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leases, mortgages, co-ownership Flashcards

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1
Q

💡 What are the three essential features of a lease?

A

1) Exclusive possession, 2) Certainty of term, 3) Intention to create legal relations.

leases + licences

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2
Q

💡 What is exclusive possession?

A

The right to exclude all others, including the landlord, from the premises.

leases + licences

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3
Q

💡 Can a lease be created verbally?

A

Yes, if for ≤ 3 years and takes effect in possession (LPA 1925 s.54(2)).

leases + licences

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4
Q

💡 What is a licence?

A

A personal permission to occupy land, not creating proprietary rights.

leases + licences

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5
Q

💡 How do courts distinguish between lease and licence?

A

By substance: exclusive possession + term = lease, regardless of label.

leases + licences

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6
Q

📚 Street v Mountford [1985]

A
  • Exclusive possession = lease. Labels and forms do not determine legal nature.
  • facts: landlord claimed the occupier had a licence not a lease to avoid tenant protection
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7
Q

📚 Aslan v Murphy [1990]

A
  • Sham clauses (e.g., landlord keeping key) don’t prevent exclusive possession.
  • agreement stated ‘occuier could use room part of the day’ and landlord retained a key

leases + licences

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8
Q

📚 Antoniades v Villiers [1990]

A
  • courts cpnsider substance over form and any sham clause inserted to exclude possession is excluded
  • couple signed two identical documents labelled licences

leases + licences

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9
Q

📚 AG Securities v Vaughan [1990]

A
  • Different agreements = no unity = licence, not joint tenancy.
  • four occupants signed different agreements at different times

leases + licences

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10
Q

📚 Bruton v London & Quadrant Housing Trust [2000]

A
  • Lease can exist even if landlord has only a licence, provided exclusive possession is granted.
  • Bruton was granted exclusive possession by a trust that only had a licence

leases + licences

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11
Q

📚 Prudential Assurance v London Residuary Body [1992]

A
  • Uncertain term = invalid lease.
  • facts: a lease was granted “until needed for road widening” which granted an uncertain end date

leases + licences

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12
Q

📚 Mexfield v Berrisford [2011]

A

Lease for uncertain term treated as lease for life = converted to 90 years under LPA.

leases + licences

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13
Q

💡 What is the rule from Prudential?

A

A lease must have a fixed or determinable term to be valid.

leases + licences

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14
Q

💡 What does Mexfield v Berrisford allow?

A

Converts uncertain periodic tenancies into 90-year leases if parties are individuals.

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15
Q

💡 How is a lease of >3 years created?

A

By deed (LP(MP)A 1989 s.1) and registered (LRA 2002 s.27).

leases + licences

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16
Q

📜 LPA 1925 s.54(2)

A

Short leases (≤3 years) can be created orally if in possession and at market rent.

leases + licences

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17
Q

📜 LP(MP)A 1989 s.1

A

A lease by deed must be signed, witnessed, and indicate it is a deed.

leases + licences

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18
Q

📜 LRA 2002 s.27(2)(b)

A

Legal leases over 7 years must be registered to take effect at law.

leases + licences

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19
Q

💡 Can multiple people hold a lease together?

A

Yes, if they have unity of time, title, interest and possession.

leases + licences

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20
Q

💡 What are the unities needed for joint tenancy?

A

Time, Title, Interest, Possession.

Co-ownership and trust

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21
Q

💡 Can two people with separate agreements hold a joint lease?

A

No, must be one agreement with unities (AG Securities v Vaughan).

Co-ownership and trust

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22
Q

💡 What is a periodic tenancy?

A

Tenancy that renews automatically (e.g., month-to-month), can be implied by conduct.

Co-ownership and trust

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23
Q

📚 Southward Housing v Walker [2015]

A

Lease of uncertain term for social housing not converted under Mexfield.

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24
Q

💡 Can a licence become a lease?

A

Yes, if elements of lease (esp. exclusive possession) are satisfied.

