Land MCQS Flashcards
A person describes themselves as the owner of a piece of land, which includes a house and garden. What do they own?
A) A right to possess the land
B) The physical land
C) The physical building on the land only
A) A right to possess the land
(Correct. We are completely wrong in everyday language when we refer to ourselves as owning a piece of land. The Crown owns all land in England and Wales. What we technically own is a right to possess the land)
What is the focus of the study of Land law?
A) The physical land
B) The Crown’s ownership of land
C) The sale of property
D) The history of land ownership
E) Rights in the land
E) Rights in the land
(Correct. Land law is all about rights in the land, rather than the physical land itself. These rights can be very powerful. Land law is also the study of different land-related relationships, such as landlord and tenant)
Which of the following pieces of statute is the foundation of modern land law?
A) The Law of Property Act 2002
B) The Law of Property Act 1925
C) The Land Registration Act 2002
D) The Law of Property Act 1066
B) The Law of Property Act 1925
(Land law was radically overhauled by a statute called the Law of Property Act 1925 (LPA). This is the reason that the majority of land law has its roots in statute, rather than case law, and the LPA 1925 is the real foundation of modern land law)
Which of the following options correctly describes the process you must go through to determine if a right being claimed is proprietary or not?
A) Determine if the right is on the list of recognised proprietary rights, whether it satisfies the substantive characteristics, and has been created/acquired in accordance with the formalities for the right
B) Determine whether the right in question has been registered
C) Examine whether the right in question relate to personal or real property
D) Conduct a physical inspection of the land to ascertain whether there is evidence of the right in question
A) Determine if the right is on the list of recognised proprietary rights, whether it satisfies the substantive characteristics, and has been created/acquired in accordance with the formalities for the right
(Proprietary rights are very powerful. As a result, these requirements will have to be met for a right to have proprietary status in the circumstances)
Two landowners are neighbours. One of the landowners grants the other a right to store coal in their coal shed. The grantor of the right sells their house. The new owner asks the neighbour to move the coal from the shed. Which of the following statements best describes the legal position?
A) The neighbour will have to move the coal because such a right can never be enforced against a third party
B) The neighbour will have to move the coal because it is personal property
C) The neighbour does not need to move the coal if the right is an easement and if it has been registered properly at the Land Registry
D) The neighbour does not need to move the coal because it is real property
E) The neighbour does not need to move the coal because they have a proprietary right in the land
C) The neighbour does not need to move the coal if the right is an easement and if it has been registered properly at the Land Registry
(The neighbour does not need to move the coal if the right to store is an easement, provided it has been registered at the Land Registry. A right to store is capable of being an easement. Provided that it satisfies the substantive requirements of easements and has been created in accordance with the correct formalities then it will be an easement. If the easement is registered it would then be binding the new landowner)
Which of the following statements best explains what it means if someone holds a proprietary right in the land?
A) Compensation is available for breach of a proprietary right
B) The right is in personal property
C) The right is capable of being enforced against third parties
D) The right will automatically be enforceable against a new owner of the land
E) The right is enforceable in personam
C) The right is capable of being enforced against third parties
(A proprietary right is capable of being enforced against third parties. It will not just be enforceable against the grantor of the right. A proprietary right is not, however, automatically enforceable against a third party)
A landowner grants their friend a right to live in the landowner’s house for 5 years. One year later the landowner decides they would like the house back. The landowner goes into the house and changes the locks. Which of the following statements correctly explains what it means if the right to live in the house is determined to be a proprietary right known as a lease?
A) If the landowner sold the house then the friend would not be able to enforce the right to live in the house against the new owner
B) The friend would not be able to do anything as the landowner owns the land
C) The friend would have to settle for damages for breach of the right
D) The friend would be able to recover the right to live in the house for the remainder of the term
E) The Crown owns the land and would be able to evict the both the landowner and the friend if it would like to
D) The friend would be able to recover the right to live in the house for the remainder of the term
(A lease is a proprietary right which is enforceable in rem ie the right is in the land rather than against the landowner who granted the right. This means if the right is a lease then the friend would be entitled to recover possession and use of the house for the remainder of the lease term)
Which of the following correctly describes an estate in land?
A) A right to possess the land
B) Physical ownership of the land
C) A right to use or enjoy the land
A) A right to possess the land
(We cannot own the physical land, we can just own a right to possess the land. This is known as an estate)
What is the technical name for a leasehold estate?
A) Fee simple years absolute
B) Fee simple absolute in possession
C) Term of years in possession
D) Term of years absolute
D) Term of years absolute
(This is how the leasehold is defined in LPA 1925, s 1(1)(b). However, in practice it is always referred to as the leasehold)
Does the freeholder need to be physically in possession of a piece of land?
A) Yes, all of the land
B) No
C) Yes, at least part of the land
B) No
(Physical possession is not necessary as ‘in possession’ includes receiving rent)
The particulars of sale for a third floor, two-bedroomed flat in Camden state that the price is £400,000 and there are 125 years left to run on the term. If you bought this flat, what would you be buying?
A) A personal right in the land
B) A leasehold estate
C) The physical land
D) The fee simple
E) A freehold estate
B) A leasehold estate
(Though you may think you will be the owner of the flat, what you would actually be the owner of is a 125 year lease of the flat. If you bought this flat, you would have a proprietary right to possess the land for 125 years)
Which of the following interests in land is only capable of being equitable in nature?
A) Right of entry
B) Beneficial interest behind a trust
C) Easement
D) Mortgage
B) Beneficial interest behind a trust
(This is correct. A beneficial interest behind a trust is not a recognised legal interest under LPA 1925, s (1)(2), therefore it can only take effect as an equitable interest under LPA 1925, s 1(3))
A and B buy a piece of land together each contributing 50% of the purchase price. A is registered at the Land Registry as the legal owner. What interest (if any) does B have in the land?
A) No interest
B) A freehold estate
C) An estate contract
D) An interest under a trust of land
E) A restrictive covenant
D) An interest under a trust of land
(This is correct. As B has contributed to the purchase price, but is not a legal owner, B does not have a legal interest in the land (i.e. B does not own a freehold estate) but equity regards B has having a beneficial interest in the land behind a trust. A trust is automatically imposed in these circumstances, with A holding the property on trust for him/herself and B)
Where are the list of legal interests found?
A) LPA 1925, s 1(3)
B) LPA 1925, s 52
C) LPA 1925, s 1(2)
D) LPA 1924, s 1 (1)
E) LP(MP)A 1989, s 1
C) LPA 1925, s 1(2)
(This is correct. S.1(2) of the LPA lists the interests that are capable of being legal interests)
Which of the following interests in land is only capable of being equitable in nature?
A) Restrictive covenant
B) Mortgage
C) Right of entry
D) Easement
A) Restrictive covenant
(This is correct. A restrictive covenant is not a recognised legal interest under LPA 1925, s (1)(2), therefore it can only take effect as an equitable interest under LPA 1925, s 1(3))
Which of the following statements is true in respect of an interest in land?
A) An interest in land gives the holder of the interest a right to possess the land
B) If the holder of an equitable interest is deprived of their right, they are automatically entitled to damages
C) Only legal interests in land have proprietary status
D) An interest in land is not capable of being enforced against third parties
E) An interest in land can be enforced in rem, this means the right can be recovered if the holder is deprived of it
E) An interest in land can be enforced in rem, this means the right can be recovered if the holder is deprived of it
(This is correct. An interest in land is a proprietary right which means it is enforceable in rem and is capable of being enforced against third parties)
A loans B some money. B grants A rights over their property in exchange for the loan. What interest in the land does A have?
A) A mortgage
B) An easement
C) No interest
D) An interest under a trust of land
E) An estate contract
A) A mortgage
(This is correct. A mortgage can be defined as being a loan of cash which is secured by the lender being given rights over the prop offered as security by borrower)
A agrees to sell a piece of land to B. They enter into a written document which details the agreement and which they both sign. What interest in the land does B have?
A) A restrictive covenant
B) An interest under a trust of land
C) An estate contract
D) No interest
E) A freehold estate
C) An estate contract
(This is correct. Put very simply, an estate contract is a contract in land i.e. a contract where the subject matter of the contract is land and that complies with LP(MP)A 1989, s 2 which this does. This is one of the most common examples of an estate contract. When the parties enter into a contract to buy/sell the Land, which is then exchanged, the contract gives the buyer an equitable interest in the land he has contracted to buy)
Which of the following interests in land is only capable of being equitable in nature?
A) Mortgage
B) Easement
C) Right of entry
D) Beneficial interest behind a trust
D) Beneficial interest behind a trust
(This is correct. A beneficial interest behind a trust is not a recognised legal interest under LPA 1925, s (1)(2), therefore it can only take effect as an equitable interest under LPA 1925, s 1(3))
If the land being transferred is unregistered land, does the transfer need to be registered?
A) Yes the land transfer will trigger the requirement to register the land for the first time
B) No there is never a requirement to register a land transfer
C) No because the legal title transfers at the point at which the deed is completed
D) Yes the registered title will need to be updated
A) Yes the land transfer will trigger the requirement to register the land for the first time
(The land transfer will trigger a requirement to trigger the land for the first time. This is called compulsory land registration)
A buyer and seller enter into a document that is described as a ‘transfer deed’ for the sale of a piece of land. The buyer and seller both sign the deed. The buyer transfers the purchase money and the seller’s solicitor then dates the document. Which of the following statements correctly explains whether the deed is valid?
