LL1 Flashcards

Question

When will a property right (i.e. either an estate or interest) be LEGAL?

Answer 1

1. In the list in 1(1) and (2) LPA 1925 2. Meets the formalities

Answer 2

Estates (s1(1)) - freehold - leasehold Interests (s1(2)) - Easements and profits (eg fish) (fixed duration or absolute in possession) - Mortgage charge - Rentcharges (annual fee paid from freehold owner to a TP who has no other interest in land) (only if forever or fixed duration) - Interests arising via statute (interest will be owned by gov agency e.g. charge over land for IHT) - Rights of entry i.e. landlord's right to forfeit lease if term broken; or person with rent charge right to reclaim land if money owed by freehold owner not paid

Answer 3

Estate fee simple absolute in possession - capable being inherited - can pass to any class of heir - ownership not conditional (e.g. when become lawyer - would be equitable) - permanent ownership - immediate right to possess

Answer 4

1. fixed term - right to occupy for fixed period - can be for any duration, provided it is fixed (e.g. 999 years) 2. periodic - automatically extends until one party terminates by notice - regarded as tenancy for each individual period - length determined by period for which rent to be paid for (eg pay monthly, monthly periodic tenancy) (usually it is periodic which become parol)

Answer 5

Buyer gets freehold interest in their flat or house But communal areas are managed by commonhold owners So would usually acquire lease of a flat with no guarantee of any involvement in managing communal areas (Nb freehold not a lease)

Answer 6

Brings lease to premature end (forfeit bcos broken term of lease)

Answer 7

- Express trust - Implied trust - By contract (to create or transfer it) - Failure to comply with formalities to make it legal (falls through the gaps but caught by equity) - Estate or interest granted by someone who only owns an equitable right (they can't transfer a legal interest since they don't have one) - Grant of estate or interest which can only exist in equity (eg not fall in LPA list)

Answer 8

No Only recognises and protects legal title of the person holding it (so trustee) (so equity intervenes - remember equity and law separate)

Answer 9

1. Self-declaration (retains legal title THEMSELVES but declare hold it as trustee for benefit of beneficiary) 2. Declaration plus transfer (declares trust, transfers legal title to trustees, who hold it for beneficiaries)

Answer 10

1. Resulting - not legal owner, contribute directly to PP and get interest proportionate to contribution 2. Constructive - not legal owner, contributes to property OTHER than by making direct financial contribution to purchase - not proportionate but consider parties conduct, financial (direct or otherwise) and non-financial contributions (eg mortgage payments, bills, substantial improvements)

Answer 11

1. Beneficial interest under any type of trust 2. Covenants 3. Estate contract (in between exchange and completion) ^ this includes contracts for sale freehold/leasehold, easements/profits, **option to buy**, and right of pre-emption - where obliged to offer at point decide to sell.

Answer 12

(doesn't create REAL interest in land/legal right) **PERSONAL** right - meaning is right in property other than land and so does not create an interest in land Binding only between original parties and **would not bind future title owner** Capable of authorising anything e.g. right of access / temporary occupation as lodger Can be **revoked at any time**

Answer 13

Deed, which is: - in writing - says its a deed - signed - witnessed by one - delivered s 1 LPMPA 1989 (Signed witnessed delivered I'm deed)

Answer 14

Parol lease exception - can be created orally if: 1. lease for **3 years** or less (IMP! inc periodic leases if period under 3 yrs - so even if Q says its 5 years but pay monthly) 2. **immediate** right to possess 3. pays best rent (ie **market rent**) 4. not charged fine or **premium**, meaning a one-off sum (could be instead of or in addition to rent) Also certain easements (unit 3)

Answer 15

Contract: 1. In writing 2. Incorporate all expressly agreed terms 3. Signed both parties (s2) (WTS) (writing terms signed) (what the Steve !) (means equitable interest until completion) E.g. - Sale of freehold or lease - Grant of lease - Option (to buy) - Easement - Any variations to contract

Answer 16

1. Grant of an estate or interest which can only ever be equitable (eg restrictive covenant) 2. Grant of estate or interest where person only owns equitable right (can't grant a legal right if you only have equitable) 3. Contract to create or transfer LEGAL estate or interest (if use valid contract instead of deed, equitable if clean hands) 4. Trying to grant legal right but failed use valid deed (fail to use valid deed so court considers the document to be a contract, even if they didn't intend a contract, to prevent it failing) 5. Express trust - signed and written - deed not required but may be used 6. Implied trust - don't need to be in writing or signed - arise from conduct

