Land Law Flashcards
(344 cards)
1
Q
What is an assent in legal terms?
A
The way the legal title of land owned by someone who has died is transferred to the appropriate beneficiary by the personal representatives of the deceased.
2
Q
Who is referred to as the assignee?
A
The party to whom a right is transferred from another, particularly in a leasehold context.
3
Q
Define the term assignor.
A
The party who transfers a right to another, specifically the existing tenant who transfers their leasehold estate.
4
Q
What are chattels?
A
Items of property other than freehold land, typically moveable items or personal property left at a property when sold.
5
Q
What is HM Land Registry?
A
A non-ministerial department of the UK Government created in 1862 to register the ownership of land and property in England and Wales.
6
Q
Who is a landlord?
A
The party who enters into a lease with a tenant, allowing the tenant to occupy the land on agreed terms.
7
Q
What is a licence in legal terms?
A
A document which gives consent or agreement of the licensor to allow a party to do something, with no transferable interest in land.
8
Q
Fill in the blank: The borrower in a mortgage agreement is known as the _______.
A
[mortgagor]
9
Q
Fill in the blank: The lender in a mortgage agreement is known as the _______.
A
[mortgagee]
10
Q
What is privity of contract?
A
The principle that only the parties to the contract can enforce its terms for the entire duration of the contract.
11
Q
Define privity of estate.
A
The relationship that exists when two persons have a relationship of landlord and tenant.
12
Q
What is registered land?
A
Title to land which has been registered at HM Land Registry following an event that triggers first registration.
13
Q
Who is a tenant?
A
The party who enters into a lease with a landlord, allowing them to occupy the land on agreed terms.
14
Q
What is unregistered land?
A
Land that is not registered and where HM Land Registry cannot assist regarding title enquiries.
15
Q
What distinguishes real property from personal property?
A
Real property is land or an interest in land and is immovable, while personal property is everything that is not land.
16
Q
What are the two categories of personal property?
A
- Movable items (chattels)
- Intangible rights (choses in action)
17
Q
What is a fixture?
A
Property that has become sufficiently attached to land that it becomes part of the land.
18
Q
What is a fitting?
A
Personal property that is not attached to the land.
19
Q
What is the significance of the Town and Country Planning Act 1990?
A
It categorizes property based on its use and links to the planning system in England and Wales.
20
Q
What does ‘sui generis’ mean in property use?
A
A classification for uses that do not fall within any use class, meaning they are in a class of their own.
21
Q
What are corporeal hereditaments?
A
Tangibles that include the surface of the land, buildings, mines, minerals, trees, and fixtures.
22
Q
What are incorporeal hereditaments?
A
Intangibles that include rights, easements, and rents.
23
Q
What passes with the land on sale?
A
All corporeal and incorporeal hereditaments.
24
Q
What is the difference between a fixture and a fitting?
A
A fixture forms part of the land and passes with the land on sale, while a fitting can be removed by the seller when the land is sold.
25
What is the legal owner of land in England and Wales referred to?
The holder of a legal estate in land.
26
What are the two legal estates in land in England and Wales?
* Freehold (fee simple absolute in possession) * Leasehold (term of years absolute)
27
What is the beneficial interest also known as?
Equitable interest.
28
What rights does the holder of the legal estate have?
The right to possess, use, sell, or transfer the property.
29
What does the holder of the beneficial interest receive?
Economic benefits from the property, including sale proceeds or rental income.
30
How many persons can hold the legal estate in land?
A maximum of four persons of full age and with mental capacity.
31
What is commonhold?
A form of freehold allowing ownership of individual units in a building, managed by a commonhold association.
32
What are 'third-party rights' in land?
Rights over land belonging to another that limit the landowner's use.
33
What are the five legal interests in land specified in the LPA 1925?
* Mortgages * Easements * Rentcharges * Profits à prendre * Rights of entry
34
What distinguishes legal interests from equitable interests?
Legal interests are recognized by law, while equitable interests are only recognized by equity.
35
What is a freehold covenant?
An obligation to do or not do something related to land.
36
What creates an equitable interest in land when purchasing?
An agreement to purchase land.
37
What are matrimonial home rights?
Rights under the Family Law Act 1996 for a non-owning spouse or civil partner to occupy the matrimonial home.
38
What is an equitable mortgage?
An agreement to create a mortgage or failure to create a mortgage by deed.
39
Why does the distinction between legal and equitable interests matter?
Legal interests bind all third parties, while equitable interests bind only certain third parties.
40
What is required for a contract for the sale of land to be valid?
* Offer * Acceptance * Consideration * Intention to create legal relations * Parties with legal capacity
41
What additional requirements does the Law of Property (Miscellaneous Provisions) Act 1989 impose?
* Must be in writing * Must include all agreed terms * Must be signed by the contracting parties
42
What is a deed?
A special type of contract used to create or transfer interests in land.
43
What are the requirements for a valid deed?
* In writing * Intended to be a deed * Validly executed (signed, witnessed)
44
What does attestation mean in the context of a deed?
The witness must be present when the signatory signs and must sign the deed.
45
What is required for a document to be considered signed?
Each individual must sign the document
## Footnote
Making a mark on a document is treated as signing it. The signature should be in ink or other indelible medium.
46
What does attestation mean in the context of signing a deed?
Each individual must sign in the presence of a witness who attests the signature
## Footnote
The witness must be physically present when the signatory signs and must see the signatory signing the document.
47
What must a witness do after observing a signature?
The witness should sign the deed with their signature, printed name, and address
## Footnote
A party to the deed cannot witness the signature of another party to the deed.
48
What does delivery mean in the context of a deed?
The document must be delivered as a deed, acknowledging an intention to be bound by its terms
## Footnote
This acknowledgment can be expressed or implied through words or conduct.
49
What is the significance of the signature clause on a deed?
It states, 'Signed and delivered as a deed by the said…'
## Footnote
This clause indicates the formal execution of the deed.
50
What happens if a party to the deed does not sign in the presence of a witness?
The deed will not be valid.
## Footnote
Validity requires compliance with legal formalities.
51
What is an equitable interest?
An interest created when legal formalities are not complied with.
## Footnote
Equity may recognize an interest for fairness.
52
What must be used to create an interest in land?
A deed.
## Footnote
This is essential for legal interests in land.
53
Provide examples of interests in land created by a deed.
* Mortgage deed
* Deed of easement
* Transfer of part
## Footnote
These examples illustrate different legal rights over land.
54
What exceptions exist for transferring an interest in land without a deed?
* An assent in writing
* A lease for a term of not more than three years
## Footnote
These exceptions are outlined in LPA 1925 s 52.
55
What is a transfer of whole (TR1)?
The standard HM Land Registry form used when the whole of the land is sold.
## Footnote
It is commonly used in property transactions.
56
What is a transfer of part (TP1)?
The standard HM Land Registry form used when part of the land is sold.
## Footnote
This form is essential for subdividing property interests.
57
What is a conveyance?
The traditional deed used in the unregistered conveyancing system to transfer an interest in unregistered land.
## Footnote
It is rarely used in practice today.
58
How are equitable interests in land typically created?
* Express trust
* Attempt to create a legal interest that has failed
* Implied trust due to contributions
* Declaration of trust among co-owners
## Footnote
Each method represents a different approach to establishing equitable interests.
59
Who is referred to as a settlor in an express trust?
A person who wishes to create a trust for the benefit of third parties.
## Footnote
Beneficiaries are often children or grandchildren.
60
What is a beneficial interest in land by implication?
An interest recognized when a person contributes to the acquisition of land but is not a legal owner.
## Footnote
This creates an implied trust in favor of the contributor.
