Land Law Statutes and Principles

Question 1

FSAP

Answer 1

Fee Simple Absolute in Possession

Question 2

Law of Property (miscellaneous Provisions) Act 1989, s. 2 (1989 Act): Formalities of the Contract

Answer 2

valid land contract s 2 in effect requires:
-Single document (or two identical)
-Containing all the terms
-Signed by both parties 
Then Need to be Registered

Question 3

Proprietary Estoppel Features

Answer 3

1) representation of property rights made to Claimant
2) Reliance by Claimant
3) Detriment suffered by claimant as a result

Question 4

Fixed Term

Answer 4

Lease is a predefined and certain period

Question 5

Periodic Tenancy

Answer 5

yearly, Monthly, weekly

Continues until ended by notice

Question 6

Leases Certainty

Answer 6

Leases must be certain. they must have a start date and an end date. See cases:
Harvey v Pratt
Prudential Assurance v London Residuary Body
Berrisford V Mexfield

Question 7

Legal Lease

Answer 7

Deed (unregistered land): s 52(1) LPA 1925
Registration (registered land): s 27(2) LRA 2002 (over 7 years) (4 (1)(c))
Under 7 years its unregistered overriding interest

Question 8

Equitable Lease

Answer 8

Should be protected by notice on register
Equitable because:
- L only has equitable estate
-Lacks Formalities
-Enters into a valid contract but never given legal lease (Walsh v Lonsdale)

Question 9

Lease Definition

Answer 9

a certain term that grants Exclusive Possession (the right to exclude the world)

Question 10

License

Answer 10

Personal Right that is granted to a single individual that is determinable whenever the grantor see’s fit

Question 11

Exclusive Possession

Answer 11

T’s right to control entry onto the land– right to exclude others/strangers including landlord. If the tenant does not have exclusive possession, they cannot have a lease.

Question 12

Lodger

Answer 12

The occupier is a lodger if the landlord provides attendance or services

Question 13

Written Terms that Bar exclusive Possession

Answer 13

Provision of Services – e.g. cleaning; Huwyler v Ruddy
Moving occupier to another room: Westminster v Clarke
Introducing other occupiers: Antoniades

Question 14

Multi Occupancy and a Lease

Answer 14

Joint Tenancy of the right to EP exists where the following ‘four unities’ exist: AG securities v Vaughn
-Possession - all joint tenants possess equally and together
-Interest - same period/obligations (rent) All derive the same benefit from the property
- Time - acquiring rights at same time from L
-Title - single rather than separate agreement with L
Mikeover v Brady
Stribling v Wickham

Question 15

Sham/Pretence

Answer 15

A term in a lease agreement that is not genuine but is only there in an attempt to create a contractual license rather than a lease.

Question 16

Forfeiture: Failure to pay

Answer 16

Non-payment of rent 212 Common Law Procedures Act 1852: If the Lessee is brought to court and he pays all rent and arrears together with costs; then the proceedings stop.

Question 17

Forfeiture: Breach of Covenant

Answer 17

Other Covenants: s 146 LPA 1925: Lessor must provide Notice of the breach; Time to Remedy the breach; Require the Lessee to make compensation for the breach.
Rugby school v Tannahill
Glass v Kencakes

Question 18

Legal Mortgage: Unregistered Land

Answer 18

LPA 1925, ss. 85(1) and 87 recognized two methods:

• Long lease (lease by demise); or
• Charge by deed by way of legal mortgage

Question 19

Legal Mortgage: Registered land

Answer 19

• Mortgage of registered land can only be by charge (property interest by specialist deed that creates the mortgage) LRA 2002 (s 23(1))
• And registration is essential to its validity: LRA 2002 ss. 27(2)(f), 93(1)(2)

Question 20

Equity of Redemption

Answer 20

Equity of redemption signifies all the residual right of ownership mortgagor enjoys, including:

• Right to get the property back in original state on repayment/discharge of debt
• That which can be sold or use to create a second mortgage

Question 21

Clogs and Fetter

Answer 21

Attempting to inhibit the payment or performance of the Mortgage:

1. Mortgage terms restricting/postponing mortgagor’s right to redeem
2. Terms giving mortgagee right to purchase
3. Terms giving mortgagee Solus Tie

Question 22

Restricting Postponing right to redeem Mortgage

Answer 22

A term in the Mortgage deed which prevents/postpones Mortgagor’s right to repay the debt and end the mortgage.
See Fairclough v Swan Brewery and Knightsbride v Byrne

Question 23

Term permitting purchase of land by mortgagee

Answer 23

An Option to purchase might be regarded as inserting into the mortgage deed something which is incompatible with the nature of mortgage and is an attempt to prevent L getting the property back in its original state and free from mortgagee’s rights
See Jones v Morgan
Samuel v Jarrah Timber
Warnborough v Garmite

Question 24

Collateral Advantages (Solus Ties)

Answer 24

Mortgagee stipulates for some additional benefit in return for Loan. Solus Tie is an exclusive supply agreement. To be Valid it must end when the Mortgage ends.
Noakes v Rice
Bradley v Carritt
Kreglinger v New Patagonia
Esso v Harper

Question 25

Protecting Mortgagor: Interest Rates

Answer 25

If the interest rate can be shown to be unconscionable not just unreasonable: Equity is concerned City holdings v Dabrah Paragon Finance v Nash Multiservice Bookbinding v Marden

Question 26

Protecting the Mortgagee: Possession

Answer 26

Right to possess is an inherent part of the loan.The Mortgagee wishes to obtain possession as a prelude to Sale. Potential purchasers will be attracted to vacant property, so the Mortgagee must obtain possession.