Answer 17

Walsh v Lonsdale - Got a contract instead of deed - Complies with s2 (ie in in writing, agreed terms and signed - what the Steve!); and - Clean hands - (acted justly/fairly/not breached contract - so specific performance can be available) Then will get an EQUITABLE right also NB - if contract to transfer existing legal estate, there will be an equitable interest under ESTATE CONTRACT

Answer 18

Yes Even if parties didn't intend a contract and intended a deed but didn't comply with the formalities, court will construe it as a contract so that there will be an equitable interest and doesn't totally fail If: - doc meets formalities for a contract (written, terms, signed - no need witness); and - clean hands

Answer 19

General rule is yes Exception is IMPLIED trusts as they arise without any formality and simply out of conduct of parties e.g. constructive/resulting?

Answer 20

1. What type of INTEREST is it? (eg obligation not to do something = restrictive covenant, right over another's land = easement) 2. Is the interest CAPABLE of being legal? (ie is it excluded by statute / if easement or profit, must be for forever or fixed duration to be capable - not for indefinite time) 3. Have correct FORMALITIES been used? (legal = deed unless parol) (equitable usually signed writing unless implied) 4. Capable but no deed? (contract and clean hands) (parol lease?)

Answer 21

Trust of land Two or more people own the land at same time (concurrent sharing)

Answer 22

Always as a joint tenancy (ie default is never TiC) Trustees hold as joint tenants (beneficiaries not recognised as holding legal estate)

Answer 23

Only people over 18 If convey legal estate to minor, it is treated as declaration of trust So the land is held on trust and vested in adult with the minor as beneficiary

Answer 24

Max 4 If more than 4, first 4 adults will be trustees No minimum but usually have 2 to make sure overreaching works

Answer 25

All powers of absolute owner of the right eg power to sell or mortgage the land or purchase land for occupation of beneficiary But limited: - must **consult** beneficiaries if 18+ and **interest in possession** (ie entitled to IMMEDIATE interest in land) - comply as far as **consistent** with interests of **trust** with **majority** of beneficiaries wishes - duty to consult only as far as practicable

Answer 26

beneficiaries can hold as joint tenancy or tenancy in common (legal = only JT) tic tacs are shared (unlike legal estate which must be held as JT)

Answer 27

SURVIVORSHIP - automatically and immediately passes to other surviving joint tenant UNDIFFERENTIATED OWNERSHIP - both entitled to whole of property - no shares. Important: - CAN sever joint tenancy in equity so that equitable interests instead held as tenants in common - CANNOT sever joint tenancy in law

Answer 28

ALL four present suggests JT" 1. Unity of POSSESSION (both have RIGHT to possess all of it, even if don't in reality) (required for JT and TiC) 2. Unity of INTEREST (no unequal shares - exact same rights over it) 3. Unity of TITLE (acquired interest via same document) 4. Unity of TIME (received at same time) (PITT) (pitttttball lovers unite)

Answer 29

1. all 4 unities? 2. deed - express declaration? 3. deed - words of severance? 4. does equity presume a TiC?

Answer 30

If deed transferring land to co-owners contains valid express declaration of trust, that is conclusive Will be held as it states in there e.g. "transferred into their joint names as express beneficial joint tenants in equity"

Answer 31

Does the deed transferring land contain words of severance i.e. indicating they will have distinct shares If so, TiC. "To A and B in equal shares" "Between A and B" "Half to A and half to B"

Answer 32

Equity follows law so presume joint tenancy Rebutted if: A) **Commercial** property (would rather it goes to your estate than business partners) B) **Unequal** contributions to purchase price - usually be proportionate to contribution - but fam home, Stack v D suggests JT even if unequal cont C) **Post-acquisition money management** - if fam home - only rebut exceptionally if **one paid WAY more** post-purchase e.g. ALL mortgage payments and majority outgoings) (Stack v Dowden)

Answer 33

**ONLY SERVER EQUITABLE ESTATE** Becomes tenancy in common

Answer 34

DURING lifetime (ie not in will) Formally by written notice; or Informally

Answer 35

- WRITTEN notice to co-owner stating intention to sever - does not need to be SIGNED A) express desire to end ***IMMEDIATELY*** B) be **deemed RECEIVED** by other JTs - either handed or post

