Land Law Flashcards
(223 cards)
1
Q
Real property
A
Genrally considered to be immoveable
land itself & third-party rights in the land
2
Q
Personal property
A
Anything that can be moved
3
Q
Who owns mines and minerals?
A
coal, natural gas, oil beneath belong to the crown
fracking is included as a mine or mineral
4
Q
Who owns airspace?
A
The owner of land extends rights to heigh as is necessary for ordinay use and enjoyment
5
Q
‘What is the importance of ‘corporeal hereditaments’?
A
Extent of real property - actual budilings on the land, tangible items (plants, animals, water and fixtures)
6
Q
What are important distinctions when deciding the extent of land?
A
Plants, trees, flowers attached to the land
Dead aminals foudn on the land - not wild animals alive on the land
Water passing/ flowing not part of land (rights to take water but not great volumes without permission)
7
Q
What are incorporeal hereditaments?
A
Not physical form:
rights of way, rights of light or receiving rent from land
8
Q
What is a fixture? When is something likely to be a fixture?
A
Form part of the land and transferred with that land automatically when it is sold.
removed by demolition = fixture
9
Q
What is a chattel?
A
Personal possessions and have no connection or fixture with the land.
Remain in possession of the owner and removed when the land is sold.
10
Q
What is the test to determine between a fixture and a chattel?
A
- Degree of annexation - detatching the object woudl cause significant damage = fixture.
rests on own weight = chattel
- Purpose of annexation - intention to be permanent = fixture
mere convenience/ creating temporary improvement = chattel
11
Q
What is tenure?
A
to hold - relationship between land owner and the crown (crown holds tensure of land)
12
Q
What are the types of ownership?
A
Legal - name on title, right to sell/ transfer (leasehold/ freehold)
Equitable - right to benefit from the land (right to take money e.g rent)
13
Q
What are the formal requirements of a deed?
A
- Clear on its face it was intended to be a deed
- Validly executed as a deed by the parties that are subject to it
Legal estate - registered with HM Land registry to be valid
14
Q
What are the legal interests in land?
A
Easements
Legal Mortgages
Rentcharge (paid by landowner to third party with no other interest)
Rights of Entry (e.g take or resume possession if in breach of lease)
15
Q
How are legal interests created/ disposed?
A
Deed which meets requirements
Registered with HM Land Registry
16
Q
When is an equitable interest created? What are common types?
A
Failure to comply with deed requirements
- restrictive covenants (building scheme)
- beneficial interest under a trust
- estate contracts
Legal right is not created properly it will only be an equitable right!!
17
Q
What is a building scheme?
A
All subject to the same restrictive covenant
every property both dominant and servient land
mutual enforcement between land owners
18
Q
What are the ways an equitable interest can be imposed by law?
A
constructive trust and resulting trusts (applied by court due to actions)
proprietary estoppel (defence to stop taking advantage of misbelief/ going back on a promise)
basic principle - override legal ownership
19
Q
What is a constructive trust?
A
Someone contributes substantially to the mortgage/ pays for substantial improvements
Must increase value/ change structure of the property
Words/ actions that show a common intention - preferred claim over PE.
20
Q
What is a resulting trust?
A
Someone contributed to the purchase price but is not the legal owner
21
Q
3 requirements
What is proprietary estoppel?
A
Prevents a party going back on a promise or taking advantage of anothers misbelief of legal rights in the land:
promise was made
reliance upon the promise
acted in detriment
22
Q
What is an estate contract?
A
Parties to a conveyance exchange contracts - transaction is legally binding
Consrtructive trust is created to give the new owner equitabel interest to aquire property on completion
23
Q
How is ownership of unregsitered land proven?
A
Title deeds/ good root of title
Title deeds - single or series of documents
Root of title - 15 years
24
Q
What is good root of title?
A
Full legal and equitable ownership
Recognisable description/ plan
Not cast any doubt
25
What are the classes of title granted by HM?
Absolute title - the best class, guarantee to the landowner against any other person trying to claim legal interest
Possessory title - cannot produce sufficient documents/ missing docs
Qualfiied title - specific defect in the title (on register)
Good leasehold - first registration fo leasehold but freehold not registered
26
When can a possessory title be upgraded?
Finds missing documents or stays in possession for 12 years with no claim against their ownerhship
27
What is the Land Charges Register?
Registration of equitable interests in unreigstered land
| will bind future purchasers if registered (must have notice)
28
When are legal and equitable tights binding in unregistered land?
Legal rights are binding
Equitable rights only binding if registered at Land Charges Register
| ER binds anyone expect a purchaser who pays money and has no noitce
29
Principle of legal rights in unreigstered land
Will automatically bind all future owners if contained in the title deeds
| Legal easements, Legal mortage, Rent charge, Rights of entry
30
What is the exception to legal rights 'bind the world'
Puisne mortgage - second mortgage of unregsitered land where title deeds are retained by first mortgageee so a land charges registration protects second mortgagee's interest in the land
| Only binding if registered as a land charge
31
2 categories of equitable rights
regsitered as a land charge
overriding
32
What is overriding interest?
Rights that bind any current/ future purchaser even if not included on title deeds/ charges register.
* Easements and profits
* Short-term legal leases
* Interests of persons in actual occupation
e.g contributed to purchase price - constructive trust
| Only way to discover by making enquiries/ visitng property
33
What is a class A land charge?