61
What is required to assign a beneficial interest in land?
A deed of assignment.
## Footnote
This is applicable only for tenants in common.
62
Why can't joint tenants assign their beneficial interest?
They do not hold an identifiable share in the property.
## Footnote
Joint tenants own 100% of the property together.
63
What must a beneficial joint tenant do to assign their interest?
Sever the joint tenancy to create a tenancy in common.
## Footnote
This is done through a notice of severance.
64
summary of key principles of nature of land
Land law deals with the acquisition of estates and interests in land and the creation of
rights and obligations over land.
* Real property is land or an interest in land and is immovable.
* Personal property is everything that is not land and is divided into two categories:
o movable items – for example a table or a washing machine (also known as chattels),
and
o intangible rights (that do not relate to land), which do not physically exist, for example
debts, stocks and patents.
* Some property can become so sufficiently attached to land that it becomes part of the land.
* “Land” includes the physical land, buildings and fixtures (corporeal hereditaments) and
rights over the land (incorporeal hereditaments).
* Land includes the air above and ground below the land subject to certain exceptions:
o airspace
o things in the ground
o wild animals, and
o things found on the land.
* A fixture is attached to land and forms part of the land.
* Chattels are goods and other things that are not fixtures or otherwise part of the land.
* There are two tests for determining if something is a fixture:
o degree of annexation test – if something is fixed/attached/vaulted to the land, it is a
fixture. If it is immovable or resting on its own weight, then it is a chattel (fitting), and
o the purpose of annexation test – whether the chattel was put there to improve the
property.
* Fixtures can only be transferred by conveyance, whereas chattels only need to be
delivered to another to transfer ownership.
* The holder of the legal estate has the right to possess and use the property and can sell or
transfer it and grant rights over, and interests in, it.
* The beneficial owner is behind the scenes and is entitled to the economic benefit – they
can live in the property, take a share of the rental income or the sale proceeds when the
property is sold.
* The holder of the legal estate and the beneficial owner may be the same person or they
can be different people.
* Under the LPA 1925, there are only two legal estates in land in England and Wales:
o freehold (the fee simple absolute in possession): the freehold estate is of indefinite
duration, and
o leasehold (a term of years absolute): the leasehold estate has a fixed, maximum
duration which means that there is an ascertainable date upon which the lease will
end.
College of Legal Practice Ltd (UK ID 11734212)
© Copyright 2024 (used under licence from the copyright owner) 18
THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE
* Commonhold is a form of freehold ownership which is rarely used in practice.
* There are five legal interests in land:
o mortgages
o easements
o rent charges
o profits à prendre, and
o rights of entry.
* If an interest in land is not one of the two legal estates or one of the five legal interests by
definition, it can only be an equitable interest, such as:
o freehold covenants
o estate contracts
o matrimonial home rights
o beneficial interests under a trust, and
o equitable mortgages.
* A number of legal and equitable interests can exist in the same piece of land at the same
time – these are known as concurrent interests.
* A contract for the sale of land must meet the usual requirements for a valid contract and be
in writing, include all agreed terms and be signed by the contracting parties.
* A contract for sale of land that does not meet these requirements is not enforceable.
* The creation of the two legal estates and the five legal interests must be by deed.
* A valid deed must be:
o in writing
o intended on the face of it to be a deed, and
o validly executed – by signature, attestation and delivery.
* A deed must be used to create or transfer an interest in land.
* Equitable interests can be created in a number of ways:
o express trust
o an attempt to create a legal interest which has failed
o by implication, and
o by declaration of trust.
* An equitable interest in land must be transferred (assigned) using a deed of assignment.
65
What must a seller demonstrate to sell or transfer land?
Legal title to the land
## Footnote
This can be shown through unregistered title or registered title.
66
What is 'unregistered' title?
Title based on documentary evidence of ownership
## Footnote
This contrasts with registered title, which is evidenced by the HM Land Registry.
67
What is a 'registered' title?
Title evidenced by the HM Land Registry register
## Footnote
Also referred to as 'office/official copies' of the title register.
68
What does 'deducing' title mean?
The process of demonstrating ownership by providing title documents
## Footnote
This is done by the seller’s solicitor to the buyer’s solicitor.
69
What does 'investigating' title involve?
Checking that the seller holds the legal title and is entitled to sell the land
## Footnote
This is performed by the seller's and buyer's solicitors.
70
How long must documentary evidence of ownership go back for unregistered titles?
At least 15 years
## Footnote
This shows an unbroken chain of ownership from the root of title to the current seller.
71
What is the 'root of title'?
A document that is at least 15 years old and confirms ownership
## Footnote
It must deal with the whole legal and equitable interest in the property.
72
What are the most common unregistered documents of title?
* Conveyance on sale
* Deed of gift
* Mortgage deed
* Assent
## Footnote
These documents serve different purposes in transferring ownership.
73
What happens to unregistered title documents once the title is registered?
They no longer have legal significance but may be referenced
## Footnote
The registered title is the primary proof of ownership.
74
When does title to unregistered land pass?
On legal completion
## Footnote
This contrasts with registered title, where title passes on registration.
75
What is the Land Registration Act 1925 (LRA 1925)?
The original statute for land registration in England and Wales
## Footnote
It has been repealed and replaced by the Land Registration Act 2002.
76
What is the primary objective of the Land Registration Act 2002 (LRA 2002)?
To ensure all land in England and Wales is registered at HM Land Registry
## Footnote
This aims to simplify and secure land ownership.
77
What are 'triggers' for first registration?
* Conveyance on sale of freehold land
* Assent
* Deed of gift
* Creation of a first legal mortgage
* Grant of a lease for more than 7 years
* Assignment on sale of a lease exceeding 7 years
## Footnote
These events necessitate registration of unregistered titles.
78
What is the timeframe for applying for first registration after a triggering event?
Within 2 months
## Footnote
This is critical for ensuring timely registration.
79
What does HM Land Registry register?
Only legal estates
## Footnote
The register records ownership of the legal estate, not equitable interests.
80
What are the sections of a register of title?
* Header section
* Property Register
* Proprietorship Register
* Charges Register
* Title plan
## Footnote
These sections contain vital information about the property and its ownership.
81
What does the Proprietorship Register specify?
The class of title held and the name of the current holder(s)
## Footnote
It also includes any restrictions affecting the title.
82
What is an 'absolute freehold title'?
The best class of title available that cannot be challenged
## Footnote
It provides full ownership rights without limitations.
83
What is a 'qualified title'?
A title with specified interests excepted from the effect of registration
## Footnote
This situation is rare in practice.
84
What is a 'possessory title'?
A title based on possession rather than documentary evidence
## Footnote
It can be upgraded to absolute freehold title after 12 years of unchallenged possession.
85
What estates can be substantively registered under the LRA 2002?
* Freehold estate
* New lease over 7 years
* Existing lease with more than 7 years unexpired
* Rent charges
* Franchises
* Profits à prendre in gross
## Footnote
These estates receive their own register and title number.
86
What are notices in registered land?
Entries in the register concerning interests affecting a registered estate
## Footnote
They protect third-party rights and can be agreed or unilateral.
87
What is the difference between agreed and unilateral notices?
* Agreed notice: Requires consent from the registered proprietor
* Unilateral notice: Does not require consent
## Footnote
Both types provide similar protection but follow different procedures.
88
What is a restriction in the context of registered land?
An entry that prevents dealings with the land unless terms are complied with
## Footnote
It ensures that certain conditions must be met before registration.
89
What is Form A restriction?
A restriction on dispositions by a sole proprietor
## Footnote
It prevents registration of dealings unless authorized by court order.