Answer 36

A) Registered post - deemed served if not returned as undelivered B) Ordinary post - always served if left at their last known abode or place of business in the UK - even if not received by intended recipient (sometimes need evi from postman than posted it)

Answer 37

1. Disposed via sale, gift, lease or mortgage 2. Disposed via contract 3. Mutual agreement shows intention to sever 4. Mutual conduct 5. Bankruptcy 6. Homicide 7. Post-acquisiton money management (S v D) SEE ONENOTE

Answer 38

Gift/lease/mortgage/sale - s 53(1): in writing and signed Contract - WTS - written, terms, signed - clean hands Both can be to stranger

Answer 39

Just show an **intention** to sever and must be valuable **consideration** Can be **oral** e.g. old widows. became clear she would not marry him. they agreed he would purchase her interest for £750. she later changed mind and wanted 1k. no further action and he died. - there was a common intention to sever. so severed.

Answer 40

Yes automatically Assumed own in separate shares and Trustees in bankruptcy seek bankrupt person's equitable interest Owner who isn't bankrupt has protected share Once bankruptcy finalised, equitable interest goes back to the other co-owner who will hold

Answer 41

if murder other joint tenant then it JT severed automatically (so only get their share)

Answer 42

fam home. joint names. unmarried. no express. presume JT rebut show diff agreement or intention when acquired or later unequal to PP not usually sufficient financial and non-financial are relevant conduct and evi what fair proportions e.g. mortgage payments/childcare

Answer 43

JT becomes TiC and: - if 2 tenants, TiC in equal shares - 3 or more joint tenants, other co-owners continue hold JT of remaining interest and the share is proportionate to number of joint tenants (eg 3 co-owners. 1 severs. they hold their 1/3 of equitable interest as T in C. Others holds 2/3 between them as JTs) IMP: contributions to PP irrelevant to share will get on severance - literally just about number there are

Answer 44

- Person who doesn't own legal **title** contributes to **purchase price** - no evidence gift or loan🎁🏦 - must be of all or part of **PP** at **date** of acquisition 📆 (not mortgages etc) Then hold **beneficial interest proportionate to contribution** made ∺

Answer 45

Two-stage test (Rosset): **1. Agreement AND DR** - common understanding share beneficially - consider discussions (eg will be our forever home - sufficient) - irrelevant if agreement based on deceit (eg lied and said couldn't share jointly cos of divorce) - can agree after purchase - DR linked to agreement (e.g. improvements, bills, unpaid work for owner) - not cos of love and affection OR if above not apply: 2. **Conduct AND direct financial contribution** - no agreement - but conduct suggests common intention share beneficially ^ MUST be **direct payment** towards PP or mortgage - relied on that

Answer 46

- Was it **intended** for non-owning to have an interest? - If so, objectively deduce their intention from conduct - No presumption of JOINT ownership - If no evidence as to intended respective shares, consider **WHOLE course of dealing** - **Financial** contributions **not only** relevant factor - Don't use resulting trusts to determine beneficial interests (remember resulting trust it is proportionate to contribution)

Answer 47

Anyone with an interest can apply to court to use discretion under TOLATA to order: 1. Relating to exercise by trustees regarding their functions; or 2. Declaring nature or extent of person's interest in the property (e.g. disputing whether to sell, if one trustee authorised transactions without others consent, disputes re who occupies trust property and disputes regarding who owns how much)

Answer 48

1. intention of settlor 2. purpose of trust - if purpose can be substantially fulfilled if make the order (e.g. relationship broken down and no minors - more likely order sale) (e.g. living in it whilst finish TCs) 3. application for sale comes from bankruptcy trustee (ie a secured creditor) - interests of mortgagee (lender) takes priority needs of child or ill co-owner 4. welfare of minors who do or may occupy land 5. circumstances/wishes beneficiary or MAJORITY of beneficiaries who are immediately entitled (eg 3/4 of beneficiaries don't want to sell)

Answer 49

1. Refuse sale usually if purpose of the order could still be fulfilled 2. Order a sale usually if purpose for acquiring failed e.g. comm prop - business used for failed 3. refuse sale but make order REGULATING right to occupy property e.g. domestic abuse - person in occupation pay rent to person excluded from occupation due to their violence 4. partition co-owned property (rare)

Answer 50

implied, prescription or express (and deed) must also be for **full length** of leasehold or freehold

