietor of the charge (the lender); - think of legal charge as mortgage; and (d) an expressly granted legal easement or profit (s 27(2)(d) LRA 2002). This must be registered against the title to which it relates. It will also appear in the charges register of the servient land. Will still be equitable interest only!

Answer 64

The mortgage REGISTERED FIRST (entered on the register), not the mortgage created first.

Answer 65

Minor interests are third party interests which are not registerable dispositions and are not overriding. For example: 1. Estate contracts 2. Home rights 3. Interests under a trust 4. Equitable leases 5. Restrictive covenants 6. Equitable easements or profits created AFTER 2003. Buyers will take free the property in the absence of either (1) notice of the interest; or (2) restrictions (where notice don't apply).

Answer 66

**Restriction** A notice cannot appear on a title for beneficial interests under a trust. In unreg land, express, constructive or implied notice of the trust interest must be given. In reg land a **restriction** is palce on the **proprietorship register** to alert the buyer that the property is subject to a third party beneficial interest, and the current proprietor has limited rights to deal with the property. If a buyer sees said restriction, it will know that it needs to overreach the beneficial interest to take the property free of the interest. Pay purchase price to 2 trustees! Restriction regulates the making of a disposition (and prevents it if not in accordance with terms). Need not have the registered proprietor's permission. If tenants in common, will see the Form A restriction in the proprietorship register: *“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”* If you see the above, but you know one of the owners is dead, there will be a beneficiary interest that passed with the estate. Must have the registered proprietor appoint a trustee to overeach. No need if the interest will pass to them under will. No need if joint tenants. **Notices** Other interests, other than trusts of land, must be protected by way of notice in the charges register. Need not have proprietors permission to lodge notice, but if notice challenged (and win) can claim damages for losses suffered. LAND TRUSTS CANNOT BE PROTECTED WITH A NOTICE!

Answer 67

These are interest which do not appear on the register (by way of notice or restriction) but nonetheless bind the buyer. *s29 Land Registration Act 2002*, a purchaser for valuable consideration of **registered land** takes free all interests save for: 1. registered charges; 2. interests registered as notice in the register; or 3. interests which override (set out in sch 3). Sch 3 overriding interests (para 1 and para 3): 1. **Legal lease** of less than 7 years (less than 3 years can be created informally, over 3 years need to be a deed); 2. Legal easements and profits created by implication **after 12 October 2003**. Can be created by: (a) Prescription (b) Necessity (c) s62 LPA 1925 (d) Wheeldon v Burrows (e) Common intention In order for an implied easement to be overriding, one of the following conditions must be satisfied: 1. The buyer had actual knowledge of the easement; OR 2. The easement or profit is apparent from a reasonable inspection of the land; OR 3. The easement or profit has been used at least once in the year prior to the disposition. Para 2 of Sch 3: *Para 2 is a safety net for minor interests held by people in ACTUAL OCCUPATION of the property. Interest must relate to the land they are occupying* You need the following to have an overriding interest under Para: **A proprietory interest** plus **actual occupation**. It cannot be someone else living there, has to be the person with the proprietory interest!! I.e can't have your son live there.

Answer 68

**What interests can be overriding?** Must be a beneficial interest under a trust, and also either a equitable lease or an option. There are 3 exceptions: 1. Personal rights cannot be upgraded i.e contractual licenses 2. Home rights are excluded despite occupation 3. Easements relate to teh exercise of land and not actual occupation! **What is occupation?** TEST *Abbey v Cann*: 1. Occupation depends on the nature and purpose of the property (resi will be different to commercial) 2. Does not necessarily involve personal presence, a caretaker or representative **of a company** could live there instead 3. Need a degree of **permanence and continuity** - NOT MERE FLEETING PRESENCE. **Temprary absence** *Resi:* As long as there is: 1. Evidence if occupation (furniture, possessions etc); and 2. Intention to return will remain in occupation. In Chhokar v Chhokar [1984] Fam Law 269 the husband was the sole legal owner and secretly sold the house whilst his wife was in hospital (giving birth). The court found that the presence of her furniture in the house provided evidence of her continuing occupation and her intention to return. She was, therefore, in actual occupation, despite her temporary absence. In Link Lending v Bustard [2010] EWCA Civ 424 the claimant was involuntarily detained in a psychiatric unit. Her possessions and furniture remained at the property to which she made weekly supervised visits. The court found that the relevant factors in determining whether somebody is in actual occupation include: * the **degree of permanence** and **continuity** of presence; * the **intentions** and wishes of that person; * the **length of absence** and **reason** for it; * the** nature of the property**; and * the personal **circumstances **of the person. The court found that the involuntary residence elsewhere together with a persistent intention to return home when possible was sufficient for the claimant to be in actual occupation *Commercial* Principles: 1. Occupation depends on the nature and purpose of property; 2. Some physical presence and degree of permenance and continuity to be sufficient to put someoen, who was inspection the land, on notice. In Kling v Keston Properties Ltd (1983) 49 P&CR 212 a car was parked regularly in a garage. It was held that this was the normal use of the garage and could amount to actual occupation. In Malory Enterprises v Cheshire Homes [2002] Ch 216 the land in question was derelict with disused buildings and open land. The claimants were found to be in occupation on the basis that they had: * erected fences; * put up ‘no trespassing’ signs; * replaced wooden fencing with high security steel fence to prevent vandalism; and * replaced a lock that had been broken. In Thomas v Clydesdale Bank Plc [2010] EWHC 2755 (QB), Ms Thomas claimed a beneficial interest under a constructive trust and an overriding interest under Sch 3, para 2 LRA 2002. The property was uninhabitable due to ongoing renovations. Ms Thomas visited the property every other day and there were builders and an interior designer on site. Ms Thomas had reasonable prospects of establishing: * that there was a degree of **permanence and continuity **in her presence; * that her **intention and wish was to reside permanently at the property**; and * that her **presence was sufficient for the nature of the propert**y in the course of renovation.

Answer 69

Overriding status will be lost if: 1. The third pary did not disclose their right upon inquiry when they could be **reasonably expected to do so**; and 2. The person's occupation was not obvious upon a **reasonable and careful** inspection of the property **unless the byer had ACTUAL notice**. In Thomas v Clydesdale Bank Plc [2010] EWHC 2755 (QB) the court found that it is the **visible signs** of occupation which have to be obvious on inspection:

Answer 70

There are 2 ways you can satsify the test: 1. A proprietory interest (i.e beneficial interest + equitable lease or profit) PLUS non-obvious actual occupation plus actual knowledge; or 2. A proprietory interest (i.e beneficial interest + equitable lease or profit) PLUS obvious actual occupation If someone (e.g the owner) concealed the beneficiaries possessions (therefore hiding occupation) the buyer would not be bound.

Land Law Flashcards

(94 cards)