Question 27

Mortgagor Delaying Possession

Answer 27

1) Common Law: Court may allow mortgagor a short time to repay what is owed Bimringham v Caunt 2) Equity: possession will only be granted if the Mortgagee is seeking possession fairly and for a proper purpose. Quennel v Maltby 3) s. 36 Administration of Justice Act 1970

Question 28

Section 36 Administration of Justice Act 1970

Answer 28

Applies if property comprises (includes/consists) a dwelling house. 1) Discretion: If the Mortgagor is “likely” to be able to repay within a reasonable time than the court may exercise to help the mortgagor. Cheltenham & Gloucster v Norgan 2) If Mortgagor is in “positive equity” (value of the land is greater than the debt) they may want possession postponed under s 36 to allow them to sell. National and provincial building society v llyod 3) If Mortgagor is in “negative equity” the court may direct a sale under s 91(2) LPA 1925. Palk v Mortgage service fund

Question 29

Mortgagee Power of Sale

Answer 29

two pre-conditions must be met which act as operative safeguards for the Mortgagor: 1) The Power of Sale has arisen: LPA 1925 s101 - Mortgage by deed - Mortgage money due – date of redemption passed - No express provision-precluding sale 2) The Power is exercisable LPA 1925 s103 - Notice for repayment + then 3 months arrears; or 2 months arrears of interest; or other breach

Question 30

Co-Ownership

Answer 30

there is a maximum of 4 Legal Owners s 34(2) LPA

Question 31

Trustee

Answer 31

Legal Owner managers of the ownership for the benefit of the beneficiaries, the equitable owners.

Question 32

Express Trust

Answer 32

- Formal declaration of a trust in writing by the different parties when Registration occurs - Declaration “manifested and proved” in writing signed by person capable of creating trust: LPA 1925, s 53(1)(b)

Question 33

Resulting Trust

Answer 33

-Non-legal owner contributes to purchase price. The interest is determined by reference to the amount contributed to purchase price

Question 34

Constructive Trust

Answer 34

Equity may regard as unconscionable not to give effect to a common intention that a trust exists even though the formalities required by s 53(1)(b) have not been satisfied Llyods Bank v Rosset

Question 35

Legal Estate Must be JT

Answer 35

Co-owners of a Legal Estate Must be joint tenants, as a legal estate cannot be tenants in common: LPA 1925, ss 1(6); 34(2) & 36(2)

Question 36

Co-Ownership Equitable Estate

Answer 36

Either Joint Tenancy or Tenancy in Common: If express declaration in writing then its conclusive. If intention not stated there are two presumptions: 1) Equity follows the law 2) Equity prefers a Tenancy in Common Stack v Dowden: Unless there is a rebutting presumption, Equity will follow the law Pankhania v Chandegra

Question 37

Co-ownership Severance by Written Notice

Answer 37

Statutory: LPA 1925, s 36(2) - Written Notice: To be given by one to the other Joint Tenants -must ‘give’ notice to the other J/T(s) -Documents may not be designed to sever, or mention severance, but court may find that it is implied. Re Drapers Conveyance

Question 38

Co-ownership Severance Registered Post/last place of residence

Answer 38

(s 196(4)) - Deemed served unless returned undelivered By leaving at last place of abode or business in the UK: s 196(3) LPA 1925 Re 88 Berkley Rd Kinch v Bullard

Question 39

Co-Ownership Severance at Common Law

Answer 39

Williams v Hensman (1861) - Three categories: 1. Act on J/T’s own share 2. J/T’s have mutual agreement to sever JT (turn it into T/C) 3. Course of dealing by which all J/T’s show they intend to become T/Cs

Question 40

Act by any one of the JTs operating on own share

Answer 40

Sale- transfer destroys Unity of Interest Mortgage of an equitable interest Declaration of bankruptcy: equitable interest transfers to trustee in bankruptcy

Question 41

A Mutual Agreement to Sever the Joint Tenancy

Answer 41

No need to be written (and valid) agreement But it must be mutual – i.e. agreement by all the JTs in equity Burgess v Rawnsley

Question 42

Course of dealings and conduct by which all J/T’s intend to become T/C’s

Answer 42

-Inferred from conduct such as negotiations towards an agreement to sell that do not result in agreement Davis v Smith

Question 43

TOLATA (Trusts Of Land and Appointment of Trustee’s Act 1996)