90
What must be complied with before HM Land Registry registers a dealing?
The terms of the restriction must be complied with.
91
What is the most common restriction produced by HM Land Registry?
Form A (Restriction on dispositions by sole proprietor).
92
What does Form A restrict?
No disposition by a sole proprietor of the registered estate under which capital money arises is to be registered unless authorised by an order of the court.
93
What does the restriction in Form A denote?
The existence of a behind-the-scenes beneficial interest or interests.
94
How can an interest under a trust of land be protected?
By a restriction.
95
Can an interest under a trust of land be protected by a notice?
No.
96
What does the register of title record?
The ownership of the legal estate.
97
True or False: The register guarantees that the registered proprietor is the beneficial owner.
False.
98
What are overriding interests?
A class of interests that do not appear on the register of title but can bind a buyer of the land.
99
Which acts created overriding interests?
LRA 1925 and mostly retained by the LRA 2002.
100
What is a significant risk to a buyer regarding non-owning occupiers?
They could be entitled to remain in the property after the purchase if they have an overriding interest.
101
What is the common example of an overriding interest related to leases?
Leases for 7 years or less.
102
What must be done for leases longer than 7 years?
They must be substantively registered in their own right.
103
What is another common overriding interest besides leases?
Persons in actual occupation.
104
What is required for a person in actual occupation to have an overriding interest?
They must have rights in the property, such as contributing to the purchase price.
105
Fill in the blank: A non-owning spouse or civil partner with a right of occupation under the Family Law Act 1996 does not have an _______.
overriding interest.
106
What must a buyer do to mitigate risks from non-owning occupiers?
Physically inspect the property and carefully read the Property Information Form.
107
summary of key principles of title to land
Unregistered title involves proving ownership by the production of documentary evidence
of title which goes back at least 15 years and shows an unbroken chain of ownership from
the root of title to the current seller.
* The root of title is a document that:
o is at least 15 years old at the date of the contract
o deals with the whole legal and equitable interest in the property
o contains an adequate description of the property, and
o does nothing to cast doubt on the title.
* The most common unregistered title deeds are:
o conveyance on sale
o deed of gift
o mortgage deed, and
o assent.
* Title to unregistered land passes on legal completion.
* The system of land registration was introduced by the LRA 1925, now repealed and
replaced by the LRA 2002.
* Unregistered title is compulsorily registerable when a transaction which triggers first
registration takes place.
* The whole of England and Wales became compulsorily registerable on 1 December 1990,
meaning that it is necessary to make an application for first registration of an unregistered
title on the happening of a triggering event.
* The main transactions which trigger first registration are: a conveyance on sale of freehold land
o an assent
o a deed of gift
o a grant of a lease for a term of more than 7 years, and
o an assignment on sale of a lease having an unexpired term exceeding 7 years.
* A landowner holding an unregistered title can choose to register the title by making an
application for voluntary registration.
* Title to registered land passes on registration at HM Land Registry.
* HM Land Registry only registers legal estates and is not concerned with the beneficial
interest.
* When a register of title is created, it contains the following:
o header section – which includes the title number
o property register
o proprietorship register – which includes the class of title
o charges register, and
o title plan.
* On registration, HM Land Registry investigates title and allocates a class of title dependent
on the documentation produced. The most common classes of title are:
o absolute freehold title
o qualified title
o possessory title
o absolute leasehold title, and
o good leasehold title.
* It is possible to upgrade to title absolute in certain circumstances.
* The following types of estates can be substantively registered at HM Land Registry,
meaning that they are registered with their own register and title number:
o freehold estate
o a new lease that has more than 7 years to run when it is created
o an existing lease which has more than 7 years unexpired residue when it is assigned
o rent charges
o franchises, and
o profits à prendre in gross.
* Third-party rights in land are protected by notices or restrictions entered on an existing
register of title.
* The Form A restriction on the proprietorship register denotes a behind-the-scenes
beneficial interest, commonly that the beneficial interest is held by co-owners as tenants in
common.
* Overriding interests are a class of interest, created by the LRA 1925 and preserved by the
LRA 2002, which are capable of binding a buyer despite the fact they do not appear on the
register of title.
* A common overriding interest is that of a person in actual occupation of a property who has
rights in the property (for example due to contribution to the purchase price).
108
What is required for the creation of legal interests?
They must be created by deed.
## Footnote
Refer to 4.2 for basic formalities.
109
For a legal lease greater than 7 years, what are the requirements?
* Made by deed (LPA 1925 s 52(1))
* Registered (LRA 2002 s 27(2)(b)(i) for registered land; LRA 2002 s 4(1)(c) for unregistered land)
## Footnote
LPA stands for Law of Property Act and LRA for Land Registration Act.
110
What is required for a legal lease equal to or fewer than 7 years but greater than 3 years?
Must be by deed (LPA 1925 s 52(1))
## Footnote
This applies to specific lease lengths.
111
What types of leases exist for leases fewer than 3 years?
* Fixed term lease made by deed (LPA 1925 s 52(1))
* Periodic term lease (parole lease) which can be oral (LPA 1925 s 54(2))
## Footnote
Conditions for periodic term lease include possession of property and payment of market rent.
112
How can an equitable lease be created?
* By an agreement to create a legal lease
* Where parties attempted to create a legal lease but failed
* From a lease granted over an equitable estate
## Footnote
Equitable leases have specific requirements.
113
What are the requirements for an equitable lease?
* Must be in writing (LPMPA s 2(1))
* Must contain all agreed terms (LPMPA s 2(1))
* Must be signed by both parties (LPMPA s 2(1))
* Must be capable of specific performance (Walsh v Lonsdale)
## Footnote
LPMPA stands for Law of Property (Miscellaneous Provisions) Act.
114
What is the requirement for creating a legal mortgage?
* Created by deed (LPA 1925 s 52(1))
* Registered (LRA 2002 s 27(2)(f))
## Footnote
Legal mortgages have specific formalities.
115
What are the requirements for an equitable mortgage over a legal estate?
* Must contain all agreed terms
* Must be in writing
* Must be signed by both parties
## Footnote
Equitable mortgages have different requirements compared to those over an equitable estate.
116
What is required for an express legal easement?
* Created by deed (LPA 1925 s 52(1))
* Duration equivalent to a legal estate (LPA 1925 s 1(2)(a))
* Registered
## Footnote
Legal easements must comply with these formalities.
117
What are the requirements for express equitable easements?
* Must be in writing
* Must contain all agreed terms
* Must be signed by both parties (LPMPA s 2(1))
* Must be capable of specific performance (Walsh v Lonsdale)
## Footnote
Equitable easements must meet specific criteria.
118
What are the requirements for freehold restrictive covenants?
* Must be in writing
* Must be signed by the covenantor (LPA 1925 s 53(1)(a))
## Footnote
Freehold covenants are considered equitable interests.
119
What does a non-owning spouse or civil partner have under the Family Law Act 1996?
The right to register a right of occupation in the matrimonial home
## Footnote
This does not confer a beneficial interest in the land.
120
What must an estate contract include?
* Must be in writing
* Must contain all agreed terms
* Must be signed by both parties (LPMPA s 2(1))
* Must be capable of specific performance (Walsh v Lonsdale)
## Footnote
Estate contracts are crucial in property transactions.
121
What is a beneficial interest under a trust?
* Can be express or implied
* An express trust must be in writing and signed by the settlor
* An implied trust can arise without legal formality
## Footnote
Trusts are important in property law.
122
What binds a buyer of a legal estate?
They will purchase subject to any legal interests which subsist, irrespective of notice.
## Footnote
Legal interests are typically discoverable by checking deeds.
