LAND & PROPERTY Flashcards
(104 cards)
If a positive covenant has been validly created in the transfer deed for the ‘maintenance of a shared driveway’ when selling half of a property.
And later, buyer (B1) sold the land adjoining to another person (B2) which contains equally this positive covenant and provided indemnity covenant to B1.
B2 later sold the same land to B3, who also provided an indemnity covenant to B2.
B3 now refuses to contribute toward the maintenance of a shared driveway, but continues to use it.
Can Landlord enforce the covenant against B3 (last buyer)?
YES!
Because a positive covenant’s burden can only pass in law if there is a mutual benefit (Halsall v Brizell).
B3 has a choice to use it. If she does, she must pay. If she does not pay, she must relinquish the benefit of it.
What is the solicitor’s duty when an omission ro register a land charge (for the lender) may result in substantial client loss, despite being an isolated incident?
The partner must explain the situation to the client (bank) and advise it to get independent legal advice.
- Inform the client of the omission.
- Explain the situation transparently.
- Advise the client to obtain independent legal advice.
If a positive covenant has been validly created in the transfer deed for the ‘maintenance of a shared driveway’ when selling half of a property.
And later, buyer (B1) sold the land adjoining to another person (B2) which contains equally this positive covenant and provided indemnity covenant to B1.
B2 later sold the same land to B3, who also provided an indemnity covenant to B2.
B3 now refuses to contribute toward the maintenance of a shared driveway, but continues to use it.
Can Landlord enforce the covenant against B1 (original covenantor)?
YES! (but NOT the best course of action as under mutual benefit B3 can be sued directly).
L can sue B1 bcs the chain of indemnity is not broken.
Test for Mutual Benefit (Halsall v Brizell)
Burden of POSITIVE COVENANT
1- the benefit and burden is conferred in the same transaction.
2- there is a close/clear link between the the burden and the benefit.
3- there is a genuine choice whether to accept the benefit.
Indemnity Covenant
Original covenantor may be able to recover any outlay it has to pay out for a breach by successor if it has an indemnity covenant.
As part of the sale process, the original covenantor (the seller) should require its successor (the buyer) to enter an indemnity covenant promising to comply with the covenant and to indemnify (reimburse) it for any loss incurred as a result of a breach.
An indemnity covenant should then be sought each time the burdened land is sold to create a chain of indemnitues.
Indemnity is a primary obli° and an agreement for a party to bear the costs of certain losses/liabilities suffered by another party in agreed circumstances.
Chain of indemnity
An indemnity covenant should be sought each time the burdened land is sold, directly with the new successor.
This creates a chain of indemnities.
Original covenantor (OC) can ONLY sue their direct successor.
There must be a ‘complete chain’ for indirect enforcement to work.
So each covenantor pays their direct successor.
Indemnity covenant does NOT pass the burden of the covenant, does NOT enable the current owner to be sued by anyone except their predecessor in title.
When will a chain of indemnity be broken
- If the chain is not complete (did not enter in an indemnity covenant with direct successor)
- If chain is complete because a party dies or made bankrupt.
Chain is only as strong as its weakest link!
Two parties enter into an agreement labelled as a ‘Licence to Occupy’.
The agreement contained a right of entry upon giving 24 hours notice for all reasonable purposes. It was granted for a term of 5 years and signed by both parties.
Has a legal lease been granted?
NO
A deed has not been validly executed.
However, It is a lease. Bcs does not have to be labelled as ‘lease’.
It is an equitable lease, the lease requirements are satisfied:
- certain duration
- estate contract
- exclusive possession indicator
L° of a REGISTERED land, sells semi-detached registered house (one of them is owned by the seller, 2nd is sold).
Restrictive covenant: ‘ Not to use the house for business purposes.’ has been entered into in conveyancing.
It has not been protected by notice (did not register).
Buyer gifted it to his child.
The covenant is now breached, the sold house is used for business purposes.
Has the Child notice of the covenant for the burden of it to run in equity?
YES!
A donee is someone who has been gifted or inherits the land.
The basic rule of priority applies to donees which means donees will take the land subject to all pre-existing interests, irrespective of whether they have been protected by registration.
Formalities to validly create: Agreement in writing, signed by the grantor.
The grantor (buyer) signed.
Child is not a purchaser for value. C is a donee.
Registered land: To protect a restrictive covenant, it must be protected by an entry in the charges register of the burdened land.