Answer 43

-Power to sell – not a duty; power to retain Beneficial co owners have an equitable interest in land -Trustees mange the title for benefit of equitable co-owners before sale

Question 44

Disputes Between Trustee's and Beneficiaries

Answer 44

TOLATA: Provides a mechanism with allows the court to resolve disputes between co-owners: ss. 14 & 15 -Trustee has all powers the powers of an absolute owner (s. 6(1)) but Beneficiaries Have a right to Occupation

Question 45

Application to Court under TOLATA

Answer 45

In Application to the court under TOLATA for forcing a sale in a disagreement the court must consider: -Intention of the creator(s) Barclay v Barclay -Purpose for which land it is held Buchanan - Wallaston Jones v Challenger -Welfare of minors - (actual or potential) occupiers -Interests of secured creditors 1st national bank v Achempong -Circumstances and wishes of beneficiaries in possession if of full age

Question 46

Bankruptcy

Answer 46

S 335A(1) Insolvency Act 1986 applies instead: TOLATA, s 15(4) - The Trustee in Bankruptcy applies under s 335A for sale of home within first year of bankruptcy – court has discretion: - Needs and resources of bankrupt’s spouse/partner - Needs of children - The extent to which spouse/partner contributed towards bankruptcy

Question 47

Four Guidelines for an Easement to Exist

Answer 47

Re Ellenborough park: 1. There must be two pieces of land - dominant (benefited) land and servient (burdened) land 2. The right must “accommodate” (benefit) the dominant land 3. The dominant and servient owners must be different people 4. Right must be able to form the subject matter of a grant (lie in grant)

Question 48

How must The Right Accommodate the Land

Answer 48

a sufficient degree of proximity *-Right must confer benefit on the dominant land, not a purely personal advantage for its owner Hill v Tipper Moody v Steggles

Question 49

Intrusiveness of easement

Answer 49

Cannot be an easement if use effectively amounts to a claim to possess the servant land. A question of Degree. -Whether the servient owner retains a reasonable use of his land Copeland v Greenhalf Ward v Kirkland Wright v Mcadam

Question 50

Express Easement

Answer 50

Express Grant or Reservation done in Conveyance by deed.

Question 51

4 Methods of Implied Grants

Answer 51

- Necessity - Common Intention - Wheeldon v Burrows - Section 62 LPA 1925

Question 52

Implied Creation: Necessity

Answer 52

Necessity exists where land cannot sensibly be used/accessed without the implied easement being claimed. Without the Easement the land would effectively be unusable. Wong v Beaumont

Question 53

Implied Creation: Common intention

Answer 53

Implied because it is necessary to give effect to the common intention of the parties. For the proper use of the land that was envisaged between the two parties an easement is implied by their common intentions. Stafford v Lee Wong v Beaumont

Question 54

Implied Creation: Wheeldon v Burrows

Answer 54

Applies where owner sells part of his land. The owner of the whole creates quasi easements for his own personal use which become easements when he conveys the land. BUT: The Right must be Continuous and Apparent AND Reasonably necessary for enjoyment

Question 55

Implied Creation: s. 62 LPA 1925

Answer 55

Capable of turning a license into easement - Diversity exists where an owner leases/licenses part of his land and additionally grants occupier a license - The license in respect of the land retained may later be turned into an easement by a subsequent conveyance of the land occupied

Question 56

Equities Darling

Answer 56

``` A -Bona fide (good faith) purchaser of -Legal estate -For value; who is -Without notice (actual or Constructive) will not eb bound by an equitable interest ```

Question 57

Unregistered land 2 stages

Answer 57

1) CONTRACT (Writing: s 2 LP (MP) A 1989) | 2) CONVEYANCE OF TITLE/COMPLETION: DEEDS s 52 LPA 1925

Question 58

S.2 Land Charges Act 1972

Answer 58

Unregistered Land | If a land charge should be registered, but it is not registered, then it will lose priority

Question 59

Over reaching

Answer 59

on sale beneficiaries interests shift from the land and attach to the proceeds of its sale: -Purchaser must pay purchase/capital money: either to (a minimum) of two trustees or to a trust corporation: s 27&(2) LPA 1925

Question 60

Land Registration Act 2002

Answer 60

Section 6 & 7: - Purchaser buys unregistered title - Contract/Completion- Registration - Two months to register after the completion of the contract -Sale of registered land: The Purchaser gets title by registration

Question 61

Person Buying registeres land is subject to

Answer 61

S.29 LRA 2002: - Registered interests - Interests protected on the register either by notice or restriction (minor interests: terminology of LRA 1925) - Unregistered interests that override (Sched 3 LRA 2002)

Question 62

Interests that Override

Answer 62

- Beneficial Interests that were informally created in the Property - Usually the Interests of a Wife in a home. - Short Leases; Under 7 years - Equitable Leases

Question 63

Interests of Actual occupiers

Answer 63

Overriding interest = (property) interest + actual occupation: AND Occupation obvious on reasonably careful inspection of the land at the time of the disposition