A) The deed is invalid because it has not been correctly executed
B) The deed is valid because it complies with LP(MP)A 1989, s 2
C) The deed is valid because it complies with LPA 1925, s 52
D) The deed is valid because it complies with LP(MP)A 1989, s 1
E) The deed is invalid because it has not been delivered
A) The deed is invalid because it has not been correctly executed
(The deed is invalid. It has been clearly intended as a deed by being described as such, but it has not been correctly executed – although signed by the seller, the seller’s signature must be witnessed and the witness must also sign their name. The deed has been delivered, which was done by dating the document. The deed does not therefore comply with the requirements laid down in LP (MP) A 1989, s.1)
Which of the 3 stages of transferring a freehold estate is not necessary to effect a legal transfer of the title?
A) Contract
B) Deed
C) Registration
D) All stages are necessary
A) Contract
(A contract is not required to legally transfer the land. However, it is usual for the parties to enter into a contract as part of the conveyancing process)
Which of the following options is the correct statutory authority for the rule that a deed must be used to transfer a freehold estate?
A) LP(MP)A 1989, s 2
B) LPA 1925, s 52
C) LP(MP)A 1989, s 1
D) LRA 2002, s 27
B) LPA 1925, s 52
(A legal estate must be transferred or created by deed. LPA, s 52 relates to the transfer of a freehold estate. It also relates to the creation of a leasehold estate and a legal mortgage and a legal easement as you will learn about)
A buyer and seller of land agree that the buyer will buy a piece of land from the seller for a price of £100,000. They instruct solicitors. The buyer’s solicitor carries out various investigations into the land before the buyer confirms it is happy to proceed. The terms of the agreement are put into a document, which is signed by the buyer and the seller.
Which of the following statement correctly explains the validity of this document?
A) The document is invalid because it has not been witnessed
B) The document is valid because it satisfies the requirements in LRA 2002, s 27
C) The document is invalid because it has not been delivered
D) The document is valid because it complies with LP(MP)A 1989, s 2
E) The document is valid because it complies with LP(MP)A 1989, s 1
D) The document is valid because it complies with LP(MP)A 1989, s 2
(The buyer and seller have not entered into a contract to buy/sell the land. The contract is valid because it is in writing, contains all the agreed terms and has been signed by both the buyer and seller. It complies with LP(MP)A 1989, s 2, which is the correct statutory authority)
If a piece of unregistered land is transferred, at what point is the buyer recognised as being the legal owner of the land?
A) Registration
B) When the purchase money is paid
C) When the land is registered for the first time
D) Exchange of contracts
E) Completion of the transfer deed
E) Completion of the transfer deed
(Legal title (ie ownership) transfers at the point of completion if the land being transferred is unregistered)
If a piece of registered land is transferred, at what point is the buyer recognised as being the legal owner of the land?
A) Exchange of contracts
B) When the land is registered for the first time
C) Registration
D) Completion of the transfer deed
E) When the purchase money is paid
C) Registration
(Legal title (ie ownership) transfers at the point at which the buyer is registered at the Land Registry)
When a land contract is signed, the parties need not sign the same physical copy. The parties can sign different copies of the same document.
Is this statement true or false?
A) True because s 2(1) permits all the terms to be in two documents provided they are identical
B) False the parties must sign the same physical document
C) True because the contractual terms can be incorporated by reference under s 2(2)
A) True because s 2(1) permits all the terms to be in two documents provided they are identical
(The statement is true. The agreed land contract can be engrossed in duplicate, with the parties signing different copies of the same document, which are then physically swapped. This is standard conveyancing practice to save time and is known as ‘exchange of contracts’)
Two people enter into an agreement for lease of land. The agreement refers to various plans and a document which contains a scheme of building works that must be completed by the landlord prior to the commencement of the lease. The agreement is drafted by the seller’s solicitor and signed by both the buyer and seller. The landlord fails to undertake the building works and the prospective tenant refuses to enter into the lease. Which of the following statements best describes whether the landlord can compel the prospective tenant to enter into the lease under the terms of the agreement?
A) The prospective tenant need not enter into the lease because the agreement does not comply with the necessary statutory formalities
B) The prospective tenant must enter into the lease because the plans and scheme of building works are not part of the agreement for lease
C) The prospective tenant need not enter into the lease because the landlord has not complied with plans and scheme of building works, which have been included in the sale agreement by incorporation
D) The prospective tenant need not enter into the lease because the agreement has not been executed correctly
E) The prospective tenant must enter into the lease because the agreement complies with the necessary statutory formalities
C) The prospective tenant need not enter into the lease because the landlord has not complied with plans and scheme of building works, which have been included in the sale agreement by incorporation
(The two parties have entered into an agreement for lease, which is a contract to enter into a lease in the future. Such a contract must comply with LP(MP)A 1989, s.2, which it does. The contract is in writing, has been signed by both parties and contains all the agreed terms, including the building works and plans, which have been included by incorporation. This is permitted by LP(MP)A 1989, s 2(2), which provides the contractual terms may be incorporated into the contractual document either by being set out in the document or by referring to some other document. The landlord has not complied with the terms by undertaking the works. Therefore, the other party need not enter into the lease because it is conditional upon these being completed)
Two neighbouring land owners enter into an agreement in which one of the landowners will offer their neighbour the right to buy the land first if they decide to sell. The landowners subsequently orally decided to extend the period of the agreement. Which of the following statements correctly describes whether the agreement has been validly extended?
A) The agreement has not been extended because the variation does not comply with the necessary statutory formalities
B) The agreement has been extended because the variation complies with correct statutory formalities
C) The agreement has been extended because all parties agreed to the variation
D) The agreement has been extended because the variation does not relate to a material term
E) The agreement has not been extended because a right of pre-emption cannot be varied
A) The agreement has not been extended because the variation does not comply with the necessary statutory formalities
(The agreement is a right of pre-emption, which is a type of land contract. In order for a variation to be valid, it must also comply with LP(MP)A 1989, s.2. This was made clear in the case of McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38, where the parties tried to agree an oral variation to the agreed completion date. This variation was held to be void and the court stated that whenever a material term in land contract is varied, that variation must comply with LP(MP)A 1989, s.2. The term of the pre-emption agreement is no doubt a material term)
If you hold the benefit of a valid land contract, what kind of interest (if any) do you have in the land that is the subject matter of the contract?
A) The contract gives no interest in the land
B) The contract gives a legal interest in the land
C) The contract gives a personal right in the land
D) The contract gives a contractual right in the land
E) The contract gives an equitable interest in the land
E) The contract gives an equitable interest in the land
(The effect of a land contract is to pass an equitable interest in the land. This is a proprietary right in the land known technically as an ‘estate contract’)
A buyer and seller enter into a valid contract for the sale of a piece of land. The seller subsequently decides to pull out of the deal because a higher offer from a third party is received. The buyer still wishes to proceed with the purchase. Which of the following options correctly describes the best advice to the buyer?
A) The buyer should ask the court for the common law remedy of an injunction to force the seller to comply with the contract
B) The buyer should ask the court for an injunction because this would force the seller to comply with the contract
C) The buyer should sue for damages because that is the only remedy available for breach of contract
D) The buyer should ask for the court for an order of specific performance which would compel the seller to comply with the contract
E) The buyer should ask for court for an order of specific performance because this would stop the sale to the third party
D) The buyer should ask for the court for an order of specific performance which would compel the seller to comply with the contract
(As the contract for sale grants the buyer a proprietary equitable interest in the land, the buyer is entitled to damages as a right for breach. Given the buyer would like to proceed with the purchase, the buyer should ask the court for an order of specific performance. This is an order which, if granted, would compel the seller to comply with the terms of the contract and sell the land to the buyer. This, like an injunction, is an equitable remedy, which means it will only be granted at the discretion of the court)
Which of the following correctly describes the requirements of a land contract?
A) Intended as a contract, contains all the agreed terms and is signed by both parties
B) Intended as a contract, executed by the grantor in the presence of a witness who attests their signature and delivered
C) In writing, contains all the terms and is signed by both parties
D) The agreement need not be in writing if the term of the agreement is for less than 3 years and the conditions in LPA, s 54(2) are met
E) In writing, is signed by both parties and is delivered
C) In writing, contains all the terms and is signed by both parties
(A land contact must comply with LP(MP)A 1989, s.2. The contract must be in writing, all the terms must be included and the contract must be signed by both parties. There is no requirement that the signatures of both parties be witnessed, unlike the requirements for a deed)
To which of the following types of document would LP(MP)A 1989, s.2 NOT apply?
A) A five-year lease
B) An option agreement over a field
C) A contract for sale of land
D) A right of pre-emption over a house
E) An agreement for lease
A) A five-year lease
(LP(MP)A 1989, s 2 applies to all land contracts, not just a contract for the sale of land. If the subject matter of the agreement is land, s.2 will apply. A lease is not, however, a contract. It is the grant of an estate in land, which must be by deed)
Which system for proving ownership of land is governed by the LRA 2002?
A) Unregistered Land
B) The Land Registry
C) Registered Land
C) Registered Land
(The LRA 2002 governs the registered land system. The system was introduced by the Land Registration Act 1925, but this has not been repealed and replaced in its entirety by the LRA 2002)
Which of the following options best explains why approximately 15% of land in England and Wales remains unregistered?