Answer 51

USUALLY need a deed (signed, witnessed by one, delivered, says its a deed, in writing) - if complies with s 2 LPMPA (What The Steve Written Terms Signed!) then will be a CONTRACT for an easement so EQUITABLE (Walsh v Lonsdale) BUT sometimes can be implied

Answer 52

Land owner of burdened land grants easement in favour of the buyer e.g. own a farm, sell a barn on land, must provide GRANT of right of way to go over his land to access the barn

Answer 53

Servient = burdened land re easement Dominant - benefitted land re easement

Answer 54

Land owner creates easement in favour of own land when selling to a buyer So reserves/retains rights over land they are selling (land retained becomes dominant and land sold = servient) e.g. drains serving X's house run under Y's house which Y is selling to Tom. X must reserve right to use drains in the transfer

Answer 55

Re Ellenborough Park 1. Dominant and servient land 2. Accommodates (benefits) dominant 3. Diversity of ownership 4. Easement must be capable of forming subject matter of the grant (Subject matter) (Nintendo DS. I accommodated it. I owned it. The subject matter was Nintendogs).

Answer 56

connected normal enjoyment. (e.g. right of way Norfolk can't accom in Longridge obvs cos its a right of way) D&S don't need to be joined but close enough to establish connection. (eg could be separated by another parcel but sufficiently close) Must benefit land not just owner. Consider: 1. Does it improve the **marketability**; and / or 2. Would **ANY owner** of land see it as benefit ? Eg: - pub sign - used to communicate to public the location/inc directions - right to use a communal garden valid - right to put pleasure boats on a canal not - canal business was independent business (good for canal business but not necessarily for other businesses)

Answer 57

Must be identifiable dominant (benefitting) and servient (burdened) land Cannot exist in gross - i.e. only servient land can be identified **Would mean licence only** Must be attached or belong to dominant land HOWEVER !!! PROFIT CAN EXIST EVEN IN GROSS (ie if servient only)!

Answer 58

quasi-easement (can then become easements on sale) quasi diversity !

Answer 59

1. Capable of reasonably exact DEFINITION 🈹 (eg no general right air/light) 2. Must not involve any EXPENDITURE by servient owner 💰 3. Not so extensive that would EXCLUDE grantor from possession of servient tenement ⟺ 4. Law cautious over allowing new categories of NEGATIVE easements ➖ (NEED) Also must be capable grantor (has the right themselves) and capable grantee (eg not too vague like inhabitants of village)

Answer 60

Can't be too vague or indefinite eg - yes to land for recreational purposes 🎯 - no general flow of air 💨 - no right to view 🎑 - no general right to light 🪟 lightonly have if: A) enjoyed via a defined aperture eg a window B) right been **infringed**; and c) amount remaining less than enough for ordinary purposes (considering nature of property)

Answer 61

***servient = suffering *** (eg landowner grants right of way, i dont have to maintain that) **dominant** has right to carry out **repair** works BUT servient: - cannot withdraw right to support 🤝 (eg semi-detached house resting on each others) Random exception for fencing: 🤺 can require servient owner of boundary fence to keep it in repair if **rural area** and imp that farm **animal proof** fences

Answer 62

Can't be so extensive that would exclude grantor completely from possession of servient tenement TIME AND SPACE ⏰🧑‍🚀 Judged based on: - amount of **time** taken; (use for so long that never get to use it) - amount of space used

Answer 63

Maybe - depends on if leaves with reasonable use of land Q of fact and degree Consider intensity of use eg: filled the entire area - less likely easement no limit on number of vehicles or how long stored on land for - not an easement

Answer 64

Only if leaves servient owner with REASONABLE USE of their land (consider if it large enough for purpose) eg claimed right park 6 cars certain hours of week but would cover whole of land - leaves no reas use.

Answer 65

negative easement = prevents servient owner doing something on their land Usually just for: Light 🔆 , Air 🌬️, Support 🤝 Remember: no general right to light - must be from defined thing and restricted beyond amount needed for ordinary purposes AND been infringed

Answer 66

Licence Meaning a personal right. Does not pass on sale. Revoke at any time. Sad!