Financial charges created by statute (rent charged by landlord)
Application must be made to secure the charge
34
What is a class B land charge?
Financial charges created by statute but no application is needed - applied automatically (costs of legal aid)
35
What are class C land charges?
* Puisne mortgage
* Limited owners charge - someone with ownership under a settlement has spent money on a property
* General equitable charge
* Estate Contract
36
What are Class D land charges?
* Inland revenue charge - unpaid IHT
* Restricitve Covenant
* Equitable easement
| RC is most commin in unregistered land
37
What is a class E land charge?
Annuities created before 1st January 1926 and not on the annuitie register
## Footnote
Increasingly unlikely to see these
38
What are class F land charges?
Family Law Act 1996 -
Statutory home rights of occupation in the marriage/ civil partnership home
39
When will an equitable right created prior to 1 January 1926 be binding on a purchaser?
If a purchaser had prior notice
| Only rights created after 1 jan 1926 can be registered
40
What is the effect of a registered land charge?
Interest will be binding on any future landowner whether they check the land charges register or not
UNLESS gifted/ trasnferred for no payment in return
41
When can an unreigistered equitable interest be binding?
Purchaser does not meet the criteria of doctrine of notice
| The purchaser failed to take steps/ make enquiries to find out
42
When does the doctrine of notice apply?
The equitable right is not in classes A-F (cannot be reisgtered as a land charge) AND
Purchaser is a bona fide purchaser for value of the legal estate without notice'
- good faith (no misrep/ fraud)
- purhcase of legal freehold/ leasehold
- any value (inc below market value)
= NOT BOUND
| DOES NOT APPLY to gifts/ inherited land
## Footnote
if overreaching fails a purchaser could rely on this doctrine
43
What are the types of notice?
* Actual - purchaser is aware (not casual conversations/ rumours)
* Constructive - should have known if reasonable enquiries made (title deeds/ physical inspection & enquiries)
* Imputed - extends constructive notice to an agent
| Agent - any third party/ solictor instructed to deal with the purchase
44
What is overreaching?
Defence mechanism to avoid buying land with equitable interest
Equitable interest is taken out of the land and transferred to the sale proceeds or who they were paid to (individual)
Removes any claim against the future owner (not bound)
| The claimant (ER holder) must take action against the seller
45
When does overreaching apply?
Non-commerical / cannot be registered as a land charge
Trusts of land*(seperate legal and equitable ownership)
46
What is the criteria for overreaching?
* Interest capable of being overreached (e.g payment towards purchase price)
* Conveyance to purchaser of legal estate
* Pay money to at least 2 legal owners/ trustees or trust corp
| Applies to interests not registrable as a land charge
47
What is advisable when dealing with the sale of unregistered land?
Sole legal owner should appoint a second trustee
| Overreaching will apply (purhcaser not bound by unknown interests)
48
How do you work through a question on equitable interest in unregistered land?
STEP 1: Is the right registrable as a land charge?
YES - must be registered to be binding. (not registered = void even if purchaser knew)
NO ...
STEP 2: Has the purhcase money been paid to 2 owners or 2 trustees?
YES - Overreaching will apply (purchaser not bound)
NO....
STEP 3: Doctrine of notice - is the purhcaser a bona fide purchaser for value without notice?
NO - interest willl be binding
YES...
STEP 4: Did the purhcaser act in good faith and make reasonable enquires
YES - overreaching will apply
NO - interest will be binding
49
What are the 3 parts of the HM Land Register?
Property register - leasehold/ freehold, description of property, rights benefitting
Proprietorship register - name & address, restrictions, burdens on estate/ owner
Charges register - notices of interests which burden the land and are protected by registration, details of any legal charges
50
What are the categories of rights that can effect land?
* Substantively registrable estates (legal esates)
* Registrable dispositions
* Other- third party interests capable of protection (on the register
* unregistered interests which override
51
What does substantively registered mean?
Legal estates that have a unique title number generated on first registration
52
What happens if there is a failure to substantively regsiter a legal estate?
Transfer is void
Seller will hold the land on bare trust:
*property will still be owned by the legal owner but the new owner is entitled to the benefit (equitable interest only) - 18 or over
53
What are triggering events?
When first registration must be made:
* Transfer of land: sale, gift, inheritance, court order
* Grant of lease more than 7 years (or takes effect more than 3 months after)
* Creation of a protected first legal mortgage
54
What are registrable dispositions?
Once the estate has been created (leasehold/ freehold) any future dealing is a RD *must be registered to be protected *
* Any transfer of freehold/ leasehold
* Grant of a lease for more than 7 years
* Grant or reservation of a new legal easement
* Grant of a new or subsequent legal mortgage
| failure to register = purhaser will acquire equitable interest only
55
What happens if a registrable dispositon is not registered?
New owner acquires equitable interest only
Either:
* Have the right to acquire legal title once registration is complete
* Have the right to benefit (e.g proceeds from sale)
| Legal interest will not be protected
56
What is a third party interest?
Landowner grants a benefit/ right to someone who is not a legal owner (legal or equitable)
Must be recorded on the register of title to be enforceable
| E.g right of way or agreement to maintain boundaries
## Footnote
broad scope - any party not just rights held by the owner
57
What is the first stept to deciding if an interets is binding?
Third party interest or overriding interest?