A) The land is subject to an overriding interest
B) The land will be in an area which is not designated as being subject to compulsory registration
C) The landowner has chosen not to register the land
D) You only have to register a piece of land if a triggering event occurs eg sale of the freehold estate
D) You only have to register a piece of land if a triggering event occurs eg sale of the freehold estate
(From 1926 onwards central government designated various areas as being areas of compulsory registration, so eventually all of England and Wales would be registered. It was not until 1990 that all of England and Wales became designated as an area subject to compulsory registration. The effect of designating an area as being subject to compulsory registration is that if there is then a transaction or event (disposition) with the land which triggers compulsory registration (a triggering event) then the land must be registered for the first time. If there has not be a triggering event with a piece of land it will remain unregistered unless the land owner chooses to make a voluntary first registration application)
Which of the following options best explains the advantages of the system of Land Registration?
A) The Land Registry offer reduced fees if that land is registered
B) There are no overriding interests which could bind the land
C) Dealing with registered land is very repetitive and so speeds up the process of conveyancing
D) Approximately 75% of land in England and Wales is now registered so solicitors will be more familiar with the registered land system
E) The process of conveyancing is quicker, simpler and ownership is guaranteed by the state
E) The process of conveyancing is quicker, simpler and ownership is guaranteed by the state
(A buyer of registered land does not need to investigate numerous title deeds to establish ownership and the rights a piece of land has the benefit/burden of. As a result, it is quicker and simpler to investigate a piece of registered land and speeds up the process of conveyancing. Also, ownership of a registered pieces of land is guaranteed by the state, so there is a mistake with the register then the innocent party who has suffered loss can make a claim for compensation against the Land Registry)
Producing the bundle of title deeds would prove your ownership of what type of land?
A) Both registered and unregistered land
B) Registered Land
C) Unregistered Land
C) Unregistered Land
(This is correct. The historic title deeds, which trace the ownership of property are what you would need to show to prove you own an unregistered piece of land)
Which of the following options is the correct statutory authority for the requirement to register a piece of land for the first time following the grant of a legal mortgage over the unregistered freehold estate?
A) LRA 2002, s 4
B) LPA 1925, s 27
C) LRA 2002, sch 2
D) LPA 1925, s 4
E) LRA 2002, s 27
A) LRA 2002, s 4
(LRA 2002, s 4 lists the transactions over unregistered land that trigger a requirement to register the land for the first time. The grant of a legal mortgage over a piece of unregistered land will trigger a requirement to register the land for the first time)
Which of the following options correctly lists the dispositions (ie transactions) that trigger a requirement to register the land for the first time?
A) The grant of a 9 year lease, the gifting of a freehold and the grant of a legal mortgage
B) The grant of a 1 year lease, the assent of a freehold and the grant of an equitable mortgage
C) The grant of a 6 year lease, the sale of a freehold and the grant of a legal mortgage
D) The grants of a 7 years lease, the sale of a freehold and the grant of a legal mortgage
E) The grant of a 3 year lease, the sale of a freehold and the grant of an equitable mortgage
A) The grant of a 9 year lease, the gifting of a freehold and the grant of a legal mortgage
(Under LRA 2002, s 4 (first registration) and LRA 2002, s 27 (transactions involving already registered land) the circumstances which trigger compulsory registration now include all of these transactions. It is not necessary for there to be a sale of a freehold estate, the gift or assent of a freehold estate will also trigger a registration requirement. The grant of a lease over 7 years must be completed by registration, as must the grant of a legal mortgage)
Which register in an official copy contains the details of any easements that burden a piece of land?
A) Charges Register
B) Proprietorship Register
C) Property Register
A) Charges Register
(This register contains details of any rights that burden a piece of land eg leases, mortgages, restrictive covenants, easements)
Which register in an official copy contains the description of the piece of land that is registered?
A) Property Register
B) Charges Register
C) Proprietorship Register
A) Property Register
(This register contains a description of the piece of land and the details of any rights that benefit a piece of land)
Which class of title would you to expect to see if the Land Registry is satisfied as to the ownership of the estate and that there is no defect with the title?
A) Possessory Title
B) Good Leasehold
C) Qualified Title
D) Absolute Title
D) Absolute Title
(This is the best form of ownership and is really what you would want to see on the official copies if you were buying a property. Most properties are registered with this class of title and it means the Land Registry does not consider there are any defects with the ownership. The land is only bound by interests that are registered on the title or overriding interests)
Which register in an official copy contains details of the class of title?
A) Charges Register
B) Property Register
C) Proprietorship Register
C) Proprietorship Register
(This register contains details of the the class of title such as title absolute, possessory title)
Which of the following options best explains why the mirror principle of Land Registration has never fully been realised?
A) A buyer of land will have to investigate the equitable ownership of a piece of land in addition to the legal ownership
B) Certain interests do not need to be registered, but will still be binding on a third party
C) Around 15% of land in England and Wales remains unregistered
D) If someone is in possession of a piece of land but has lost the title deeds, they cannot be registered as the legal owner
B) Certain interests do not need to be registered, but will still be binding on a third party
(The mirror principle is the ideal that the register should reflect all matters that the property has the benefit of and all the matters that the property is subject to. It should be a clear and comprehensive account of the ownership and rights that benefit and burden a piece of land. However, this has arguably never fully been realised due to the existence of ‘overriding interests’, which are interests that do not need registering and so do not appear on the register, but will still be binding)
Which of the following statements correctly describes the insurance principle of Land Registration?
A) The accuracy of the register is guaranteed by the state
B) Certain interests do not need to be registered, but will still be binding on a third party
C) A buyer of land will have to investigate the equitable ownership of a piece of land in addition to the legal ownership
D) A buyer of land need not be concerned with the equitable ownership of an estate
E) The register should reflect all matters that the property has the benefit of and all the matters that the property is subject to
A) The accuracy of the register is guaranteed by the state
(This is the insurance principle of Land Registration. The accuracy of the register is guaranteed by the state. This is one of the advantages of registered land over unregistered land. Therefore if there is an error the register will be corrected and anyone who has suffered any loss will be compensated (LRA 2002, s 23.) You often see the compensation referred to as ‘state indemnity’)
Which statutory provision contains the legal definition of what is land?
A) s.1 LPA 1925
B) s.62 LPA 1925
C) s.205(1)(ix) LPA 1925
D) s.52 LPA 1925
C) s.205(1)(ix) LPA 1925
(This is correct. The statutory definition includes; the surface of the physical land, building on the land, fixtures and incorporeal hereditaments)
Which of the following is not included within the definition of land?
A) Fittings
B) Buildings
C) Mines and minerals
D) Fixtures
E) The benefit of an easement
A) Fittings
(This is correct. Fitting are not included within the definition of land under LPA, 205(1)(ix))
Which of the following options correctly explains why you might need to determine if something is land or not?
A) If you are selling a piece of land, you need to know what you are entitled to take and what must be left for the buyer as everything classed as land passes to the buyer under LPA 1925, s 62
B) If you are buying a piece of land, you need to know what is included in the purchase as everything that counts as land is included under LPA 1925, s 52
C) If a lender takes possession proceedings and exercises it rights to sell, you need to determine whether to use a deed or not
D) You must use a contract to sell anything that counts as land under LPA 1925, s 52
A) If you are selling a piece of land, you need to know what you are entitled to take and what must be left for the buyer as everything classed as land passes to the buyer under LPA 1925, s 62
(This is correct. This is particularly relevant in the context of fixtures/fittings. If an item is a fixture, it is part of the land and must therefore be left for the buyer. However, if something is a fitting, the seller can take it)
Which of the following statements correctly explains the current position at law in respect of the airspace above an owner’s piece of land?
A) A landowner owns the lower airspace above his/her land
B) A landowner only owns the surface of the land upon which the buildings rest. It does not own any of the air above it.
C) A landowner owner the upper airspace above his/her land
D) A landowner owns everything up to the heaven’s above
A) A landowner owns the lower airspace above his/her land
(This is correct. A land owner has rights in what is classed as the lower airspace above his/her land)
A satellite dish is overhanging onto an adjoining piece of land, though is not causing any damage to the land. Which of the following options correctly explains whether this is trespass?
A) Yes the satellite dish would be committing trespass as it is in the upper airspace above the land
B) No the satellite dish is not damaging the land, therefore it is not committing trespass
C) No the satellite dish would not be committing trespass as it is in the upper airspace above the land.
D) Yes the satellite dish would be committing trespass as it is in the lower airspace above the land
D) Yes the satellite dish would be committing trespass as it is in the lower airspace above the land
(This is correct. The satellite dish would be classed as trespassing into the lower airspace of the land. The lower airspace is the area above the physical land which is reasonably necessary for a landowner’s use and enjoyment of the land, it does not matter that no damage is being caused to the land. The facts of this case are similar to Kelsen v Imperial Tobacco Co)
Which of the following statements correctly explains the current position at law in respect of the ground below an owner’s piece of land?
A) A landowner owns the ground under the surface to depths above 300 metres
B) A landowner owns only the surface of the land
C) S/He who owns the land owns everything to the depths below.
D) A landowner owns up to depths of 600 metres under the Infrastructure Act 2015, s43
A) A landowner owns the ground under the surface to depths above 300 metres
(This is correct. The Infrastructure Act 2015, s43 effectively states there is no trespass at depths below 300 metres)
Within the definition of land under LPA 1925, s.205 (1)(ix) a fixture would be classed as which of the following?