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25
💡 What is legal co-ownership under LPA 1925?
Legal title must be held as joint tenancy by up to 4 trustees (LPA 1925 ss.34 & 36). | Co-ownership and trust
26
💡 How is equitable co-ownership determined?
Equity follows the intention of the parties. Can be joint tenancy or tenancy in common.
27
💡 How can a joint tenancy be severed?
By notice in writing (LPA 1925 s.36(2)) or by mutual conduct (Williams v Hensman).
28
💡 What is the significance of severance?
Severance converts a joint tenancy into a tenancy in common in equity.
29
💡 What are the three methods of severance in Williams v Hensman?
Unilateral act, mutual agreement, course of conduct.
30
📚 Stack v Dowden [2007]
Presumption of joint beneficial ownership in joint names can be rebutted by evidence of contrary intention.
31
📚 Jones v Kernott [2011]
Court may infer or impute changing intentions for unequal beneficial ownership.
32
📚 Goodman v Gallant [1986]
Express declaration of shares is conclusive unless varied by agreement.
33
📚 Williams v Hensman (1861)
Identified three ways of severing a joint tenancy.
34
📚 Burgess v Rawnsley [1975]
Oral agreement to sell can amount to severance even if sale is not completed.
35
📚 Harris v Goddard [1983]
Divorce petition not sufficient for severance—must show immediate intent.
36
📜 TLATA 1996 s.14
Allows any interested party to apply to court for order relating to sale or occupation.
37
📜 TLATA 1996 s.15
Court considers factors: intentions, minor’s welfare, creditor interests, circumstances.
38
📚 Mortgage Corporation v Shaire [2001]
TLATA gives weight to family occupation over creditor enforcement.
39
📚 Re Buchanan-Wollaston's Conveyance [1939]
No order for sale where co-owners intended to preserve land use.
40
📚 Bank of Ireland v Bell [2001]
Creditors’ interests can outweigh family occupation rights under s.15 TLATA.
41
💡 What happens to a joint tenant’s share on death?
It passes automatically to surviving joint tenants (right of survivorship).
42
💡 Can severance occur after death?
No. Severance must occur during the joint tenant’s lifetime.
43
💡 Can co-owners hold different types of interests?
Yes, in equity one can hold as tenant in common while legal title remains joint.
44
💡 What is overreaching?
When a purchaser pays to at least two trustees, beneficial interests are transferred to proceeds of sale.
45
📜 LPA 1925 s.2 & s.27
Establish overreaching when purchase money paid to at least two trustees.
46
📚 Quigley v Masterson [2011]
Clear intent to sever via litigation sufficient.
47
📚 First National Bank v Achampong [2003]
Secured creditor permitted sale despite disabled occupier.
48
📚 Re Draper’s Conveyance [1969]
Affidavit in divorce proceedings held as immediate intent to sever.
49
📚 Ali v Hussein [2005]
Court postponed sale due to young children living at property.
50
💡 What is the maximum number of legal owners?
Four (LPA 1925 s.34(2)).
51
💡 Who manages the trust of land?
Trustees (legal owners) manage the land for the benefit of beneficiaries.
52
💡 Can minors be legal owners?
No. Minors cannot hold legal title (Trustee Act 1925).
53
💡 What is a mortgage?
A proprietary interest in land given to secure repayment of a loan.
54
💡 What are the two types of mortgages?
Legal mortgage (by deed and registered), and equitable mortgage (e.g. by agreement or defective deed).
55
💡 What is the right to redeem?
The borrower’s right to recover unencumbered title upon repayment.
56
💡 What is a 'clog' on the equity of redemption?
Any term preventing or limiting redemption—void in equity.
57
💡 What is the rule from 'once a mortgage, always a mortgage'?
The mortgage cannot become an absolute transfer of property.
58
📚 Kreglinger v New Patagonia Meat Co [1914]
Collateral benefits allowed unless unconscionable or inconsistent with redemption.
59
📚 Fairclough v Swan Brewery [1912]
Redemption postponed until end of 17-year lease = void clog.
60
📚 Knightsbridge Estates v Byrne [1940]
Long postponement of redemption upheld in commercial context.
61
📚 Cityland v Dabrah [1968]
High interest rate struck down as unconscionable; equity intervenes.
62
📚 Multiservice Bookbinding v Marden [1979]
Index-linked interest upheld; no inequality or bad faith.
63
📜 LPA 1925 s.101
Gives statutory power of sale if mortgage is by deed.
64
📜 LPA 1925 s.103
Power of sale becomes exercisable when default conditions are met.
65
📚 Cuckmere Brick v Mutual Finance [1971]
Mortgagee must take reasonable care to obtain market value.
66
📚 Tse Kwong Lam v Wong Chit Sen [1983]
Sale to connected party must be shown to be in good faith at fair price.
67
📚 Silven Properties v RBS [2004]
Mortgagee need not enhance value before sale (e.g., planning permission).
68
📚 Four Maids v Dudley Marshall [1957]
Mortgagee entitled to possession before default.
69
📚 Ropaigealach v Barclays Bank [2000]
Lender may repossess without court order if mortgagor not in occupation.
70
📚 Palk v Mortgage Services [1993]
Court may order sale to avoid injustice from accruing interest.
71
📜 AJA 1970 s.36
Court may delay possession if borrower can repay in a reasonable period.
72
📚 Cheltenham & Gloucester v Norgan [1996]
Reasonable time for repayment = remaining term of mortgage.
73
📚 Barclays Bank v O’Brien [1994]
Lender put on inquiry when mortgage not for joint benefit.
74
📚 RBS v Etridge (No.2) [2001]
Lenders must ensure independent legal advice where put on inquiry.
75
📚 Credit Lyonnais v Burch [1997]
Extremely one-sided surety transaction = presumed undue influence.
76
💡 What is ‘being put on inquiry’?
When lender is aware a surety may be subject to undue influence.
77
💡 How can a lender protect themselves from undue influence?
Ensure independent legal advice per Etridge guidelines.
78
📜 LRA 2002 s.27(2)(f)
Legal mortgage must be registered to take effect at law.
79
📜 LRA 2002 Sch. 3 para. 2
Unregistered interests may override if holder is in actual occupation.
80
📚 Williams & Glyn’s Bank v Boland [1981]
Equitable interest + actual occupation = overriding interest.
81
📚 Abbey National v Cann [1991]
Pre-completion acts do not count as occupation for overriding interest.
82
📚 Link Lending v Bustard [2010]
Temporary absence did not destroy actual occupation.

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