58
what is a notice & where do you register a notice?
Outlines the burden (obligation) of a third party interest in the legal estate
Charges register
59
What is a restriction & where do you regsiter a restricton?
A disposition of the land can only happen if the terms of the restriction are complied with
Proprietorshop register
60
Which third party interests need to be reigistered by notice?
* Estate contracts
* Freehold restrictive covenants
* Equitable leases
* Equitable easements and profits (created post 2003)
* Home rights
* Equitable mortgages
61
What third party interests need to be registerd by a restriction
* Leasehold restrictive covenants
* Trusts of land (trust deed)
62
What are the categories of overriding interests?
* Easements and profits
* Short term legal leases
* Interests of persons in actual occupation
63
Under what circumstances can an easements and profits be overriding interests?
| Profits - right to take something from the land
* Any easement which was overriding pre 13 October 2003 (no matter how created) will continue
* Any new legal easement impliedly created by S62 LPA 1925
* Any new legal easement created under W v B
* Any new legal easement created by necessity, common intenton or prescription
64
When will an easement NOT be an overriding interest?
* Not within actual knowledge of new purchaser
* It would not have been obvious on a reasonbly careful inspection of the land
* Not been exercised in the last 12 months
| Equitable easements cannot be overriding (Pre 13 Oct 2003 - if cond met)
65
When will a short-term lease be an overriding interest?
* 7 years or less
* Legal leases only
| Equitable leases must be registered to be binding
66
When can persons in actual occupation have overriding interests?
**proprietary interest and actual occupation**
* living in the property but not legal owner
* required physical presence
* continuous and permanent - clear intenton to return
Must have moved into the property before claiming PIAO interest
| Short absence will not effect e.g hospital
67
When will persons in occupation NOT have an overriding interest?
* Enquiry was made about the interest and it was not disclosed when it was reasonble to do so
* Occupation was obvious on reasonable inspection
* Purchaser knew about the interest even if the occupation was not obvious on reasonable inspection
68
What interests in land are expressly excluded from being proprietary interests?
* Interests under Settled Land Act
* Legal leases taking effect 3 months from date of grant (must be registered)
* Home rights under Family Law Act
| Any other interests will be a qualifying interest for a PIAO
69
What must a person in actual occupation at the same time as the legal owner sign?
an express agreement to waive their rights in the property in favour of the mortagee
| In case there is a default on th payment
70
What are the two types of life estates?
| Right to use/ occupy during somebody's lifetime
fee simple simple in absolute remainder
fee simple in absolute reversion
| Equitable interests in trusts
## Footnote
fixed term = usually death
71
What is a life tenant? What can they do?
Receives benefit of a life interest (as long as they live)
- right to use
- right to occupy
- right to generate income
- sell/ transfer (with permission)
| Fixed term ended (death) - back to legal owner or another agreed person
## Footnote
Usually granted by will/ trust deed
72
What are the rules on passing the estate on death of a life tenant?
Cannot leave property in a will
UNLESS the original estate owner (who granted the life interest) died before
original owner is still alive - reverts back to them OR a specified agreed person
73
What is a fee simple in absolute reversion?
Estate owner grants a life interest to a third party (this is the fee simplie in reversion)
This life tenant dies absolute possession transfers back to the original owner
| Can be by implication (no agreement what should happen after death)
74
What is a fee simple in absolute remainder?
A future interest in the land
estate owner can grant a life estate
upon death the life tennat the property will pass to a another person specified by the original owner
75
What is a determinable fee simple?
Specific but unpredictable event - (not sure when it will actually happen)
Specified at the time of the original transfer
Terminates ownership of the freehold legal estate automatically
| NOT DEATH - this is predictable / certain
76
What is a conditional fee simple?
Requires a condition to be complied with throughout ownership
non-compliance = NOT terminated automactially - up to original owner
| break conditon = lose right to ownership
77
How is a freehold estate transferred?
* By deed - must be clearly intended/ validly executed by parties subject to it
* Registered at HM Land Registy
| Registration not complied with = equitable interesrt only
78
What is the description/ criteria for a freehold estate?
fee simple in absolute possession
fee simple - right to use / enjoy, sell, trasnfer, grant mortgage, grant a leasehold, leave in will
absolute - ownership is not conditional
in possession - entitled to immediate possession, right to receive rent
79
difference between freehold and leasehold
freehold - indefinite duration
leasehold - fixed length of time
80
What are other words for a lease?
leasehold / demise/ term of years absolute
## Footnote
lessee - another word for tenant
81
What is freehold reversion
When a landlord/ lessor/ freeholder creates a leasehold estate out of their freehold estate they will still retain legal interest
82
What is the condition of a sublease?
Must be for a shorter duration than the original lease
## Footnote
head-lease - another word for orginal lease
83
What are the types of lease?
Fixed term lease - cannot last indefintely, must be an agreed maximum term at the START of the agreement
Periodic tenancy - may last indefinitely, week to week, month to month (continually renewed) only ended when either the landlord or tenant gives notice to the other.
| period tenancy = no legal interest in the land
84
How is a legal lease created?
Deed
| Not a valid deed = equitable lease only
85
What leases must be registered at the Land Registry?
Over 7 years
| Under 7 years = overidding interest if deed requirements met
86
When does a lease not need to be created by deed?
3 years or less
87
What can a leasehold homeowner do with the land?