A) A corporeal hereditament
B) An incorporeal hereditament
C) A privilege derived from land
D) Chattel
A) A corporeal hereditament
(This is correct. Corporeal hereditaments are things attached/fixed to the land, what we call fixtures in practice)
Which of the following statements correctly describes the legal position in respect of fixtures?
A) An item not attached to the land can never be a fixture
B) An item not attached to the land can be a fixture if it part of the architectural design of a building
C) If something is attached to the land it will always be a fixture
D) Fixtures will only pass to a buyer of land if they are included in the sale
B) An item not attached to the land can be a fixture if it part of the architectural design of a building
(This is correct. If chattels are incorporated into the architectural design of a building, they may consequently be classified as fixtures even though they are not firmly affixed. This can be seen in D’Eyncourt v Gregory (1866) LR 3 Eq 382 where a stone garden seat and ornamental statues standing on their own weight were held to be fixtures as forming part of the architectural design of the house and its grounds)
A picture is attached to the wall of a house. Which of the following statements explains the legal position as to whether the picture is likely to be a fixture or not?
A) Pictures will always be fixtures if they are attached to the wall
B) The degree of annexation test will lead to a presumption that the picture is a fixture because it can be removed without damage to the wall
C) It will depend on the circumstances of the case. If the picture can be removed easily and put in place to enjoy as pictures, it is likely to be a chattel
D) Pictures will never be fixtures because they are personal to the owner for the time being
E) If the purpose of attaching the picture to the wall was to improve the building, this indicates the picture is a chattel
C) It will depend on the circumstances of the case. If the picture can be removed easily and put in place to enjoy as pictures, it is likely to be a chattel
(This is correct. Such a situation is analogous to the facts of Berkley v Poulett [1977] 1 EGLR 86, and as Lord Justice Scarman states: “if ordinary skill was used, as it was, in their removal, they could be taken down, and in the event were taken down, without much trouble and without damage to the structure of the rooms. The decisive question is therefore as to the object and purpose of their affixing. …I find, applying the second test, that the pictures were not fixtures. They were put in place on the wall to be enjoyed as pictures.”)
Which test prevails in determining if an item is a fixture or chattel?
A) The degree of annexation test
B) The purpose of annexation test
C) Both tests are equally decisive
B) The purpose of annexation test
(This is correct. The ‘purpose test’ prevails over the ‘degree test’ where there is a discrepancy between them (Holland v Hodgson (1872) LR 7 CP 328))
What is the most common type of mortgage arrangement today?
A) Sharia – compliant
B) Capital and interest repayments
C) Interest only
D) Endowment
E) Pension
B) Capital and interest repayments
(Correct. Each month the borrower pays an instalment which consists partly of repayment of capital and partly interest on the outstanding balance)
Which of the following statements is correct?
A) The mortgagor is the borrower
B) The mortgagee is the borrower
C) The mortgagor is the lender
D) A mortgage is a personal right
A) The mortgagor is the borrower
(This is correct. The mortgagor is the borrower, who grants the mortgage as security for the loan)
Which of the following statements correctly describes the likely outcome for a low risk borrower?
A) A bank is unlikely to loan money to a low risk borrower
B) They will be charged a high interest rate
C) They will be charged a low interest rate
C) They will be charged a low interest rate
(When the borrower is a low risk party, s/he will usually be charged a low interest rate)
Which one of the following statements is true?
A) A mortgage is capable of being a legal interest in land only
B) A mortgage is capable of being an equitable estate in land
C) A mortgage is capable of being an equitable interest in land only
D) A mortgage is capable of being a legal or equitable interest in land
E) A mortgage is capable of being a legal estate in land
D) A mortgage is capable of being a legal or equitable interest in land
(Correct. See LPA 1925 ss 1(2)(c) and 1(3))
If a mortgage intended to be legal is not created properly, what is the consequence?
A) The mortgage will fail as an interest in land
B) The mortgage will be equitable if it is in writing and signed by the borrower
C) The mortgage will be equitable provided that it is in writing which contains all the terms and is signed by both parties
C) The mortgage will be equitable provided that it is in writing which contains all the terms and is signed by both parties
(Correct. A failed legal mortgage will be treated as a contract to create a legal mortgage if it complies with LP(MP) A 1989, s 2)
What formalities must be complied with in order to create a mortgage over an equitable interest in land?
A) Deed and substantive registration
B) Contract
C) In writing signed by the mortgagor
D) Deed
E) Contract and registration
C) In writing signed by the mortgagor
(Correct. A mortgage over an equitable interest need only be in writing and signed by the grantor (LPA 1925, s 53(1)(c)))
When might an option for the lender to purchase the mortgaged property be upheld?
A) When it is granted in a substantially separate transaction
B) When it is granted in a separate document.
C) When it is granted at a later date than the mortgage.
D) When the parties have equal bargaining power
A) When it is granted in a substantially separate transaction
(Correct. Warnborough V Garmite said that the whole transaction must be looked at to see if it is substantially a mortgage or not. If it is a mortgage, the option will not be allowed and vice versa)
A mortgage loan contains a a legal date of redemption which falls 2 months before the end of a 25 year mortgage term. Which one of the following rights which make up the equity of redemption is likely to be relied upon here by the mortgagor to have the clause thrown out by the courts?
A) The equitable right to redeem
B) No collateral advantages
C) No postponement or prevention of redemption
to redeem is rendered valueless.
C) No postponement or prevention of redemption
(Correct. The equitable right to redeem does not arise until 6 weeks before the end of the mortgage term. Courts look at clauses which postpone the legal date for redemption very closely and would consider whether, on the facts, the right to redeem is rendered valueless)
When does the legal right to redeem arise?
A) On the day after the legal date for redemption has passed
B) On the date set out in the mortgage deed
C) Immediately the mortgage deed is signed
B) On the date set out in the mortgage deed
(Correct. The legal right exists for one day, and is the date set out in the mortgage deed. Review the materials on the equitable right to redeem)
In Fairclough v Swan Brewery the court examined a clause which postponed the legal date for redemption. What was the outcome of the clause?
A) The clause was upheld because once the loan was repaid, the borrower would get back what he had mortgaged and during the mortgage he had had the benefit of a low interest rate
B) The clause was upheld because it was a commercial bargain made between two experienced business parties
C) The clause was struck out because once the loan was repaid, the borrower would get back an estate which was worth much less than at the time of the mortgage
C) The clause was struck out because once the loan was repaid, the borrower would get back an estate which was worth much less than at the time of the mortgage
(Correct. The borrower would not get back an unencumbered leasehold which was exactly what he had mortgaged. A leasehold estate is a depreciating asset, and a lease with only 6 weeks left to run, is very different to a lease with 17 years left to run)
Which one of the following statements on solus ties is true?
A) The solus tie will be permitted in a commercial transaction if the tie ends before or at the end of the mortgage term
B) The solus tie will not be permitted in a commercial transaction if the tie extends beyond the mortgage term even if it is a genuinely separate transaction
C) The solus tie will be permitted in a commercial transaction where the tie ends after the mortgage term ends
A) The solus tie will be permitted in a commercial transaction if the tie ends before or at the end of the mortgage term
(Correct. This is the decision in Biggs v Hoddinot)
One of the situations where undue influence may arise is where there is a relationship of influence of which unfair advantage is taken. There are a number of relationships where there is an irrebuttable presumption that one party has influenced the other. Which ONE of the following is NOT within that number?
A) Solicitor and client
B) Trustee and beneficiary
C) Husband and wife
D) Parent and child
E) Doctor and patient
C) Husband and wife
(Correct. In cases where undue influence is claimed, it will not be presumed but will need to be positively shown)
In addition to a relationship of trust and confidence, what else must be shown for a claim of undue influence to succeed?
A) A transaction which involves fraud
B) A transaction which requires explanation
C) A transaction which involves misrepresentation
B) A transaction which requires explanation
(Correct. If there is a relationship of trust and confidence the transaction must be one that initiates the question ‘why has X signed this?’ If it is, undue influence is established)
In Barclays Bank v O’Brien, why was the bank unable to enforce its charge against Mrs O’Brien?
A) Mr O’Brien had unduly influenced his wife to sign the charge without ensuring she was fully informed
B) The bank had constructive notice of Mr O’Brien’s undue influence and failed to take reasonable steps to ensure that Mrs O’Brien was fully informed.
C) The bank had unduly influenced Mrs O’Brien into signing the charge without ensuring she was fully informed
B) The bank had constructive notice of Mr O’Brien’s undue influence and failed to take reasonable steps to ensure that Mrs O’Brien was fully informed
(Correct. The bank had notice of the potential risk of undue influence and should have ensured that Mrs O’Brien fully understood what she was signing)
Which case sets any guidance as to the steps a lender should take to avoid being fixed with constructive notice of undue influence?
A) Barclays Bank v O’Brien
B) RBS v Etridge
C) CIBC v Pitt
B) RBS v Etridge
In RBS v Etridge, the court extended the scope of the principles of constructive notice of undue influence. Which one of the following is the most accurate statements of the effect of this case?
A) The principles are relevant where the relationship between the person claiming undue influence and the debtor is one of husband and wife.
B) The principles are relevant in every case where the relationship between the person claiming undue influence and the debtor is non-commercial
C) The principles are relevant where the relationship between the person claiming undue influence and the debtor is one of husband and wife and civil partners
B) The principles are relevant in every case where the relationship between the person claiming undue influence and the debtor is non-commercial
(Correct. The idea of constructive notice now extends far beyond family and spousal relationships)
Where a borrower has created three legal mortgages, in favour of three different lenders, on consecutive days, how do we work out which takes priority?