123
What is the difference in binding a buyer between legal and equitable interests?
Legal interests bind a buyer irrespective of notice; equitable interests bind only if the buyer had notice.
## Footnote
This distinction is crucial in property transactions.
124
What must most equitable rights on unregistered land titles be protected by?
Registration at the Land Charges Department
## Footnote
This is necessary to enforce against subsequent buyers.
125
What are the classes of land charges?
* Class C land charges (C(i), C(iii), C(iv))
* Class D land charges (D(ii), D(iii))
* Class F land charge
## Footnote
These classes relate to specific third-party rights.
126
What must a buyer do to take free of an equitable interest?
Show they are 'equity's darling' by being a bona fide purchaser for value of a legal estate without notice.
## Footnote
This doctrine is essential in property law.
127
What are the three types of notice?
* Actual notice
* Constructive notice
* Imputed notice
## Footnote
Each type impacts the enforceability of equitable interests.
128
What is actual notice?
The purchaser actually knows of the interest (LPA 1925 s 199(1)(ii)(a)).
## Footnote
This is one of the forms of notice.
129
What is constructive notice?
A purchaser will have constructive notice of all interests reasonably discoverable by inspection of the property.
## Footnote
This includes a duty to inquire about potential interests.
130
What is imputed notice?
Notice received by the purchaser's agent; if the agent has actual or constructive notice, the purchaser will be held to have imputed knowledge (LPA 1925 s 199(1)(ii)(b)).
## Footnote
This highlights the importance of the purchaser's representation.
131
What is imputed knowledge in relation to land purchase?
If the agent has actual or constructive notice, the purchaser will be held to have imputed knowledge.
132
What is the doctrine of notice?
It is relevant to a small number of equitable interests in unregistered land created before 1926.
133
Who is considered 'equity's darling'?
A bona fide purchaser of a legal estate for value without notice.
134
What are some equitable interests a buyer may be bound by if not 'equity's darling'?
* Beneficial interests under a trust
* Equitable easements and restrictive covenants excluded from the Land Charges Act 1972
* Interests arising by estoppel.
135
How are third-party interests in registered land protected?
By a notice or restriction on the register of an existing title.
136
What is required for a legal lease of more than 7 years to be enforceable against a buyer?
* For registered land: lease must be registered
* For unregistered land: it will be a legal interest automatically enforceable.
137
How are equitable leases protected in registered land?
An equitable lease must be registered as a notice on the charges register.
138
What happens if an equitable lease is not registered in registered land?
A buyer for valuable consideration will not be bound by the equitable lease.
139
What is an overriding interest in relation to equitable leases?
If the lessee is in actual occupation, the buyer may be bound unless specified conditions apply.
140
What constitutes notice for an equitable lease in unregistered land?
Registration as a Class C(iv) land charge.
141
What is required for a legal mortgage to bind a buyer in registered land?
It must be registered as a notice on the charges register.
142
What must a first legal mortgage be in unregistered land?
In writing and will bind the world.
143
What is required for an equitable mortgage in registered land?
It must be registered on the charges register.
144
What is the requirement for express legal easements in registered land?
They must be registered to bind a buyer.
145
What is an implied legal easement in registered land?
An overriding interest capable of binding a buyer despite not being on the register.
146
What must an express equitable easement do to bind a buyer in registered land?
It must be registered as a notice on the charges register.
147
What happens if an express equitable easement is not registered in registered land?
A buyer for valuable consideration will not be bound.
148
What must a freehold restrictive covenant do to bind a buyer in registered land?
It must be registered as a notice on the charges register.
149
What is the status of matrimonial home rights in registered land?
They must be registered on the charges register to bind a buyer.
150
What is required for estate contracts in registered land to bind a buyer?
They must be registered as a notice on the charges register.
151
How must a beneficial interest under a trust be protected in registered land?
It must be entered as a restriction on the proprietorship register.
152
What is the effect of overreaching on a beneficial interest under a trust?
It transfers the interest from the land to the sale proceeds.
153
What happens if the purchase price is paid to only one trustee?
There is no overreaching, and the buyer may be bound by the doctrine of notice.
154
What does Section 34(2) of the Law of Property Act 1925 impose when land is purchased by co-owners?
It imposes a trust of land.
155
Does the trust of land arise automatically for co-owners under Section 34(2) of the LPA 1925?
Yes, it arises automatically.
156
What is the significance of the trust of land in relation to legal and equitable titles?
It separates the legal and equitable titles.
157
Who holds the legal title in a trust of land according to TLATA s 1?
The trustees hold the legal title on trust for the beneficiaries in equity.
158
Can the same parties hold both the legal estate and beneficial interest in a trust of land?
Often, but not always.
159
What happens if those holding the legal estate have no beneficial interest in the property?
The trustees hold the legal estate on a bare trust for the benefit of the beneficiaries.
160
What does TLATA stand for?
Trusts of Land and Appointment of Trustees Act
161
What does TLATA impose automatically in co-ownership situations?
A trust of land
162
What is required for an express trust according to Section 53 of the LPA 1925?
It must be in writing and signed by the parties
163
What is the document called that outlines an express trust?
Declaration of trust or trust deed
164
What type of legal estate can be held according to Section 1(6) of the LPA 1925?
Joint tenancy
165
What is the maximum number of trustees for the legal estate?
Four
166
What must all trustees of the legal estate be?
Of full age (18 years or over) and have full mental capacity
167
What happens if more than four parties acquire the property?
The first four named on the purchase deed will hold the legal title on trust
168
Can the legal estate be severed to create a tenancy in common?
No
169
What can the equitable interest in the property be held as?
Joint tenants or tenants in common
170
What are the four unities required for a joint tenancy?
* Unity of possession
* Unity of interest
* Unity of time
* Unity of title
171
What distinguishes a joint tenancy from a tenancy in common?
Joint tenants have no identifiable share, while tenants in common have identifiable shares
172
What is a classic situation where parties might choose to hold as tenants in common?
When they have contributed to the purchase price in unequal shares
173
What does a declaration of trust specify?
Entitlement to sale proceeds in proportion to contributions
174
What happens if there is no express declaration of trust and co-owners cannot agree?
A court will look at evidence or course of dealings to decide on beneficial interest
175
What do words like 'to be divided between' suggest in property ownership?
Tenancy in common
176
What is the presumption in commercial situations regarding tenancy?
Presumption of a tenancy in common
177
What presumption arises in a domestic situation like a husband and wife?
Presumption of a joint tenancy in equity
178
What is the right of survivorship?
Joint tenants' interest passes automatically to surviving joint tenant upon death
179
How does a tenancy in common handle the interest of a deceased co-owner?
It passes according to the terms of their will or intestacy rules
180
What is severance in relation to joint tenancy?
Converting a joint tenancy in equity to a tenancy in common
181
What are the three possible modes of severance?
* Written notice
* Act operating on own share
* Mutual agreement or course of conduct
182
What must be included in a written notice for severance?
Irrevocable intention to sever immediately
183
What is overreaching?
Legal mechanism transferring interest from land to sale proceeds
184
What must a solicitor ensure when acting for a buyer of land?
A second trustee is appointed to overreach the beneficial interest
185
What does Section 14 of TLATA allow?
Any person with an interest to apply to the court for an order related to the trust
186
What factors does Section 15 of TLATA consider in court applications?
* Intentions of creators of the trust
* Purposes for which property is held
* Welfare of any minor occupants
* Interests of secured creditors
187
How is a new trustee appointed according to TLATA and the Trustee Act 1925?
By deed or written directions from willing beneficiaries
188
What is necessary for a valid receipt for purchase money?