BUT because the new owner is a donee, Donee is deemed to have had notice of it under LRA 2002.
Registrable dispositions: legal interests
FORMALITIES
- deed
- registration (will not be legal until it is properly registered)
REGISTRABLE DISPOSITIONS
1- express legal easements
> charges register of burdened land: AND
> property register of dominant land
2- grant of a legal mortgage
> charges register of mortgaged land
3- landlord’s right of entry
4- transfer of registered freehold/leasehold
5- grant of lease for more than 7 years
> restriction in proprietorship register
Express Legal Easement - entries in the register
> charges register of burdened land: AND
property register of dominant land
Legal mortgage - entries in the register
Charges register of the mortgaged land
Can also enter as a ‘restriction’ in the proprietorship register.
Grant of lease for more than 7 years - entries in the register
Restriction in proprietorship register
Legal mortgages - entries in the register
- Restriction in charges register (grant of mortgage)
- Restriction in proprietorship register
Equitable interests protected by entry
OVERREACHING
both registered and unregistered land!
- registered land: protected either by a notice or restriction
> as a restriction in the proprietorship register. - unregistered land: cannot be protected but overreaching must occur.
To move the interest of beneficiaries from the land into the monies.
Monies must be paid to 2 trustees min.
If not overreached, the Beneficiary’s interest remains in the land itself
A purchaser for valuable consideration will take land subject to, amongst other things, all EQUITABLE INTEREST protected by entry of a NOTICE in the CHARGES register:
What are these notices?
BURDENED LAND
- restrictive covenants
- estate contract
- equitable easement
What interests must be protected by entry of a NOTICE in the CHARGES register of the BURDENED land?
ALL EQUITABLE INTERESTS
EXCEPT INTEREST IN A TRUST OF LAND
Interests which MAY be protected by entry of a notice
Notice = appropriate to protect interest beyond a change of ownership.
The entry of the notice does not guarantee that the interest has been properly created to be valid.
It simply means that if the interest has been properly created, it will be binding.
- legal leases between 3 to 7 years
- restriction for a beneficiary of an interest in trust of land (for overreaching)
Equitable interests protected by entry of a notice in the charges register of the burdened land
- legal leases between 3 to 7 years (not have to)
- equitable leases
- equitable easements
- estate contracts
- restrictive covenants affecting freehold land
Legal interests must be registered!
Overriding interests
- legal leases of 7 years or less
- equitable interest held by people in actual occupation
- implied legal easements and profits a prendre
Overriding interests - equitable interest held by people in actual occupation
Conditions
1) interest in land
- equitable interest in a trust of land, equitable leases and options to purchase
2) holder in actual occupation of the land
- degree of permanence and continuity of presence; intentions and wishes of that person
Negated by
1- prolonged absence
(summer house secondary BUT not a hospitalisation and unintentional etc)
2- failure to disclose when reasonably expected to do so
3- occupation NOT obvious on a reasonably careful inspection and the buyer did not have actual knowledge
(occupation not obvious & interest not known)
Overriding interest - implied legal easements
Either one of them for validity:
1- new owner knew abt it; or
2- new owner did not know abt it, but obvious on a reasonable inspection of the land; or
3- it has been exercised within 12 months immediately before the disposition.
Implied legal easement also possible via Wheeldon v Burrows, common intention, s62 LPA.
Bcs implied easement takes its status from the doc it is implied into.
Lower airspace
The portion of airspace which is necessary for the landowner’s ordinary use and enjoyment.
In other words, something on your neighbour’s land that overhangs yours is likely to be a trespass as they are, by definition, using space that you could utilise.
Conversely, above that height, the owner has no greater rights than any other member of the public.
If a structure
- overhangs your property so that it is in the ‘lower airspace’, that is a trespass irrespective of whether damage is caused to your property.
- installed object is at the same height as the top floor of the house, it is a trespass as its protrudes into the lower airspace
S62 LPA EASEMENT
ѳ it implies an easement into a conveyance (ie. a deed)
1- GRANT to the claimant
2- PRIOR DIVERISITY of occupation of the DL and SL
3- an INFORMAL PERMISSION OR LICENCE must have been granted to the occupier of the DT to use the SL in some way
(permission when claimant was an existing tenant to preserve the sequence)
4- there must have been a CONVEYANCE (ie. transfer by deed or a legal lease) of the DL