A) Priority between legal charges depends on the order specified in the mortgage deeds
B) Priority between legal charges depends on the order in which they have been registered
C) Priority between legal charges depends on the order in which the deeds are executed
B) Priority between legal charges depends on the order in which they have been registered
(Correct. This is the rule in LRA 2002, s48)
Where a borrower has created three equitable mortgages, in favour of three different lenders, on consecutive days, how do we work out which takes priority?
A) Priority between equitable mortgage depends on the order in which they are created
B) Priority between equitable charges depends on the order specified in the mortgage deeds.
C) Priority between equitable mortgages depends on the order in which they are protected by registration
A) Priority between equitable mortgage depends on the order in which they are created
(Correct. Equitable mortgages do not have to be registered in order to be created properly. LRA 2002, s28 which relates to equitable interests, says that equitable interests take effect in the order in which they are created)
An equitable mortgage can be (but does not have to be) protected by entering a s32 Notice on the Charges Register. If an equitable mortgage has been protected, what does that mean in terms of priority?
A) It takes priority over all equitable mortgages even those which are created before it
B) It takes priority over ALL subsequent mortgages, whether legal or equitable
C) It takes priority over ALL subsequent equitable mortgages only
B) It takes priority over ALL subsequent mortgages, whether legal or equitable
(Correct. LRA 2002, s29(2) says that an interest which is protected takes priority over all subsequent transactions)
The legal lender has the right to sue the borrower in person for the contractual debt. What is the limitation period for a contractual debt for a legal mortgage?
A) 12 years for capital and 6 years for interest
B) 6 years for capital and interest.
C) 6 years for capital and 12 years for interest.
D) 12 years for capital and interest
A) 12 years for capital and 6 years for interest
(This is correct. The limitation period for a contractual debt is not straightforward: if the mortgage has been created by deed, as all legal mortgages must be, then the period for recovery of the debt stated in the deed (the capital) is twelve years. The limitation period for recovery of interest is six years. What this means in reality is that borrowers can find themselves involved in contractual debt actions many years after repossession, when they may have thought that their troubles were behind them)
What is the purpose of the Pre-Action Protocol 2008?
A) It sets out an expectation that lenders will explore alternative arrangements with borrower before taking possession of residential or commercial properties
B) It sets out an expectation that lenders will explore alternative arrangements with borrower before taking possession of commercial properties
C) It enables lenders to enter residential or commercial premises to prepare them for sale
D) It enables the lender of a commercial property to manage it rather than sell it straight away
E) It sets out an expectation that lenders will explore alternative arrangements with a borrower before taking possession of residential properties
E) It sets out an expectation that lenders will explore alternative arrangements with a borrower before taking possession of residential properties
(Correct. It was intended to reduce the number of residential properties which were being repossessed and the number of families losing their homes. Lenders agreed that possession should be a last resort)
What is the consequence if a lender exercises its power of sale under a legal mortgage, but the sale proceeds are insufficient to discharge the mortgage debt?
A) The lender cannot recover the shortfall
B) The lender may sue the borrower in contract for the outstanding debt
C) The lender can recover a shortfall of capital but not interest by suing the borrower in contract for the outstanding debt
B) The lender may sue the borrower in contract for the outstanding debt
(Correct. The right to sell is a proprietary remedy which coexists with the contractual remedy which does not extinguish it)
Foreclosure is rarely used by lenders, yet it does have an advantage for a borrower who is in serious debt and is in ‘negative equity’. What is that advantage?
A) The foreclosure process takes a long time and buys the borrower time to make alternative arrangements
B) The court can award a sale in lieu of foreclosure
C) All subsequent mortgages and the contractual debt are extinguished
C) All subsequent mortgages and the contractual debt are extinguished
(Correct. The borrower cannot be sued personally either by the lender who forecloses or any subsequent lender)
To whom does a receiver owe a duty to act with due diligence?
A) The borrower
B) The court
C) The lender
A) The borrower
(Correct. This may seem odd, as the receiver is appointed by the lender, but it means that the lender is not liable for the receiver’s negligence)
Why might a lender choose to apply to the court for an order for possession?
A) To avoid possible criminal proceedings following allegations of use of force to gain entry to premises
B) The Pre-Action Protocol of 2008 requires an order for possession to be obtained
C) To avoid allegations of trespass
A) To avoid possible criminal proceedings following allegations of use of force to gain entry to premises
(Correct. The order for possession gives the lender authority to possess and protect the lender from criminal proceedings under Criminal Law Act 1977, s6)
The court has jurisdiction under AJA 1970, s 36 in relation to applications relating to a mortgaged property by the lender. Which of the following best describes the scope of s 36?
A) It enables a court to prevent a lender from exercising its power of sale
B) It enables a court to postpone possession of residential and commercial properties
C) It enables a court to postpone possession of a residential property where an order has been applied for by the lender
D) It enables a court to prevent a lender from possessing residential and commercial properties
E) It enables a court to postpone possession even in cases where no possession order has been applied for
C) It enables a court to postpone possession of a residential property where an order has been applied for by the lender
(Correct. The court can postpone possession of residential properties only and has discretion as to timing and conditions)
AJA 1970, s 36 enables a court to postpone an order for possession provided that the borrower can pay ‘any sums due’ within a ‘reasonable period’. Which of the following best explains this?
A) The borrower must pay the arrears and accrued interest within 24 months of the arrears arising
B) The borrower must pay the whole of the mortgage debt including arrears on a date set by the court before the end of the term
C) The borrower must pay the arrears before the end of the mortgage term
C) The borrower must pay the arrears before the end of the mortgage term
(Correct. This generous interpretation of the effect of s 36 is set out in AJA 1973, s 8 and Cheltenham & Gloucester Building Society v Norgan)
When does the mortgagee acquire the right to possess mortgaged property?
A) Immediately the mortgage deed is signed
B) When the court has granted order for possession
C) When a mortgage payment is missed
D) When interest is in arrears for two months
A) Immediately the mortgage deed is signed
(Correct. This is set out in Four Maids v Dudley Marshall and LPA 1925, s95(4). It is set out expressly in most mortgage deeds, although there will be an acknowledgement by the lender that it will not exercise the right whilst payments are met)
Will a court postpone an order for possession to allow the borrower to sell the property?
A) Yes. Courts prefer borrowers to sell property themselves to save costs and ensure the sale proceeds quickly
B) No. Courts are suspicious of potential delaying tactics by the borrower and will not postpone for this reason
C) Yes, if there is firm evidence of an imminent exchange of contracts
D) No. Courts must act in the lender’s best interests once arrears have arisen
C) Yes, if there is firm evidence of an imminent exchange of contracts
(Correct. This was decided in Mortgage Services Funding plc v Steele. Simply instructing a solicitor will not be enough)
When does the lender’s rights to sell arise, where the mortgage is a capital and interest repayment mortgage?
A) As soon as one monthly instalment has become payable
B) When the legal date of redemption has passed
C) As soon as the ink is dry on the mortgage deed
A) As soon as one monthly instalment has become payable
(Correct. LPA 1925, s 101(1) says that the right arises when the mortgage money ‘has become due’. In an interest-only mortgage, that will happen on the legal redemption date; in a capital and interest repayment mortgage, that happens when any payment of capital has become due)
In which ONE of the following circumstances does the right to sell become exercisable under LPA 1925, s 103?
A) Three months after the lender has served notice requesting arrears to be paid
B) When some of the interest is unpaid for two months or more
C) When two months’ interest payments are outstanding
B) When some of the interest is unpaid for two months or more
(Correct. LPA 1925, s 103(ii) states that some interest must be outstanding for two months. It does not mean that two months’ worth of arrears is owed! The amount can be very small)
A property has two charges secured on it. The second lender sells under the right of sale. Which of the following represents the correct procedure?
A) The second loan is redeemed first, then the first loan, with any surplus being paid to the borrower
B) The first loan is redeemed first, then the second loan with any surplus being paid to the borrower
C) The first loan is redeemed first, then the second loan, and any surplus proceeds are divided proportionately between the first lender and the second lender
B) The first loan is redeemed first, then the second loan with any surplus being paid to the borrower
(Correct. The first lender takes priority and is paid first, even though the second lender actually sold. The surplus proceeds are held in trust of the first borrower)
The lender owes the borrower a duty to take reasonable care to obtain the true market value for the property. Which of the following is the most accurate statements of what ‘true market value’ means in this context?
A) The lender cannot be expected to achieve the perfect sale price, but the price must be in the correct bracket
B) The lender owes a duty to carry out repairs and improvements to the property to obtain the highest possible price
C) The lender must obtain the maximum possible price in that particular market but need not delay sale
A) The lender cannot be expected to achieve the perfect sale price, but the price must be in the correct bracket
(Correct. This was the decision in Michael v Miller)
When selling, which of the following statements best expresses the lender’s duty as to the timing of the sale in a slow market?
A) The lender has an unfettered discretion as to when to sell and need not delay
B) The lender must wait a reasonable time for an upturn in the market
C) The lender must sell immediately the right to sell becomes exercisable
D) The lender must delay the sale if there is any prospect of planning permission being granted
A) The lender has an unfettered discretion as to when to sell and need not delay
(Correct. This was decided in Silven Properties Limited v Royal Bank of Scotland plc)
Part of C’s land is sold by C to D. In the transfer deed there is no right mentioned for C to continue to use the drain which runs under land which now belongs to D. Which phrase best describes this situation?