A minimum of two trustees
189
Summary of co-ownership and trusts
When two or more people purchase a property, a co-ownership situation arises.
* The legal estate can be held by a maximum of four people of sound mind aged 18 or over.
* Whenever land is co-owned, a trust of land is automatically imposed by TLATA, which
separates the legal and equitable title to the land between the trustees and the
beneficiaries.
* The legal estate can only be held as a joint tenancy and cannot be severed.
* For a joint tenancy in equity to be created, the four unities must be present:
o unity of possession
o unity of interest
o unity of time, and
o unity of title.
* An express declaration as to beneficial ownership (for example, in a transfer or declaration
of trust) prevails over any presumption of joint tenancy or tenancy in common.
* Commercial situations raise a presumption of tenancy in common.
* Domestic situations raise a presumption of joint tenancy.
* Joint tenants do not hold a distinct share in the property and the surviving joint tenants take
the interest of a deceased joint tenant by virtue of the doctrine of survivorship.
* Tenants in common hold a distinct share in the land (which can be equal or unequal) and
there is no right of survivorship.
* Severance is the means by which a joint tenancy in equity is “converted” into a tenancy in
common.
* A joint tenancy can never be severed at law.
* Possible methods of severance in equity are:
o written notice
o an act operating on own share
o mutual agreement, and
o course of conduct.
* A buyer from a surviving tenant in common must pay the purchase money to two or more
trustees to overreach the beneficial interest.
* Overreaching is the legal mechanism by which the interest of the beneficiary is transferred
from the land to the sale proceeds.
* If co-owners cannot agree how or when to dispose of a property, there are wide powers
under TLATA s 14 to apply to court.
* Section 15 of the TLATA sets out the factors which the court must consider in determining
an application under s 14.
* A new trustee cannot be appointed under s 14, but this can be done by existing trustees.
190
What is an easement?
A right which benefits one piece of land exercised over land owned by another.
191
What is the land that benefits from the easement called?
Dominant tenement.
192
What is the land over which the easement is granted called?
Servient tenement.
193
What are the two types of easements?
* Positive easement
* Negative easement
194
Define a positive easement.
Allows the owner of the dominant land to exercise a right over the servient land.
195
Define a negative easement.
Limits what the owner of the servient land can do on their own land.
196
What case must be recognized for assessing easements?
Re Ellenborough Park [1956] Ch 131.
197
What is the first criterion for a right to be capable of being an easement?
There must be a dominant tenement and a servient tenement.
198
What does it mean for an easement to 'accommodate the dominant tenement'?
It must benefit the dominant tenement by making the use of the land more convenient or improving it.
199
What is required regarding the ownership of dominant and servient tenements?
They must be owned by different parties.
200
What does 'capable of lying in grant' mean?
The right must be capable of being the subject matter of a deed.
201
Fill in the blank: A legal easement must be created for the duration of the subject _______ or leasehold.
[freehold]
202
What are the two elements required for an implied grant or reservation of an easement?
* Necessity
* Common intention
203
What does the rule in Wheeldon v Burrows (1879) state?
An easement will be granted by implication if certain conditions are met regarding prior ownership.
204
What does LPA 1925 s 62 allow?
It can convert quasi-easements into full easements upon sale.
205
How can an easement be acquired by prescription?
* At common law
* By the doctrine of lost modern grant
* Under s 2 of the Prescription Act 1832
206
What is required for the user to acquire an easement by prescription?
User must be for at least 20 years and as of right.
207
What distinguishes a legal easement from an equitable easement?
Legal easements must meet specific criteria including being created by deed and registered.
208
What happens to an easement if the ownership of the dominant land changes?
The benefit passes to the successor in title.
209
What must happen for an equitable easement to be enforceable against successors?
It should be protected by a notice on the charges register of the servient tenement.
210
What does extinguishment of an easement mean?
Bringing an easement to an end.
211
How can an easement be extinguished by implied release?
If it has been abandoned and not used for many years.
212
What is a covenant?
A promise to do or not to do something, usually contained in a deed.
213
What are the parties involved in a covenant called?
* Covenantor (burden)
* Covenantee (benefit)
214
What is the significance of a transfer of part in relation to covenants?
It allows landowners to restrict the use of sold land while retaining control over the remaining land.
215
What is the key difference between enforcing positive and restrictive covenants?
Positive covenants require an act to comply, while restrictive covenants do not.
216
How can successors in title enforce a covenant?
If the benefit passes and the burden passes to successors in title.
217
What is the first step in assessing the enforceability of a covenant?
Determine whether it is a restrictive or positive covenant.
218
What must be established for a restrictive covenant to pass to successors in title?
It must touch and concern the land.
219
What type of covenant is defined as not allowing the land to be used for anything other than a grazing paddock?
Restrictive covenant
## Footnote
A covenant that restricts the use of the land.
220
What is necessary for the enforceability of a covenant between A and B?
Privity of contract
## Footnote
This legal principle ensures that only parties to a contract can enforce its terms.
221
What must be considered when determining the enforceability of a covenant in law and equity?
Both law and equity
## Footnote
The answers may differ based on the legal framework applied.
222
Under common law, what are the conditions for the benefit of a restrictive covenant to pass to successors in title?
Yes, if:
* the covenant touches and concerns the land
* it was intended to run with the land
* the covenantee held the legal estate when it was made
* the assignee now holds the legal estate.
223
Under equity, how can the benefit of a restrictive covenant pass to successors?
Yes, by:
* annexation
* express assignment
* building scheme.
224
Can the burden of a restrictive covenant pass to successors in title under common law?
No
## Footnote
Common law does not allow the burden to pass.
225
Under equity, what conditions allow the burden of a restrictive covenant to pass to successors?
Yes, if:
* the covenant is negative in nature
* the covenantee owned the benefitting land when the covenant was made
* the burden was intended to run with the land
* the general equitable rules apply.
226
What conclusion can be drawn regarding the ability of C to sue D for breach of a covenant originally made between A and B?
The benefit and burden can run in equity
## Footnote
This allows C to sue D for breach.
227
What is an attractive remedy for breaches of covenants?
Injunction
## Footnote
An injunction prevents or remedies the breach.
228
What distinguishes an injunction from damages in legal remedies?
Injunction is discretionary; damages are monetary
## Footnote
Courts have discretion to grant injunctions even if legal requirements are met.
229
What must be recognized in an assessment regarding the passing of covenants?
The passing at common law of those covenants which have not passed in equity
## Footnote
This is crucial for legal assessments.
230
What is required for the express assignment of the benefit of a restrictive covenant?
It must be transferred in writing
## Footnote
LPA 1925 s 136 mandates written notice to the covenantor.
231
What are the criteria for an implied assignment of the benefit of a restrictive covenant?
It must:
* touch and concern the benefitting land
* be intended to run with the legal estate
* have the original covenantee holding the legal estate when created
* have the assignee now holding the legal estate.
232
What must a party show to claim the benefit of a restrictive covenant in equity?
They must show that they have obtained the benefit in equity.
## Footnote
It is insufficient to demonstrate that the benefit passed at common law.
233
What does annexation in the context of a restrictive covenant mean?
It means that the party claiming the benefit can demonstrate that the benefit of the covenant is intended to attach to the land.
## Footnote
This is often indicated by the use of the words 'for the benefit of ...'.
234
What is required for the assignment of a restrictive covenant's benefit?
It must be transferred by express assignment in writing and signed by the parties.
## Footnote
The assignment must be noted expressly in the transfer deed.
235
What is a scheme of development in relation to restrictive covenants?
A situation where a landowner or developer subdivides land and creates covenants that bind all plot owners.