Carry out any regsitrable disposition during the term of the lease
88
What tenancy do leasehold students have?
Periodic tenancy
89
What are the characteristics of a lease?
* Exclsuive possesion
* Fixed duration/ term
* At a rent (no longer necessary)
* Correct formalities (by deed & signed
| Not created by deed & signed = equitable lease only
## Footnote
Actual occupaton - Street V Mountford
90
What is exclusive possession?
Right to control the use of the property:
Can decide who enters and exclude persons - even the landlord
91
What is a licence?
Permission to stay in the property for a fixed term
No interest granted in the land - must vacate at end of term
No exclusive possession
| Only have exclusive occupation
92
When will an implied leasehold covenant not apply?
Specific clause to say it will not apply
93
What are the landlord implied covenants?
* Quiet enjoyment - allow tenant to enjoy occupation of the property without interference (does not apply to issues already existing before tenancy)
* Non-derogation from grant - if the tenancy is granted for a specific purpose, the landlord cannot undermine that
* Repair - tenant owns leasehold estate = likely repair obligations implied against the landlord not tenant OR split between landlord and tenant
| common that repair obligations split in long leases: repair and payment
94
What are the tenant implied covenants?
Paying rent and taxes - implied tenant will pay rent of required (usually express term)
Repairing - tenant should not do anything that could significantly reduce the value of the land
Not committing waste - tenant cannot do anything on the land which would permanently change it
| Does not need to be rent for a lease to exist
95
What happens if there is breach of covenant between the original landlord and tenant?
Privity of contract will apply - parties to the original contract can sue/ be sued if there is a breach
96
What are successors in tile bound by?
Privity of estate - rights and duties between who currently has the estates of land at that time (and must comply with covenants)
can sue the successor in title under this principle
| e.g freehold/ leasehold was sold to another person
97
What covenants are binding on successors in title of the freehold estate for leases granted pre 1996?
Privity of contract will apply
Covenants always enforceable but ONLY those which touch and concern the land are enforcebale
The tenant can try to make the new landlord pay but if they won't can't the original landlord will be liable
| personal covenants no longer enforceable
98
How does an original landlord protect themselves from a breach of covenant from a new landlord? (pre 1996)
| new landlord - person who bought the freehold estate
Obtain an indemnity from the new landlord that they will repay any costs arising from breach
| if the new landlord cannot pay - original landlord bears the cost
99
How did the law change on enforcement of covenants for successors in title of the freehold estate post 1996?
* landlord write to tenant asking to be released from liability
* tenant agrees/ no reply in 4 weeks = released from ongoing liability
| No longer bound by covenants
100
How does the law enforce covenants on successors in title of the leasehold estate pre 1996?
Privity of estate - can sue the new successor in title (tenant) under this principle
If this fails can still sue the old tenant under privity of contract
| e.g freehold/ leasehold was sold to another
101
How did the law change on enforcement of covenants for successors in title of the leashold estate post 1996?
Liability is automatically removed from the old tenant UNLESS it has been excluded in the assignment
102
What is an alienation covenant? When is it used?
Prevent a tenant from assigning/ subletting property
Used in a block of flats/ commerical premises
| if breached - landlord can seek remedy to remove right
103
What remedies are available to the landlord?
* Action for debt/ damages
* Injunction
* Specific performance (court reluctant to use)
* Forfeiture - landlord terminantes the lease
104
When can a lanlord claim forfeiture for non payment of rent?
* Made a formal demand unless there is an exemption in the lease OR rent is in arrears 6 months +
* Forfeiture clause is in the lease
satisfied = re-enter forcefully or apply to CC for repossession
105
How can a tenant stop forefeiture for non payment of rent?
* Pays rent within 5 days of the hearing
* Pays arrears in full = granted automatic relief
106
How can the court prevent forfeiture from non payment of rent?
Stop proceedings for 4 or more weeks
107
When can a landlord claim forfeiture for any other breach of covenant?
* Forfeiture clause in the lease
* Considered if the breach is remediable (if it is must serve a notice)
108
What happens if a breach of a covenant is remediable by the tenant?
Remedied = right to forfeiture is lost
Not remedied = application to court for forfeiture
109
What happens if the breach of a covenant is not remediable by the tenant?
Landlord must serve a notice
Must wait 14 days before making an application to court for forfeiture
110
How can a tenant stop forfeuiture for breach of covenant?
* Can show the court they remedied the breach
* Can persuade the court the lease should continue
111
What remedies are available to the tenant?
* Damages
* Injunction (stop continuing or carrying out anticipated breach)
* Specific performance
* Recoup the costs of repairs from future rent - MUST GIVE NOTICE specifying repairs before witholding
112
How can a lease be ended?
* Expiration (end of fixed term)
* Forfeiture
* Surrender - completed by deed to show consent
* Merger - apply to purchase freehold reversion & merge freehold/ leasehold title
113
What rights can be classed as easements?
* rights of way over neighbouring property
* right to water through a pipe crossing neighbouring land
* right of support from an adjoining building
* right to hang a sign on another's property
* right to enter neighboring land to repair your own
* right to use swimming pool/ recreational facilties
114
What is the criteria to determine if a right qualifies as an easement?
| Re Ellenborough Park
1. Must be dominant (benefits) and servient (burdens) land
2. An easement must accomodate the dominant land
3. The dominant and servient owners must be different people
4. The right claimed must be capable of forming the subject matter of a grant
115
When will an easement accomodate dominant land?