A) express reservation
B) a licence
C) implied grant
D) implied reservation
E) express grant
D) implied reservation
(This is correct. The right is not in writing and must therefore be implied. It is a reservation as it is a right which C has kept back for himself out of the land sold to D)
Which statutory provision states that an easement granted for three years is capable of being legal?
A) Law of Property Act 1925, s 1(1)(a)
B) Law of Property Act 1925, s 1(3)
C) Law of Property Act 1925, s 1(2)(a)
D) Law of Property Act 1925, s 1(2)(c)
E) Law of Property Act 1925, s 1(1)(b)
C) Law of Property Act 1925, s 1(2)(a)
(This is correct. This section states that an easement granted or reserved for the equivalent of a term of years absolute is capable of being a legal interest in land)
What is the correct term for a benefit which confers on the holder a right to take something from the land? e.g. fish or minerals
a licence
a quasi-easement
C) a profit a prendre
D) an easement
E) a covenant
C) a profit a prendre
(This is correct. A profit a prendre confers on the holder of the right to take anything, such as produce, animals, fish, or minerals, from the land)
Part of A’s land is sold by A to B. In the transfer deed, B is given a right of way over A’s land. Which phrase best describes this situation?
A) an implied reservation grant
B) a licence
C) an express reservation
D) an implied grant
E) an express grant
E) an express grant
(This is correct. The right is express as it is in writing, and it is a grant as it is a right which A creates in favour of B)
For an easement to be created by prescription, how many years of uninterrupted user would the claimant need to demonstrate?
20
(Easements may arise by prescription or ‘long use’. Generally an easement is claimed by prescription where it has been exercised over land for a long time (at least 20 years), yet no express grant or reservation can be traced)
Can a tenant acquire an easement by prescription if it exercises a right without force, secrecy and permission for a 20 year uninterrupted period?
No
(Although the right has been exercised for over 20 years, a prescriptive right can only be created as between two freehold owners)
The freehold owner of a property is concerned about building works taking place on neighbouring land. The building works will block the sunlight to the garden.
Could the freehold owner have an easement for a right to light in the circumstances?
A) No, there is no defined aperture in a garden
B) Yes, if the freehold owner can show 20 years of uninterrupted use of the right
C) Yes, there is a general right to light
A) No, there is no defined aperture in a garden
(There is no general right to light. A right to light must be via a defined aperture eg a window. Rights to light do not attach to gardens or open land)
Which one of these is a negative easement?
A) a right of parking
B) a right to enjoy a garden
C) a right of way
D) a right of drainage
E) a right to light
E) a right to light
(This is correct. A negative easement is an easement which is enjoyed from the dominant owner’s own land and does not involve entering or using the servient land at all)
Part of C’s land is sold by C to D. In the transfer deed there is no right mentioned for C to continue to use the drain which runs under land which now belongs to D. Which phrase best describes this situation?
A) express grant
B) implied grant
C) express reservation
D) a licence
E) implied reservation
E) implied reservation
(This is correct. The right is not in writing and must therefore be implied. It is a reservation as it is a right which C has kept back for himself out of the land sold to D)
A prescriptive easement must be exercised ‘nec vi, nec clam, nec precario’ - without force, without secrecy and without permission.
If a right of way is exercised for 20 years by a freeholder against a freeholder but in breach of a sign on the servient land saying “private, for use of patrons only” will the right have been acquired by prescription?
A) No, the right has been exercised with the use of force
B) Yes, the right has been exercised ‘nec vi, nec clam, nec precario’
C) No, the right has been used with permission
D) No, the right has not be used without secrecy
E) No, the right has not been exercised for the requisite period
A) No, the right has been exercised with the use of force
(This is correct. A prescriptive easement must be exercised without force. Force includes the removal of obstructions, or ignoring the protests of the servient owner, which would include the ignoring of signage)
In the case of P&A Swift Investments Ltd v Combined English Stores Group plc, Lord Oliver sets out a detailed test for establishing whether a right accommodates the dominant tenement. Which one of the following options is NOT part of that test?
A) The right is not expressed to be personal to the dominant owner
B) The right should benefit the dominant land owner even if they were to sell the dominant land
C) The right must not simply benefit a business on the dominant land.
D) The right only benefits the owner whilst that person owns the dominant land.
E) The right makes the dominant land more valuable
B) The right should benefit the dominant land owner even if they were to sell the dominant land
(This is correct. Lord Oliver’s test in essence requires the easement to benefit the land itself, not simply the dominant owner personally and actually, this means that the easement should cease to be of any benefit to the dominant land owner if they sold the dominant land)
Which of the following rights has NOT been judicially recognised as an easement?
A) A right to use a swimming pool
B) A right to park
C) A right to drainage
D) A right to a scenic view
E) A right of way
D) A right to a scenic view
(Judicial recognition is an essential element which must be satisfied if a right is to be capable of being an easement. The court is willing to recognise new easements if they are analogous to existing recognised easements, but a right to a scenic view has been specifically discounted from being an easement because it it not capable of reasonably exact definition - how do you begin to define ‘a scenic view’?!)
Which case sets out the criteria which must be met for a right to be capable of being an easement?
A) Hill v Tupper
B) Borman v Griffith
C) P&A Swift Investments Ltd v Combined English Stores Group plc
D) Tulk v Moxhay
E) Re Ellenborough Park
E) Re Ellenborough Park
(This is correct. This case sets out the four criteria which must be met in order for an easement to be capable in principle of being an easement)
What types of rights may in future be recognised as new types of easements?
A) Negative easements only
B) No new easements can be recognised: the list is closed.
C) Positive or negative easements
D) Positive easements only
D) Positive easements only
(This is correct. New negative easements would unduly restrict the use of the servient land: Phipps v Pears)
Which one of these is not one of the criteria set out in re Ellenborough Park as essential for a right to be capable of an easement?
A) The right must lie in grant
B) The right must accommodate the dominant tenement
C) There must be a dominant and servient tenement
D) There must be no common ownership of the dominant and servient tenements
E) The use of the right must not amount to exclusive possession of the servient land
E) The use of the right must not amount to exclusive possession of the servient land
(This is correct. A right which passes the tests in re Ellenborough Park will nevertheless be disqualified on this basis)
In which of the following cases was a right of way judicially recognised as being capable of being an easement?
A) Regency Villas v Diamond Resorts
B) Attwood v Bovis Homes
C) Phipps v Pears
D) Re Ellenborough Park
E) Borman v Griffith
E) Borman v Griffith
(This is correct. Judicial recognition is an essential element which must be satisfied if a right is to be capable of being an easement)
Which of the following is the most accurate summary of the ‘ouster principle’?
A) The easement must not rob the servient owner of ultimate possession and control of the servient land
B) The easement must not obstruct the servient owner’s normal use of the servient tenement
C) The easement must not leave the servient owner with no reasonable use of the servient tenement
C) The easement must not leave the servient owner with no reasonable use of the servient tenement
(This is correct. The ouster principle is sometimes called the reasonable user test)
Which of the following options correctly describes the disqualifying factors which will prevent a right from being an easement?
A) If the right does not comply with the correct formalities for creation, it will be disqualified from being an easement
B) If the right is not granted for a certain term, it will be disqualified from being an easement
C) If the right grants exclusive possession to the dominant land owner, requires payment by the servient land owner or requires permission from the servient land owner everytime it is exercised, it will not be an easement
D) If the right grants exclusive possession to the servient land owner, requirement payment by the dominant land owner or requires permission from the dominant land owner everytime it is exercised, it will not be an easement
E) If the right does not grant exclusive possession to the dominant land owner, it will be disqualified from being an easement
C) If the right grants exclusive possession to the dominant land owner, requires payment by the servient land owner or requires permission from the servient land owner everytime it is exercised, it will not be an easement
(This is correct. A right cannot be an easement if the user amounts to exclusive possession by the servient owner, if is requires payment by the servient land owner or if permission is required to exercise the right)
Which of the following rights will be disqualified because of exclusive possession?
A) A right to store in part of the shed where the servient land owner is prevented from accessing the shed
B) A right to store in all of the shed on the servient land owner’s land which the servient land owner retains access to
C) A right to park in one of five spaces all day/any day
D) A right to use a heated swimming pool
A) A right to store in part of the shed where the servient land owner is prevented from accessing the shed
(This is correct. The servient land owner is not left with reasonable use or possession and control of the shed, it will be disqualified on the facts)
A man grants a woman a right of way over their lane. The lane is in a very poor state of repair, making it almost impossible to drive across.
Which one of the following statements is correct?
A) The man need not repair the lane but must allow the woman access to do the repairs
B) The man must repair the lane but can claim a proportion of the money back from the woman
C) The man must repair the lane but as this will mean that the man has to spend money, the right cannot be an easement
A) The man need not repair the lane but must allow the woman access to do the repairs
(This is correct. There is no obligation on the servient owner to carry out repairs: Jones v Pritchard)
Which of the following rights will be disqualified because permission is required?