## Footnote
These covenants are enforceable by and against all buyers of the plots.
236
What are the requirements for a scheme of development as established in Elliston v Reacher?
* The benefitting and burdened land must derive title from one seller
* The original seller must divide the land and intend the restrictive covenants to apply to all plots
* All of the plots take the burden of the covenant for the benefit of all other plots
* The benefitting and burdened land must be purchased based on this scheme
* The scheme must be defined by reference to a plan.
237
What is a negative covenant?
A covenant that can be complied with without the need to take any action.
## Footnote
For example, it does not require spending money.
238
What are the three elements required for a covenant to accommodate the benefitting tenement?
* The original covenantee had an estate in the benefitting tenement at the time of creation
* The covenant touches and concerns the benefitting land
* The dominant and servient tenements must be 'sufficiently proximate'.
239
What does it mean for a covenant to 'touch and concern' the benefitting land?
It means that the covenant must benefit the land itself and not be a merely personal right.
240
What is necessary to establish the original parties' intention for the burden of a restrictive covenant to pass?
The express wording of the deed creating the restrictive covenant should be considered.
## Footnote
This intention can also be implied by LPA 1925 s 79.
241
What is required for a notice of a restrictive covenant on registered land?
The notice must be registered on the charges register of the land taking the burden of the covenant.
242
What is the status of the burden of a positive covenant at common law and in equity?
The burden does not run with the land at common law or in equity.
243
What is the mutual benefit and burden rule as established in Halsall v Brizell?
If a party takes the benefit of a covenant, they must also accept the burden.
## Footnote
For example, using a shared garage implies responsibility for its maintenance costs.
244
What is the primary method to enforce positive covenants?
Pursue the original covenantor.
## Footnote
The original covenantor remains liable for breaches at common law.
245
What is an indemnity covenant in the context of enforcing positive covenants?
An indemnity covenant from each successive successor in title offsets the liability of the original covenantor.
246
What is a restriction under LRA 2002 s 40?
A restriction placed on the proprietorship register of servient land to ensure compliance before registration can occur.
247
What is a commonhold scheme?
A form of freehold ownership that allows for mechanisms to deal with positive obligations of shared services.
## Footnote
This is rarely used in practice.
248
What is a right of re-entry coupled with a rent charge?
A legal interest in land requiring periodic payments to enforce positive obligations on freehold housing estates.
249
What must be done to protect a freehold covenant?
A notice must be entered on the charges register of the burdened freehold if the title is registered.
250
How can freehold covenants be extinguished or modified?
* By express agreement between owners
* By implied agreement
* By court declaration
* By application to the Lands Chamber of the Upper Tribunal.
251
What is a mortgage?
A proprietary interest in land given by the mortgagor as security for a loan.
252
What is required for a legal mortgage to be valid?
It must be created by deed and in writing to comply with LPMPA s 2.
253
What happens if a mortgage is created over unregistered land?
The creation of the mortgage triggers registration of the affected land.
254
What are the enforcement options available for a legal mortgage?
* Debt action
* Foreclosure
* Appointing a receiver
* Right to take possession
* Power of sale.
255
What is foreclosure in the context of a legal mortgage?
An equitable remedy where the lender takes possession of the property in satisfaction of the outstanding debt.
256
What triggers the power of sale in a legal mortgage?
The first payment of capital due under the mortgage deed.
257
When does the power of sale arise under a mortgage deed?
The power of sale arises as soon as the first payment of capital is due under the mortgage deed.
258
What conditions must be satisfied for a legal mortgagee to exercise the power of sale?
* Interest payments are more than 2 months in arrears
* There has been a written request for repayment of the capital and 3 months have passed without payment
* There is a breach of some other term of the mortgage
259
What is required of a lender when exercising the power of sale?
The lender must ensure that a 'proper' price is obtained for the property.
260
What does obtaining a 'proper' price for the property entail?
It entails obtaining the true market value and more than one independent valuation of the property.
261
How must a lender conduct the sale of a property under the power of sale?
The lender must sell in good faith, advertise the property for sale, and obtain independent valuation advice.
262
What is the typical method of sale for a property under the power of sale?
The property is generally sold at auction.
263
What happens to surplus sale proceeds after a property is sold under the power of sale?
The lender will hold the surplus on trust for any second or subsequent mortgage and then the borrower.
264
What rights does an equitable mortgagee have?
* To sue for the debt
* To take possession
* To foreclose
* To sell
* To appoint a receiver
265
What is the priority of mortgages in registered land?
First in time takes priority, meaning that the first mortgage appearing on the charges register is paid in full before any second or subsequent mortgages.
266
How does the priority of mortgages work in unregistered land?
The first mortgage takes priority over any second or subsequent mortgages.
267
What happens if a borrower defaults on a first legal charge?
The lender will be able to repossess and sell the property without concern for subsequent mortgages.
268
What must a lender do if a borrower defaults on a second or subsequent legal charge?
The lender must redeem all mortgages taking priority over it.
269
What interest might a third party have in property subject to a mortgage?
A third party may have an interest such as a tenant or co-owner.
270
When does a legal tenancy bind a mortgagee?
A legal tenancy of unregistered land binds a mortgagee if it was created before the loan.
271
What happens if an equitable tenancy of unregistered land is not registered?
It will not bind a mortgagee.
272
What do most mortgage deeds prevent regarding tenancy?
They prevent the creation of a tenancy by the borrower without the lender’s consent.
273
What is a potential issue when a borrower takes a loan for purposes other than purchasing the property?
The lender must ensure the risks of consenting to the mortgage over the matrimonial home are fully explained to the non-owning spouse.
274
What can give a non-owning spouse an overriding interest in the land?
If they have rights in the land and are in occupation.
275
What must lenders do if non-owning occupiers are revealed?
They must require them to sign a consent form to vacate in the event of repossession.
276
What can happen if undue influence is established regarding a mortgage?
The mortgage could be set aside.
277
Key principles of proprietary rights
Easements
* An easement is a right benefiting one piece of land that is enjoyed over the land of another.
* The requirements for an easement were laid down in Re Ellenborough Park [1956] Ch 131:
o there must be a dominant and servient tenement
o the easement must accommodate the dominant tenement
o both pieces of land must be in separate ownership, and
o the right must be capable of reasonably exact description.
* An easement may be created in various ways:
o by express grant reservation
o by implication, such as necessity
o under the rule in Wheeldon v Burrows (1879) 12 Ch D 31 (grant only)
o under LPA 1925 s 62, and
o by prescription (long use).
* An easement can be legal or equitable.
* An easement can be extinguished, although abandonment is difficult to prove.
4.5.5.2 Freehold covenants
* A covenant is a promise made by one party for the benefit of another, which is usually
contained in a deed.
* A covenant will always be enforceable between the original contracting parties due to the
doctrine of privity of contract.
* Successor covenantees will only be able to enforce the covenants if the benefit enjoyed by
the predecessor covenantees passes and if the burden agreed to by predecessor
covenantors passes to successor covenantors because there is no longer privity of
contract between the parties.
* The burden of a freehold covenant is unlikely to pass at common law; the only exception is
the mutual benefit and burden rule.
* The burden of a (restrictive) covenant will pass in equity provided that the requirements of
Tulk v Moxhay [1843-60] All ER Rep 9 are met:
o the covenant is negative in substance
o the covenant must accommodate the benefitting tenement
o the original parties intended the burden to pass, and
o the covenant has been registered on the charges register or as a D(ii) land charge.
* The burden of a freehold covenant will pass in equity if:
o the covenant touches and concerns the benefitting tenement, and
o the covenantee’s successor-in-title became entitled to the benefit of the covenant
either by annexation, assignment or a scheme of development.