The right must benefit the land itself and not the owner personally (not just more covenient)
* not dependant on specific characteristics/ identity of the dominant owner
* 2 pieces of land should be close (not need to be adjacent)
* not purely recreational (not as important)
| recreational - granted but cannot incur cost to servient owner
116
What question helps determine if an easement will accomodate?
Does the rght claimed increase the value of the land or its saleability?
117
What is the exception to dominant and servient owners being different people?
Tenant has an easement to reach their front door in a block of flats but the landlord still owns both pieces of land
118
How will a right claimed be capable of forming the subject matter of a grant?
1. Easement clearly defined (no ambiguity)
2. Must be a grantor and grantee
3. Must be like existing easements (nothing new/ novel)
119
When will an easement be clearly defined/ free from ambiguity?
Clear enough to be described in a deed
must be *disctinctly specified*
120
When will there be a sufficient grantor/ grantee of an easement?
Grantor - must have the power to do so (legal owner)
Grantee - suitable defined persons (not too wide)
121
What factors should be considered to determine if a right is like existing forms of easements?
1. Caution considering novel rights - no new negative easements
2. Must not be too extensive (ouster principle)
3. No positive burden on servient owner
122
How do the courts exercise caution when considering novel rights?
cannot be too vague/ uncertain (TV signal case)
people benefitting must be clearly identified
| *like existing forms of easements
123
What is a negative easement?
a right enjoyed without any action of the dominant owner:
* Rights of support (prevent removal of structures)
* Rights of light (prevent building that restricts light)
| Court will not recognise any new negative easement
## Footnote
* like existing forms of easements
124
When will storage/ parking be considered an easement?
Dominant owner (benefitting) does not store too much or completely deprive the landowner control of their land - amounts to occupation of the land
Does not restrict reasonable enjoyment/ use - can exercise the easement and room for other uses (substantial interference test)
* tenant can store coal in landlord's shed
| not too extensive - ouster principle
125
What must an easement NOT do?
Put no positive burden on the servient (burdened) owner:
*cannot force a servient owner to act e.g enter contract with third party or spend money
| * like existing forms of easements
126
How can an easement be created?
* expressly - grant/ reservation
* impliedly
* by prescription
* by statute
127
What is a reservation?
The land owner sells the land and reserves a right to use the land for a specified purpose e.g still use driveway
(Continued access after sale)
| express = deeed & must be clear wording
128
How can an easement be impliedly granted into a deed?
* by necessity
* by common intention
* Wheeldon V Burrows rule
* operation of S62 LPA 1925
129
When will an easement be impliedly granted by necessity?
If without it the land would be landlocked/ completely inaccessibile
No other way of accessing
e.g rights of suppport/ rights of way
130
When will an easement by granted by common intention?
commonly intended for use of the land but the easement was not included in the deed
131
In what situation would an easement under Wheeldon V Burrows arise?
Landowner sells part of their own land to someone else
Transfer would impliedly contain all the rights the original landowner enjoyed/ exercised
| Purpose - allow grant of all quasi-easements
## Footnote
only applies to grants
132
What is a quasi-easement?
The use of land would have been an easement if the land had not been in the ownership of one person
133
What is the criteria for a right to be an easement under Wheeldon V Burrows?
1. quasi-easement
2. used immediately prior to transfer of the land
3. must be continuous and apparent (obvious)
4. necessary for reasonable enjoyment of the property
134
How does S62 LPA 1925 grant an easement?
Turns a licence granted to a tenant by a landlord to an easement when the land is sold / lease is renewed
e.g use of a shed - easement of storage
| (automatically included in a new legal deed)
## Footnote
only applies to grants
135
What is the criteria for S62 LPA 1925 to apply?
* Conveyance of land (some deed of the legal estate)
* The right claimed must be capable of being an easement
* The conveyance must not contain contrary intention of the parties (exclude S62)
* Two pieces of land must be in seperate ownership
* Right must be continous and apparent - used once month
136
How can an easement be impliedly reserved into a deed?
* Reservation by necessity
* Reservation by common intention
137
What is 'non-derogation from grant'?
A person cannot grant something then hold back the rights that would make the grant useful
e.g selling a house and not allowing use of the chimney
138
What does an implied reservation by necessity apply?
The land is landlocked without it (completely inaccessible) = necessary for use
* rights of support
* rights of way
139
When does a reservation of common intention apply?
Not necessary but commonly intended between the parties
Omitted from the deed
140
When is an easement granted by prescription?
Acquired by long use:
* Enjoyed without interruption for 20 years (does not depend on the conditions)
* Enjoyed without interruption for 40 years (inc oral agreement)
141
What are the conditions for a 20 year easement to be granted by prescription?
* The user be 'as of right' : without force/ objections, without secrecy, without permission (no licence/ payment fee)
* Freehold owner against another freehold owner (cannot claim over landlord/ third party)
* Use is continuous (once a month is ok)
142
What is the first step to determining if a covenant is enforceable against future owners?
Positive or negative?
positive - usually require money to be spent
negative - restricts future use of the land
143
Who is the covenantor/ covenantee?
Covenantor - bound to carry out the promise
Covenantee - makes/ enforces the covenant
144
How is the burden of a covenant enforced in law between the original parties?