A) A right to use a tennis court where the servient land owner can stop the dominant land owner from playing so that they can use the court
B) A right to use a heated swimming pool
C) A right to store in all of a shed where the servient land owner cannot access the shed
D) A right to park at the weekend only
E) A right to use a tennis court where the servient land owner gives an initial permission but then the dominant land owner does not have to ask again
A) A right to use a tennis court where the servient land owner can stop the dominant land owner from playing so that they can use the court
(This is correct. The essence of an easement is that it is enjoyed as of right. If the dominant land owner has to stop exercising their right when asked by the servient land owner, the right will be disqualified for permission)
If a right fails as an express legal easement for lack of formalities, what is the position?
A) The right will automatically be recognised as an equitable easement
B) The right may be recognised as an equitable easement if it is in writing, signed by both parties and contains all the agreed terms
C) The right will be a personal licence only
D) The right may be recognised as an equitable easement if it is in writing and signed by the grantor
B) The right may be recognised as an equitable easement if it is in writing, signed by both parties and contains all the agreed terms
(This is correct. A failed legal easement may be treated as an enforceable contract to create a legal easement if the failed legal easement complies with the formalities for an estate contract in the Law of Property (Miscellaneous Provisions) Act 1989, s 2)
What are the correct formalities to create an easement for an uncertain term?
A) It must be created in writing, signed by the grantor and witnessed
B) It must be created in writing, signed by the grantor only
C) It must be created in writing, signed by both parties.
D) It must be created by deed
B) It must be created in writing, signed by the grantor only
(This is correct. These are the formalities for a basic equitable interest set out in Law of Property Act 1925, s 53(1)(a))
What formalities must be met in order to create a legal easement of 3 years?
A) No formalities as the easements is created for 3 years or less
B) Contract
C) Deed only (registration is not required as the easement will be an overriding interest)
D) Deed + registration
D) Deed + registration
(This is correct. LPA 1925, s 52 and LRA 2002, s 27(2)(d) respectively provide a deed must be used, which must then be substantively registered)
Which is the definition of a legal easement?
A) An easement granted in a transfer deed will be legal, an easement granted in a lease will be equitable
B) To be legal, an easement must be granted for an uncertain term
C) An easement must be granted for a certain term and grant exclusive possession to the dominant land owner
D) To be legal, an easement must be granted it reserved for the equivalent of a freehold or leasehold term
E) An easement must be granted by deed otherwise it can only be equitable
D) To be legal, an easement must be granted it reserved for the equivalent of a freehold or leasehold term
(This is correct. Section 1(2)(a) of the LPA 1925 makes this clear)
Which statutory provision sets out the type of document which must be used to create an express legal easement?
A) Law of Property (Miscellaneous Provisions) Act 1989, s 2
B) Law of Property (Miscellaneous Provisions) Act 1989, s 1
C) Law of Property Act 1925, s 53(1)(a)
D) Law of Property Act 1925, s 52
D) Law of Property Act 1925, s 52
(This is correct. An express legal easement must be created by deed)
Which of the following rights can be acquired by necessity?
A) Rights of way
B) Rights to park
C) Rights of storage
D) Rights of drainage and sewerage
A) Rights of way
(This is correct. ‘Necessity’ is strictly construed and any other rights, including to use drains and sewers are not absolutely necessary for the enjoyment of land, so the claim would fail)
Sweet v Sommer softened the harsh requirements of ‘necessity’ for easements implied by necessity. Which of these statements accurately states how the case expanded the definition?
A) It recognised a right of drainage as being implied by necessity
B) It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible
C) It recognised rights which were agreed informally but mistakenly omitted from the transfer deed as being implied by necessity
D) It recognised a right of way on foot as being implied by necessity, even though there was already a right of way by vehicle and the land was not inaccessible
B) It recognised a right of way by vehicle as being implied by necessity, even though there was already a right of way on foot and the land was not inaccessible
(This is correct. The case appears to expand the scope to allow rights of way for land which is not actually landlocked)
Which is the most accurate definition of ‘necessity’ in the context of easements implied by necessity?
A) ‘Highly convenient’: the right is amongst the rights a landowner would normally expect to enjoy with land of this nature
B) ‘Necessary for the comfortable enjoyment of the land’: the land can be put to better use with the easement
C) ‘Absolute necessity’: the land cannot be used at all without the easement
C) ‘Absolute necessity’: the land cannot be used at all without the easement
(This is correct. This is the test which was applied in Manjang v Drammeh and Pryce v McGuinness.)
For acquisition by common intention to work, what does there need to be?
A) A lease to imply the easement into
B) A common intention that the premises be used for residential use
C) A specific common purpose in respect of use of the land that cannot be achieved without the easement
D) Land that is otherwise landlocked without the easement
C) A specific common purpose in respect of use of the land that cannot be achieved without the easement
(This is correct. The right must be essential to the agreed common purpose as to use otherwise common intention cannot be used)
Which one of the following statements is NOT a requirement for an easement to be implied by the common intention of the parties?
A) The contemplated use of the land must be very specific and not simply generic domestic or commercial use
B) The original parties must have been landlord and tenant
C) The premises cannot be used for the contemplated purpose without the easement
D) There must be a common purpose or use for the dominant land, which is known to both parties
B) The original parties must have been landlord and tenant
(This is correct. This method of implying easements does not require the original parties to be landlord and tenant. This method would also work if one party had bought part of the other’s land, instead of leasing it)
In which situation will acquisition by common intention NOT work?
A) A right to park claimed by a tenant who occupies premises under a lease granted for a car garage. The premises cannot be used as car garage without the right to park
B) A right of storage claimed by a tenant who uses the land as a restaurant
C) Rights of drainage and sewerage where land sold and transferred is clearly intended to be developed for residential use
D) A right of way required so that an expressly granted right to use a garage can be exercised
B) A right of storage claimed by a tenant who uses the land as a restaurant
(This is correct. Premises can be used as a restaurant without storage, the right is not necessary to achieve the common intention - use of the premises as a restaurant)
What types of easements can be implied by the common intention of the parties?
A) Grants and reservations
B) Grants only
C) Reservations only
A) Grants and reservations
(This is correct. Whilst some methods of implied acquisition operate only on grants, this method is not so restricted)
One of the criteria for the rule in Wheeldon v Burrows to operate is that the right must be necessary for the reasonable enjoyment of the land. Which of these statements is the best definition of ‘necessary’ in this context?
A) The right is absolutely necessary for the land to be used
B) The right is necessary for the convenient and comfortable enjoyment of the land
C) The right increases the value of the land.
D) The right benefits the dominant land owner even if they part with the dominant land
E) The right is essential for the contemplated use of the land
B) The right is necessary for the convenient and comfortable enjoyment of the land
(This is correct. The definition of the word ‘necessity’ in this context is much more relaxed than in cases on easements implied by necessity or by common intention of the parties. The right must enhance the land in some way)
Into what type of documents may easements be implied by the rule in Wheeldon v Burrows?
A) Licences
B) Deeds or contracts
C) Deeds only
D) Contracts only
B) Deeds or contracts
(This is correct. Wheeldon v Burrows has a wider scope than Law of Property Act 1925, s 62 in that it operates on contracts as well as deeds)
What type of rights can be implied as easements under the rule in Wheeldon v Burrows?
A) Reservations only
B) Grants only
C) Grants and reservations
B) Grants only
(This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land)
What is the essential pre-requisite for the operation of the rule in Wheeldon v Burrows?
A) There must be a pre-existing landlord and tenant situation where the landlord occupies one part of the land and the tenant the other
B) There must be a quasi-easement exercised for any part of the land
C) There must be a pre-existing landlord and tenant situation where both parts of the land are occupied by different tenants
D) There must be a quasi-easement exercised for the benefit of the land now owned by the claimant
D) There must be a quasi-easement exercised for the benefit of the land now owned by the claimant
(This is correct. There must have been a single owner who enjoyed the right now claimed as an easement, for the benefit of that part of the land which is now the dominant tenement. The benefit becomes an easement once the ownership of the land is in different hands)
Which of the following is NOT one of the criteria which is needed for Wheeldon v Burrows to imply an easement into a document?
A) There must be a quasi-easement
B) There must be some evidence on the servient land of the enjoyment of the right
C) The right must be necessary for the reasonable enjoyment of the land
D) The enjoyment of the right must be regular
E) The right must touch and concern the dominant land
E) The right must touch and concern the dominant land
(This is correct. This concept is part of the rules on capability which must be fulfilled before we even consider whether the right has actually been acquired)
Which one of the following statements is correct in stating the situations when Law of Property Act 1925, s 62 may apply to imply an easement?
A) The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold
B) The section operates in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold
C) The section operates on quasi-easements to imply an easement into a transfer deed or lease where the land is let for the first time
A) The section operates in situations where land is sold or let for the first time, and in situations where part of the land has previously been occupied by a tenant but the lease is renewed or that land sold
(This is correct. Although case law had suggested that the section only operated where there had previously been a landlord and tenant situation, it is now settled law that the section also operates on quasi-easements to imply an easement into a transfer deed or lease where the land is let for the first time)
What is the most accurate statement of the ‘ordinary operation’ of Law of Property Act 1925, s 62?
A) s62 defines what ‘land’ means.
B) s62 passes the benefit of existing easements to a new owner of the dominant land
C) s62 upgrades permissions to full legal easement when there is a transaction by deed
B) s62 passes the benefit of existing easements to a new owner of the dominant land
(This is correct. The section operates as a word-saving section and makes it clear that any existing rights and easements will form part of the dominant land and will automatically pass to the new owner on a sale)
Into what type of documents may easements be implied by Law of Property Act 1925, s 62?