* A freehold covenant can only be an equitable interest so must be protected to bind a
successor.
* A notice must have been entered on the charges register of the burdened freehold if the
title is registered or registered as a D(ii) land charge if the title is unregistered.
* Freehold covenants can be extinguished or modified by:
o express agreement
o implied agreement, and
o under LPA 1925 s 84.
4.5.5.3 Mortgages
* A mortgage is a proprietary interest in land given by the mortgagor (the landowner) as
security for a loan.
* The mortgagor receives a loan in return for giving the mortgagee (often a bank) security
over the land.
* A legal mortgage must be created by deed and must be protected by registration.
* A first legal mortgage of unregistered land will be protected by deposit of the title deeds.
* A second charge of unregistered land will be protected by registration of a C(i) land charge.
* A legal mortgage can be enforced through:
o debt action
o foreclosure
o appointing a receiver
o right to take possession, and
o power of sale.
* An equitable mortgage can be enforced as above but an equitable mortgagee does not
have any statutory power to convey or transfer the legal estate.
* If there is more than one mortgage, a legal mortgage of registered land must be repaid in
full before any other mortgages.
* Lenders must ensure that consent to a mortgage by a co-owner is not obtained as a result
of undue influence otherwise the mortgage will be set aside
278
What is a lease?
A lease is one of the two legal estates that can exist in land, the other being freehold.
279
What are the three types of leasehold estate?
* A tenancy with a known start and end date
* A periodic tenancy that renews automatically at the end of a specified period
* A tenancy at will that can be terminated at any time
280
What is privity of contract?
The general principle that only the parties to the contract can enforce its terms for the entire duration of the contract.
281
What is privity of estate?
It exists when two persons have a relationship of landlord and tenant.
282
What does the Landlord and Tenant (Covenants) Act 1995 (LTCA) address?
The enforceability of leasehold covenants.
283
What distinguishes an 'old' lease from a 'new' lease?
'Old' leases are dated before 1 January 1996, while 'new' leases are dated on or after that date.
284
What is the landlord's obligation when selling the freehold reversion under LTCA?
The landlord remains bound by landlord covenants of a lease dated on or after 1 January 1996 and must obtain an indemnity from the incoming buyer.
285
What is an Authorised Guarantee Agreement?
An agreement where the outgoing tenant guarantees the performance of the incoming tenant for a specified period.
286
What is the key distinction between a lease and a licence?
A lease is an interest in land granting the tenant the right to exclude others, while a licence is merely a personal permission to use the land.
287
What are the requirements for a lease as established in Street v Mountford?
* Exclusive legal possession of defined premises
* For a term certain
* Rent (not strictly required anymore)
288
What is exclusive possession in the context of a lease?
The tenant's right to exclude anyone from the property, including the landlord.
289
What are the two types of lease term?
* Fixed term
* Periodic term
290
What is the significance of a break clause in a lease?
It allows either the landlord or tenant to terminate the lease early in a specific way and at a specific time.
291
What is the formal requirement for a legal lease for more than 7 years?
Must be created by deed and registered at HM Land Registry.
292
What is a short lease and its creation requirements?
A lease for less than 3 years that does not need to be by deed; must be created in writing or orally if certain conditions are met.
293
What is the definition of 'demised premises'?
The property that is the subject of the lease, often described by its postal address.
294
What does 'security of tenure' refer to in leasehold terms?
The tenant's right to remain in the demised premises at the end of the term.
295
What is a service charge in the context of leasehold agreements?
Payment for shared services like utilities, collected by the landlord or management company.
296
What is forfeiture in leasehold contexts?
The landlord's right to bring the lease to an end in the event of tenant default.
297
What is peaceable re-entry?
The act of forfeiting a commercial lease by changing locks and retaking possession, typically requiring an express provision in the lease.
298
What is the landlord's express covenant for quiet enjoyment?
The obligation not to interfere with the tenant's enjoyment of the property.
299
What are implied covenants for landlords?
Covenants regarding repairs and fitness of residential accommodation for occupation.
300
What is the purpose of a landlord's covenant to insure?
To insure and recover the insurance premium from the tenant by way of insurance rent.
301
What is the significance of enforcing covenants against other tenants?
The landlord may need to covenant to enforce obligations against other tenants in case of default due to lack of privity of contract.
302
What are implied covenants that a landlord may be subject to?
Covenants regarding repairs and fitness of residential accommodation for occupation pursuant to s 11 of the Landlord and Tenant Act 1985.
303
What is an implied covenant regarding quiet enjoyment?
If not expressly included in the lease, it will be an implied covenant imposed on the landlord.
304
What is typically included in a tenant's express covenants?
* Payment of rent
* Repair obligations
* Use of the demised premises
* Alteration of the demised premises
* Alienation
305
What does a lease specify regarding payment of rent?
The amount of rent payable by the tenant and when it is payable, including other payments as rent.
306
What can happen if a landlord wants to increase the rent during the lease term?
A provision for a rent review must be included in the lease.
307
What does a tenant covenant regarding repair?
The tenant usually covenants to repair the demised premises as defined in the lease.
308
What restrictions might a lease impose on the use of demised premises?
It may specify permissible uses, often linked to the Town and Country Planning Act 1990.
309
What are the two ways a lease may govern alterations to the demised premises?
* Qualified alterations covenant (non-structural alterations with landlord's consent)
* Absolute bar on alterations (prohibiting structural alterations entirely)
310
What does alienation refer to in the context of a lease?
The sale, mortgaging, or sub-letting of all or part of the demised premises.
311
What is an absolute covenant against assignment?
It contains a total bar to assignment and is relatively rare.
312
What is a qualified covenant against assignment?
It prohibits assignment unless the landlord gives prior written consent and/or certain conditions are met.
313
What does s 19 of the Landlord and Tenant Act 1927 state about qualified covenants against assignment?
The landlord's consent may not be unreasonably withheld.
314
What is the purpose of the Landlord and Tenant Act 1988 s 1 regarding consent to assignment?
It requires the landlord to respond to a tenant's request for consent within a reasonable time.
315
What are some implied covenants in favor of the tenant?
* Obligation to pay rent
* Obligation to pay taxes
* Obligation to treat the demised premises in a 'tenant-like manner'
316
What remedies are available to landlords for non-payment of rent?
* Commercial rent arrears recovery
* Forfeiture
* Debt action
* Guarantors and/or rent deposit
* Other breaches (damages or specific performance)
317
What is commercial rent arrears recovery?
A statutory procedure allowing landlords to recover rent arrears by taking control of the tenant's goods.
318
What is forfeiture in the context of a lease?
The right of the landlord to re-enter the premises and bring the lease to an early end due to tenant default.
319
What must a landlord do before forfeiting a lease for breaches other than rent arrears?
Serve a notice under the LPA 1925 s 146, allowing reasonable time for rectification of the breach.
320
What is the main remedy available to a tenant against a landlord's breach?
Damages, aimed at compensating the tenant for losses incurred due to the landlord's breach.
321
Define security of tenure.
The right of a tenant to stay in business premises at the end of the tenancy.
322
What does the Landlord and Tenant Act 1954 (Pt II) provide for business tenants?
Protection at the contractual end of their lease, requiring a landlord to follow statutory methods to terminate.
323
What are the ways a tenancy protected by the LTA 1954 can end?
* Forfeiture by landlord
* Surrender
* Valid s 25 notice by landlord
* s 26 notice by tenant
* Tenant vacates and/or serves a s 27 notice.
324
What are the statutory time limits related to notices under the LTA 1954?