Privity of contract: parties can sue for non-compliance of a covenant
145
What is the principle of duality?
For a covenant to be enforceable in both the burden and the benefit must pass to the current owners of that land
benefit passed to C
burden passed to D
| Applies to law and equity
146
What is the law on the passing of covenants between a successor in title? (burden)
Any covenant (positive or negative) cannot run with the land
| **Restrictive - Consider if the covenant has run in equity
147
What is the exception to the common law rule on covenants?
The doctrine of mutual burden and benefit:
land owner enjoys benefits, but with these benefits come burdens, can ONLY take the benefit if you bear the burden
e.g can use a comon space if kept clean
148
How can the benefit of a covenant in law pass between successors in title?
* By express assignment S36- original covennatee assigns at the same time as trasnfer of land
* By contracts act - third party is identified by name
* S52 - third party was indentified at the time the covenant was made
149
What conditions must be met for the benefit of the covenant to run in law?
1. Covenant must touch and concern the land
2. Original covenantee must hold legal estate in benefitted land
3. Successor must obtain their title from or under the original covenantee - (can ownership be tracked back to the original convenantee?)
4. The benefit of the covenant must have been intended to run with the land
150
What does touch and concern' the land mean?
Benefit will pass to a successor in title if it benefits the land and not the owner personally
- affects the way the land is used?
- affects its value?
- specific person?
151
What does 'obtain title from original convenantee' mean?
| passing benefit of covenants in law
Pre 1925 - require successor in title to hold the same legal estate as the original owner
Post 1925 - can be a leasehold or freehold mix
152
What are the ways the benefit of the convenant can be 'intended to run with the land' in law?
* Express annexation
* Implied annexation
* S78 LPA
| annexation - attach the benefit to the land
153
What is express annexation?
* words in a deed
* covenant will benefit a specific piece of land
* intended to pass to successive owners
all satisfied = benefit will automatically pass
154
What is implied annexation?
The benefit of a covenant will pass if the indentity of the land is sufficiently clear
| Used rarely
155
What is statutory annexation under S78 LPA 1925?
Every covenant which touches/ concerns the land will automatically be annexed to that land
The benefit will automatically pass in equity
156
What is the rule on restrictive covenants in equity?
Only the burden of restrictive covenants can pass in equity
You cannot force a successor in title to carry out a positive obligation
| BURDEN OF A POSITIVE COVENANT CANNOT PASS
157
What are the conditions for the burden of a restricitve covenant to pass in equity?
1. Covenant must be negative/ restrictive
2. At the date of the covenant the covenantee retained land which benefitted
3. Covenant must touch and concern the land
4. The burden of the covenant must be intended to run with the land
158
When will the burden of a covenant NOT automatically be 'intended to run with the land' in equity?
Specified it cannot run with the land in the deed
Deed was before 1925 - must be specific wording
159
What are the conditions for the benefit of covenants to pass in equity?
1. Must touch and concern the land
2. Successor must hold a legal or equitable estate
3. Benefit was intended to run with the land
160
How can the benefit of a covenant be 'intended to run with the land' in equity?
Annexation:
- Express - words in a deed
- Implied - identity of the land is clear
- Statutory annexation s78 - touch & concern the land = automatically intended to run with the land
Assignment:
- Express
- Implied
Part of a building scheme
| s78 is most likely method
161
What is assignment?
When the land is transferred - the benefit of the covenant is transferred to a certain person
| Words of assignment must be in the deed
162
What is the criteria for assignment - benefit to be 'intended to run with the land' in equity?
* Land must capable of benefitting
* It is possible to identify the land
* Assigment of the covenant must take place at the same time as transfer between owners
163
When will the chain of assignment (chain of idemnity) be broken?
If the deed excludes annexation without express assignment and the owner does not assign the covenant when the land is transferred = broken
| The deed/ transfer document must show assignment
164
When will a building scheme exist?
* Evidence of common intention between purchasers that the land will be sold in plots
* Clear intention that all purhcassers of the plots will be subject to mutual covenants
ONLY APPLIES TO PASSING OF THE BENEFIT IN EQUITY
| Covenants are for the mutual benefit of all homeowners
165
What is the statute law on the passing of covenants in registered land?
* The sucessor purchases for valuble consideration - market value (NO = bound by covenant)
* A notice has been registered against the title of burdened land (charges register)
166
What is the statute law on the passing of covenants in unregistered land?
* Pre Jan 1926 (no registration) - doctrine of notice applies
* Post Jan 1926 - registered as class D land charge against the original covenantor (registered as a notice on first registration)
167
How is a legal mortgage created?
* Formalities - deed & signed
* Registered on mortgagor's title deeds at HMLR = binding contract
168
How is a legal mortgage created?
* Mortgagor only holds equitbale interest in the land (e.g life interest under trust deed)
* Defective legal mortgage (defective deed/ failure to register)
| equitable interest - not freehold/ leasehold owner
169
What is the legal date of redemption?
6 months after the start of a mortgage when the mortgagor can repay in full
The mortgagee can not take any action before then to force payment
170
What is equity of redemption?
The rights a mortgagor holds
171
What is the equitable right to redeem?
The right of a mortgagor to repay their mortgage in full after the legal redemption date (after 6 months)
172
What is equity? (mortgages)
Difference between the amout of the mortgage and the value of the property
173
What is negative equity?