A) Deeds and contracts
B) Licences
C) Deeds only
D) Contracts only
C) Deeds only
(This is correct. Law of Property Act 1925, s 62 has a narrower scope than the rule in Wheeldon v Burrows in that it only operates on deeds)
What type of rights can be implied as easements under Law of Property Act 1925, s 62?
A) Reservations only
B) Grants and reservations
C) Grants only
C) Grants only
(This is correct. Courts are reluctant to ‘derogate from grant’: in other words they are reluctant to acknowledge a right which was not specifically reserved by the dominant landowner, whether that person let or sold the servient land)
Land is divided for the first time, by transfer deed. A right of way is claimed by the buyer of the land under s 62 LPA 1925.
Which statement best explains if the buyer will be successful in the circumstances?
A) The buyer will be successful providing the land is otherwise landlocked
B) The buyer will be successful because there is a conveyance ie the transfer deed to imply the easement into
C) The buyer will be successful providing the right is continuous and apparent
D) The buyer will be successful providing the right of way is more convenient than any other access way
C) The buyer will be successful providing the right is continuous and apparent
(This is correct. Where there is no prior diversity of occupation (ie the land is being divided for the first time, as it is here by the transfer deed) then the right must be continuous and apparent. This means the right must have been used reasonably regularly and must be obvious on reasonable inspection of the land)
Which one of the following registration processes is needed to make an implied legal easement enforceable?
A) Entry of a Notice in the charges register
B) No registration is necessary because legal easements ‘rule the world’
C) Substantive registration
D) No registration is necessary providing the dominant land owner is in actual occupation of the servient land
E) No registration is necessary it will be an overriding interest (providing the conditions are met)
E) No registration is necessary it will be an overriding interest (providing the conditions are met)
(This is correct. Implied legal easements operate as overriding interest provided that one of the conditions in Land Registration Act 2002, Schedule 3, paragraph 3 is met)
An implied legal easement is an overriding interest: Land Registration Act 2002, Schedule 3, paragraph 3 provided that one of the conditions set out in paragraph 3 are met. Which one of the following is not a condition in paragraph 3?
A) The easement must have been exercised within twelve months of the transfer of the servient land
B) The easement must be held by someone who is in actual occupation of the servient land
C) The easement must be obvious on a reasonable inspection of the servient land.
D) The easement must be within the actual knowledge of the new owner
B) The easement must be held by someone who is in actual occupation of the servient land
(This is correct. This provision is not listed as a condition in Schedule 3, paragraph 3. It relates to equitable interests which are held by people in actual occupation of the land in question. Although Chaudhary v Yavuz suggests obiter that an equitable easement could be an overriding interest based on actual occupation, there is no direct authority on this)
Which statutory provision passes the benefit of an existing easement to a new dominant owner, thereby enabling that person to enforce the easement?
A) Law of Property Act 1925, s 62
B) Law of Property Act 1925, s 52
C) Law of Property Act 1925, s 205(ix)
D) Law of Property Act 1925, s 78
A) Law of Property Act 1925, s 62
(This is correct. The ordinary operation of s 62 operates as a word-saving provision, stating amongst other things that all rights privileges and easements which benefit the dominant land automatically pass on a transfer of that land)
If an equitable easement is not protected by a Notice in the Charges Register of the servient title in accordance with Land Registration Act 2002, s 32, what effect does that have on a new owner of the servient land?
A) The easement is not binding on any new owner of the servient land
B) The easement may still be binding as an overriding interest providing the dominant land owner is in actual occupation of the land
C) The easement is not binding on a purchaser for value of the dominant land
D) The easement is not binding on a purchaser for value of the servient land
D) The easement is not binding on a purchaser for value of the servient land
(This is correct. Buyers and lenders are purchasers for value, and will take the land free of an unprotected equitable easement, although it will still bind a volunteer (or donee), which is someone who is gifted or inherits the land)
Which one of the following registration processes is needed to make an express legal easement over registered land enforceable?
A) No registration is necessary as legal easements ‘bind the world’
B) Entry of a Restriction in the proprietorship register
C) Entry of a Notice in the charges register
D) No registration is necessary the easement will be an overriding interest
E) Substantive registration
E) Substantive registration
(This is correct. An express legal easement must be substantively registered in order to be legal, it is part of the process to create the legal easement. Once substantively registered it will appear in the charges register of the servient land and will automatically bind a new owner of that land)
What is the legal issue in relation to freehold covenants?
A) Whether the covenant is enforceable by and against successors in title to the original parties
B) Whether the covenant is enforceable between the original parties
C) Whether the covenant is personal or not
D) Whether the covenant is positive or negative
A) Whether the covenant is enforceable by and against successors in title to the original parties
(The legal problem here is that there is no contractual relationship between successors in title to the original parties. We look at whether the relevant rules have been observed to enable a successor in title to the covenantee to enforce a covenant direct against a successor in title to the covenantor)
In order for a successor covenantee to enforce a covenant against a successor covenantor, what must the successor covenantee show?
A) That the benefit of the covenant has passed to the successor covenantee and that the burden of the covenant has passed to the successor covenantor
B) That the covenant was binding on the original parties
C) That there is a contractual relationship between the successor covenantee and the successor covenantor
D) That the benefit of the covenant has passed to the successor covenantor and the burden passed to the successor covenantor
A) That the benefit of the covenant has passed to the successor covenantee and that the burden of the covenant has passed to the successor covenantor
(In order for the covenant to be enforced by a successor covenantee, they must show that they have the benefit of the covenant to enable them to sue. In order to enforce the covenant against a successor covenantor they must show that the successor covenantor has the burden of the covenant to enable them to be sued)
Which is the correct definition of ‘covenantor’?
A) The person who receives the benefit of the covenant and owns the servient land
B) The person who receives the benefit of the covenant and owns the dominant land
C) The person who enters into the covenant and owns the servient land
D) The person who enters into the covenant and owns the dominant land
C) The person who enters into the covenant and owns the servient land
(This is correct. The covenantor is the person who enters into the covenant and is subject to the burden of the promise. That person’s land is the burdened or servient land)
Which is the key factor about the covenantee?
A) The covenantee can sue if the covenant is breached
B) The covenantee must observe the terms of the covenant
C) The covenantee can be sued if the covenant is breached
A) The covenantee can sue if the covenant is breached
(The covenantee owns the land which has the benefit of the covenant and is able to enforce the covenant if it is breached)
What is a positive covenant?
A) A covenant which obliges the owner of the land to do something
B) A covenant which restricts what can be done on the land
C) A covenant which decreases the value of the benefitted land
D) A covenant which increases the value of the burdened land
A) A covenant which obliges the owner of the land to do something
(This is correct. A positive covenant obliges the covenantor to “put their hand in their pocket” and do something to comply with the covenant, either spend money or energy. The covenant cannot be complied with by inaction)
What must the successor in title to the dominant land show in order to enforce the covenant?
A) That the benefit of the covenant has passed to them
B) That they hold a freehold estate
C) That the covenant is not personal to the original parties
D) That the burden of the covenant has passed to them
A) That the benefit of the covenant has passed to them
(A successor in title can only enforce a covenant if they can show that the benefit of the covenant has passed to them, as it is holding the benefit of the covenant which enables a party to sue)
What is the overall approach to be taken when interpreting covenants as positive, negative or mixed?
A) Look carefully at the words used. If negative words are used then the covenant is restrictive
B) Look at whether the covenant is expressed to be personal between the parties
C) Look at underlying substance of the covenant rather than the precise words used
C) Look at underlying substance of the covenant rather than the precise words used
(The correct approach is to look beyond the words used to see the effect of the covenant in practice. It is the substance of the covenant, rather that the words used to express it, which is important)
Which one of the following is a restrictive covenant?
A) A covenant to maintain a boundary wall
B) A covenant to use the land for residential purposes only
C) A covenant to build four private houses on the land
D) A covenant to repair and maintain a fence
B) A covenant to use the land for residential purposes only
(This is a restrictive covenant as it restricts the use which can be made of the land)
Which approach is correct in interpreting a covenant not to build any extension to a house without the consent of the dominant owner?
A) This is a mixed covenant which is predominantly negative with a positive condition attached
B) This is a restrictive covenant as the obligation not to build is wholly negative
C) This is a positive covenant as the obligation to obtain consent is wholly positive
D) This is a mixed covenant which can be split into separate positive and negative obligations
A) This is a mixed covenant which is predominantly negative with a positive condition attached
(This is a predominantly negative covenant as the primary obligation is not to build on the land. The positive condition cannot stand alone but is only relevant when read alongside the main obligation)
Which case sets out the test for the ‘hand in pocket’ test?
A) Powell v Hemsley
B) Shepherd Homes v Sandham
C) Tulk v Moxhay
D) Haywood v Brunswick
D) Haywood v Brunswick
(This case sets out the ‘hand in pocket’ test, which states that if performance of a covenant requires expenditure of money, it is a positive covenant)
Which one of the following is a positive covenant?
A) A covenant not to allow a fence to fall into disrepair
B) A covenant to maintain land in an undeveloped state
C) A covenant not to sell alcohol on the land
D) A covenant not to use the land for industrial purposes
A) A covenant not to allow a fence to fall into disrepair
(This is a positive covenant as the substance of the covenant is to maintain the fence in a good state of repair)