Strict statutory time limits apply to serving ss 25 or 26 notices, which must be in a prescribed format.
325
What happens if the landlord and tenant cannot agree on the lease terms?
A court application will settle the matter between the parties.
## Footnote
This applies to both ending the lease and terms for a new tenancy.
326
What is a landlord’s unopposed s 25 notice?
It informs the tenant that the landlord does not oppose the grant of a new lease and states the terms on which that lease will be granted.
## Footnote
The tenant can then counter-propose terms.
327
What does a landlord’s opposed s 25 notice require?
It informs the tenant that the landlord requires the premises back at the end of the contractual term or if the tenant is holding over, providing 6 to 12 months’ notice and specifying statutory grounds for opposition.
## Footnote
This is pursuant to LTA 1954 s 30.
328
What must a tenant’s s 26 notice request?
It must request that the landlord grant a new lease to the tenant and outline the required terms.
## Footnote
The notice must be served on the tenant’s competent landlord or agent.
329
What are the statutory grounds for a landlord to oppose a new lease?
* Tenant’s failure to carry out repairing obligations
* Tenant’s persistent delaying paying rent
* Tenant’s substantial breaches of other obligations
* Suitable alternative accommodation is available for the tenant
* On sub-letting of part, the landlord requires the whole property for subsequent letting
* The landlord intends to demolish or reconstruct the premises
* The landlord intends to occupy the holding
330
Which grounds for opposition are discretionary?
Grounds (a), (b), (c), and (e) are discretionary.
## Footnote
Even if established, the court may still order a new tenancy.
331
Which grounds for opposition are mandatory?
Grounds (d), (f), and (g) are mandatory.
## Footnote
If established, the court must refuse to order a new tenancy.
332
What compensation rights does a tenant have if the landlord establishes no fault grounds?
The tenant has a right to compensation upon quitting the premises.
## Footnote
This is because the tenant is denied a tenancy through no fault of their own.
333
What happens if the landlord establishes fault grounds?
The tenant has no right to compensation.
## Footnote
This applies if the landlord proves grounds (a), (b), or (c).
334
What is the statutory formula used for calculating tenant compensation?
The amount of compensation is calculated using a statutory formula.
## Footnote
The right to compensation can be excluded by agreement.
335
Under what conditions can a new lease be negotiated after a court order?
The new lease will be negotiated between the landlord’s and tenant’s solicitors if the landlord fails to establish an opposition ground or does not oppose the tenant’s application.
336
What are the maximum fixed term lengths for a new lease ordered by a court?
The maximum fixed term the court can order is 15 years.
337
What are some tenancies to which the LTA 1954 does not apply?
* Agricultural tenancies
* Fixed-term tenancies not exceeding 6 months
* Contracted out tenancies
338
What does contracting out of the LTA 1954 entail?
It is an agreement to exclude the LTA 1954 security of tenure provisions from the tenancy.
## Footnote
This requires satisfying three statutory requirements.
339
What is the first statutory requirement for contracting out?
The landlord must serve a 'health warning' notice explaining the exclusion of security of tenure.
## Footnote
This should ideally be served at least 14 days before the tenant commits to the lease.
340
What is the second statutory requirement for contracting out?
The tenant must serve a declaration confirming understanding of the health warning.
## Footnote
If the health warning is served less than 14 days before committing, a formal statutory declaration is required.
341
What is the third statutory requirement for contracting out?
The lease must reference the health warning, tenant’s declaration, and agreement to contract out.
342
What happens if the contracting out procedure is not followed?
The contracting out will be rendered void, and the tenancy will be protected under the LTA 1954.
343
Tenants S26 notice
Tenant’s s 26 notice
A tenant’s s 26 notice must be served on the tenant’s “competent landlord” or agent and
request that the landlord grant a new lease to the tenant (and outline the required terms). Upon
receipt of this notice, the landlord has 2 months during which to inform the tenant whether they
intend to oppose the request. If the landlord is unwilling to agree to a new lease, they must
specify the statutory grounds for opposition which are:
(a) (b) (c) (d) (e) (f) (g) the tenant’s failure to carry out repairing obligations
the tenant’s persistent delaying paying rent
the tenant’s substantial breaches of other obligations
suitable alternative accommodation is available for the tenant
on sub-letting of part, the landlord requires the whole property for subsequent letting
the landlord intends to demolish or reconstruct the premises, and
the landlord intends to occupy the holding.
Grounds (a), (b), (c) and (e) are discretionary – even if the landlord establishes the ground, the
court may decide to order a new tenancy in any event.
Grounds (d), (f) and (g) are mandatory – if the landlord establishes the grounds, the court must
refuse to order a new tenancy.
344
summary of key principles of leases
A lease is one of the two legal estates that can exist in land.
* If a lease is created for more than 7 years, it is registrable at HM Land Registry.
* There are three types of leasehold estate:
o tenancy for a term of years
o periodic tenancy, and
o tenancy at will.
* Privity of contract exists between the parties to a contract (lease).
* Privity of estate exists when two persons have a relationship of landlord and tenant
between them.
* Under a new lease (dated on or after 1 January 1996), the landlord remains liable for
leasehold covenants on sale of the freehold reversion (unless they obtain an express
release or use the procedure for statutory release under the LTCA).
* Under an old lease (dated before 1 January 1996), the tenant remains liable for the tenant
covenants throughout the term of the lease, even after assignment.
* Under a new lease, the original tenant is relieved from liability unless the landlord is
entitled to insist on an Authorised Guarantee Agreement.
* A lease is a proprietary interest in land.
* A licence is merely a personal right.
* The requirements of a valid lease are set out in Street v Mountford [1985] AC 809:
o exclusive possession
o of defined premises
o for a term, and
o at a rent.
* A legal lease for more than 7 years must be created by deed and substantively registered
at HM Land Registry.
* A legal lease for 3–7 years must be created by deed but is not substantively registrable at
HM Land Registry.
* A legal lease for less than 3 years does not have to be by deed, provided that:
o it is at the best rent
o it takes effect in possession, and
o no fine is payable by the tenant.
* An equitable lease might arise if the formalities to create a legal lease have not been
followed.
* A landlord’s express covenants include:
o quiet enjoyment
o to insure, and
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o enforcement of other covenants.
* A landlord’s implied covenants include:
o quiet enjoyment, and
o repair.
* A tenant’s express covenants include:
o to pay rent
o to repair
o alterations
o use, and
o alienation (assignment, underletting and/or charging).
* A landlord’s remedies for non-payment of rent include:
o debt action (including statutory demands)
o taking possession of goods (commercial rent arrears recovery statutory procedure)
o forfeiture, and
o deduction from tenant’s deposit/claim against guarantor.
* A landlord’s remedies for other breaches include:
o injunction
o forfeiture
o self-help
o specific performance, and
o damages.
* A tenant’s remedies for a landlord’s breaches include:
o injunction
o specific performance
o damages, and
o self-help (unless expressly excluded from the lease).
* Security of tenure – a business tenant of commercial premises might have the right to
remain in the premises at the end of the term under the LTA 1954. A tenancy protected by
the LTA 1954 will automatically continue at the end of term unless it is brought to an end
by:
o forfeiture by the landlord
o surrender
o the landlord serves a s 25 notice
o the tenant serves a s 26 notice, or
o the tenant vacating and/or serving a s 27 notice.
The LTA 1954 does not apply to fixed-term tenancies not exceeding 6 months or
contracted out tenancies. There is a statutory procedure which must be followed for the
landlord and tenant to agree at the beginning of the tenancy to contract out of the
provisions of the LTA 1954, meaning that the tenant will not enjoy security of tenure at the
end of the term.