The amoiunt required to repay the mortgage in full is higher than the value of the property/ sale price
174
What is redemption?
The mortgagor pays of the balance owed to the mortgagee
(paid at the end of the mortgage term or ealier using proceeds of sale)
175
What are the rights under 'equity of redemption'?
Rights of the mortgagor:
* Equitable right to redeem (doctrine fo clogs and feathers)
* Protection under consumer protection legislation
* Protection from undue influence
176
What is the doctrine of 'clogs and feathers'?
Equitable right to redeem - protection from:
* Unfair conditions e.g a term which prevents the mortgagor full repaying
* Any term which changes the mortgagor/ mortgagee relationship
| Unfair terms - must be opporessive/ remove right to redeem
177
What is collateral advantage?
The mortgagee uses their strong bargaining position to agree mortgage terms more favourable to them
(Equity will only stop this if morally wrong - e.g last longer than the mortgage)
| e.g only buy insurance from mortgagee
178
How is a mortgagor protected under consumer protection legislation?
* Consumer Rights Act 2015 - unfair terms
* Finanacial Services and Markets Act 2000 - applies to mortgages after 31 Oct 2003 - mortgage contracts must be fair & transparent
* Consumer Credit Act 2006 - court intervention if m/m relationship is unfair
179
What is the consequence if there is undue influence to enter a mortgage?
Mortgage is set aside
Mortgagee must take reasonable steps to make all owners aware of the nature & consequnces
180
What are the types of undue influence?
* Presumed undue influence - influence over a vulnerable party who trusts the advice (solicitor-client)
* Actual undue influence - specific evidence to positively prove
181
What is the criteria a mortgagee can take to protect themselves if undue influence is established?
Etridge protocol:
1. Proof of undue influence?
2. Was the mortgagee aware of the relationship of the mortgagor and put on inquiry? (mortgagee is aware one party us acting as a gurantee for the other's debt and the loan is for the benefit of that party)
3. Did the mortgagee take reasonable steps to minimise risk of undue influence?
| Not put on inquiry - mortgagee can rebut undue influence claim
182
What steps can the mortgagee take if they are 'put on inquiry'?
| inquiry -mortgagee aware of the relationship
* Did the mortgagee advise a third party to take independent legal advice?
* Same solictor used by both parties - mortgagee ask if the party claiming undue influence wishes to instruct another solicitor?
* Mortgagee should provide solicitor with all relevant information: debts, purpse, amount, suspicions of UI
* Independent legal advice given by the solicitor to the party claiming UI
* Solicitor must provide mortgagee with evidence of advice
183
What are the rights and remedies available to the mortgagee?
* Right to payment
* Right to possession
* Power of sale
* Appointing a receiver
* Foreclosure
| Can be used singlularly or culmulatively
184
What is the right to payment?
Positives/ negatives?
Breach of contract = sue
Mortgagor cannot pay - property sold - mortgagee can continue to sue the mortgagor (even if shortfall and negative equity)
| negative equity - property worth less than the mortgage
185
What mortgagee remedies are usually used in conjunction?
* Right to paymment
* Right to possession
* Power of sale
186
What is the time period for a mortgagee to recover a debt?
12 years to recover debt
6 years to recover interest
(fail in this time = statute barred in court)
187
Why would a mortgagee seek right to possession?
* In advance of seeking an order of sale (ensure vacant)
* Manage the property to generate income and pay debt (commercial property)
188
What limits are placed on a mortagee who seeks possession?
* Possession of land cannot be taken without an order of the court
* Mortggaor can show the coit they can repay the debts = delays possession proceedings
* Court can grant tempory relief to the mortgagor (does not apply properties in negative equity)
* Court can postpone possession if there is a connected person (spouse/ cohabitee - demonstrate they can repay the debts)
189
What will the court consider when postponing possession proceedings?
* How much mortgagor can afford to pay
* Difficulties to pay can be resolved quickly
* Reasons for arrears
* Contractual terms
190
When can the power of sale be exercised by a mortgagee?
1. Power of sale must arise
* Mortgage created by deed
* Legal date of redemption has passed
* No clause excluding power of sale
2. Conditons:
* Notice served and 3 months lapsed (no repayment) OR
* Some interest is in arrears and in arrears 2 months after due date OR
* Breach of a term in the mortgage
| legal date of redemption must have passed
## Footnote
No need to obtain court order
191
What obligations are on a mortgagee who wishes to exercise power of sale?
* Duty to act in good faith - honest sale to an unconnected person
* Obtain true market value
* Freedom to determine when and by which method (purchasers must have full information about the property)
192
What happens if a mortgagee fails to comply with obligations under power of sale?
* Mortgagor can seek a court order for the sale to be set aside
* Mortgagee pays any shortfall between price sold and price it could have been sold (compensate mortgagor)
193
What is 'appointing a receiver'?
Mortgagee appoints someone to take over the running of the property/ premises
| Commerical not residential
194
What is foreclosure?
Debt not paid, the whole of the property vests in the mortgagee and become registered proprietors of the property
completely extinguishes mortgagors equitable right of redemption
195
Why is foreclosure rarely used?
* Mortgagor does not have to pay the mortgagee any increase in value (even if it is now higher than the mortgage debt)
* Negative equity - mortgagee canot sue for any shortfall
196
What is the effect of the pre-action protocol (Nov 2008) on mortgages?
All mortgagees who hold a first legal charge over residential proeprties will have the priority charge shown in the title deeds
| Aim - reduce litigation/ set up payment plan
197
Under the pre-action protocol, what are the obligations on the mortagee who uses power of sale?
1. Repay any prior mortgages
2. Repay any costs/ expenses selling the property (solictor/ estate agent)
3. Repay sums owed to the mortgagee who sold the property (inc capital/ interest)
4. Pay any remaning sums to other mortgagees - (none = back to mortgagor)
198
What is the law on priority of mortgages in registered land?
Take precedent in the order of date registered NOT date created
| Important in negative equity
199
How is an equitable mortgage protected in unregistered land?
Notice in the title deeds - will take priority
200
How is an equitable mortgage protected in unregistered land?
Pre LP(MP)A 1989 - first mortgagee will have control of the title deeds
Post - LP(MP)A 1989 - Registration as a C class land charge to take priority (not reigstered as a charge = void)
201
What is tacking?
Lending further money under an original mortgage agreement
202
What issues arise when a mortgage is 'tacked'?
* Mortgagees with priority might not recover all the outstanding loan if they receive notice of a subsequent mortgage - (not aware/ not agree can still recover)
* Subsequent mortgagees may not recover all their oustanding loan if they do not check if the priority mortgagee granted any further advances
203
What is joint tenancy?
Both legal and equitable title are owned collectively as a whole by both owners
| Contributed unequal shares and there is an express declaration = JT
204
What is a tenancy in common?
Legal title is held collectively as a whole but the equitable title can be owned in equal/ unequal shares
205
When will a property be held as joint tenancy if the parties contributed unequal amounts?
Express declaration in the deed
206
How are the proceeds of sale split in a joint tenancy?
Split equally - even if the parties contributed unequal amounts
| Because both own legal/ equitable title
207
What are the four unities?
Requirements of a joint tenancy:
* Unity of possession - all owners able to use/ enoy the whole land collectively
* Unity of interest - co-owners must all hold the same interest estate in the land
* Unity of title - must have aquired title in the same way (same transaction/ doc)
* Unity of time - aquired interest at the same time
| Not satisfied - not express declaration = tenancy in comon only
208
What is the right of survivorship?
Applies to joint tenancy only - one co-owner dies, ownership automatically passes to the remaining owners
| Takes precedent over any gift in a will
209
What happens if joint tenants die at the same time?
The oldest is presumed to die first in law:
The youngest will take all ownershp (ROS) and pass under their will
210
What can NOT be owned as a tenancy in common?
Legal title = always held as joint tenants
(equitable title can be split in shares)
| legal title cannot be severed
211
What is the requirement of a joint tenancy?
Unity of possession - each co-owner must be able to use/ enjoy the whole of the land collectively
212
What happens if an owner in a joint tenancy dies?
* Legal title remains with the surviving owner
* A trust arises for the equitable shares
* The surviving owner holds these shares on trust for any beneficiaries (right to benefit)
* The surviving owner is the only one entitled to sell - beneficiaries must receive equitable shares from the sale
213
What is the maximum amount of legal title owners?
4
(If more then hold property on trust for themselves/ any other owners as joint tenants of the equitable shares)
214
How can a joint tenancy be severed?
1. Written notice
2. Operating on a party's own share
3. Mutal agreement
4. Mutual conduct
5. Forfeiture following unlawful killing
215
What are the conditions for severence of a tenancy in common by written notice?
* In writing
* Intention to sever must be immediate
* Evidence it has been delivered (does NOT need to be read by other owner)
| delivery of a letter will be sufficient (even if not read)
216
What does operating on a party's share mean?
A co-owner has done something to indicate they do not want to have an individual share
e.g sell/ give away equitable interest
| Legal interest remains the same - cannot be severed
217
What is the effect of a joint tenant selling/ giving away equitable interest?
Or mortgages equitable interest?
Or becomes bankrupt?
Sever the equitable interest only - the receiver will hold equitable interest as a tenant in common
Legal interest remains the same
All other co-owners remain under joint tenancy
218
What is the requirement for a joint tenancy to be severed by mutual agreement?
Must be a collctive agreement between all equitable joint tenants
Express or implied (not in writing)
| ONLY equitable share
219
What is the requirement for a joint tenancy to be severed by mutual conduct?
Must be a collctive agreement between all equitable joint tenants
Inconclusive negotiations/ physical division of land are NOT severance unless very clear intention all parties intended
| ONLY equitable share
220
When will survisorship not apply?
Forfeiture of unlawful killing
221
What is the outcome if the legal title owners make a declaration to have a % share as tenants in common?
Hold the trust property (legal title) on trust for each other
| Trust of land - agreements to separate legal and equitable onwership
222
What is S14 TOLATA 1996
Anyone with an interest in property is able to make an application to court to resolve the dispute:
* Other co- owners
* Mortgagees
* Trustees
* Trustee in bankruptcy (insolvency practitioner)
223
What is S15 TOLATA 1996?
List of factors for court to consider:
* Intention of parties who created the trust
* The purpose of the property subject to the trust - family home?
*Court will consider the purpose of the property at the time of APPLICATION to court *
* Welfare of any minor who occupies/ might reasonably occupy - older the child the less important
* Interests of a secured creditor of any beneficiary