Answer 67

1. Express grant/reservation 2. Implied grant and reservation: - Necessity - Common intention 3. Implied grant but not reservation: - Wheeldon v Burrows - S 62 LPA 1925 5. Prescription

Answer 68

Applies grants and reservations (sale and keeping it a But where they ARE **LANDLOCKED** Can't access it without easement (landlocked) can't use property AT ALL Defeated if alternative means to access, even if they were dangerous Can only use the easement for the purposes that dominant land used for at time necessity arose

Answer 69

Land conveyed for a common purpose known to parties And right needed for that common purpose to be fulfilled Will be implied into **grant in favour of grantee ** eg: leased ground floor flat to be used as a restaurant, inc obligation that no bad smells, only way to comply was build duct, refused access to install the duct, implied easement of necessity to access property for ventilation shaft

Answer 70

ONLY grants of easements not reservations grant = just sold. reservation = selling whilst retaining a right over sold last. DOES NOT APPLY PROFITS so if Quasi was trying to retain a right to use his wheelbarrow when selling it w v b not apply !

Answer 71

(think quasi k in a wheelbarrow) **QUASI** converted into easements where sell **PART** of land if: 1. continuous and apparent - used regularly / visible on inspection/person conservant) 2. easement existed prior to sale i.e. satisfied Re El except ownership 3. necessary for reas enjoyment of land - alternative less convenient / dangerous 4. in use at time of sale No requirement for a deed. **CONTRACT** fine. e.g. - exercised quasi easements over own land (would be easement but they own) - owned property and selling cottage (so part) - self and guests use of track = quasi-easement - "regularly used" = continuous / apparent and used sale - "avoids busy road" = reas enjoyment - i sell house to luke and retain garden (which has right of way)

Answer 72

Habitual enjoyment Obvs from inspection By someone who may expect to be aware of it if they saw it e.g. surveyor things like drains and pipes

Answer 73

Alternative route: - less convenient - dangerous ^ Lower threshold than necessity

Answer 74

1. Existing **privilege** e.g. informal permission, licence etc 2. **Conveyance** - written doc transferring legal estate - mortgage or lease - not a contract 3. Diversity of occupation (i think before transfer) UNLESS - easements of light; or 💡 - continuous and apparent rights 🙄 (obvs on inspection and regularly enjoyed) 4. Satisfied all Re Ellenborough *(benefits the land/intent to run etc)* - except necessary **reas use** not required (i.e. amount exclusive possession) (saves words for conveyancers get lazy at 62) person claiming right must be the person who the land is then conveyed to (where occupier has been permitted to undertake some activity on the land owned by another (here the landlord) and the owner of the land then conveys the property to the person claiming the benefit of the right.)

Answer 75

1. common law 2. doctrine of lost modern grant 3. Prescription Act 1832

Answer 76

1. 20 yrs for easements or 30 yrs profits 2. exercise CONTINUOUSLY - user of right can be diff successive owners - can be intermittent (ie can only exercise the right from time to time) - eg using 6 time over 35 years counted as continuous 3. as of RIGHT i.e. without: - FORCE (force would inc removing obstructions or ignoring protests) - SECRECY (reasonable servient owner would have opportunity to discover it) (eg dumping sewage at night would be secret - even if no attempts to conceal) - PERMISSION as in must NOT have permitted !!! (even if just tolerate without objecting, also whether oral or written)

Answer 77

Grant of easement presumed if enjoyed continuously as of right since time immemorial ie 1189 Presumed that user for 20 years or more is proof of use since 1189 Rebut presumption if show at some time since 1189: - right not exercised; - could not have been exercised; or - **common ownership** at some point

Answer 78

Remember wording to help remember: total fiction and last resort Presumes easement if used CONTINUOUSLY as of right 20 years Use where cannot relyon common law or Prescription Act because - **common ownership** at some point since 1189; or - gap in use **exceeding** one year at some point since 1189 ^ but still need to have enjoyed continuously and diverse ownership for 20 years before action (so e.g. in 1950 there was a10 year gap in ownership but owned for 20 years so it's fine)

Answer 79

common ownership for 20 years (or 30 years for profits) Interruptions in use **UNDER one year** permitted, as long as been uninterrupted for last 20 years (1 yr OR MORE - try doctrine modern grant)

Answer 80

1. Common law - diversity ownership - right was not/could not be exercised 2. Prescription Act - interruptions UNDER 1 year, even if WITHIN last 20 years permitted 3. Doctrine Lost Modern Grant - gap ownership 1 year or use, but not in last 20 years - common ownership at some point, but not in last 20 years

Answer 81

Two FREEHOLD owners (not if given it to a tenant)

Answer 82

NO Not listed s1(2) LPA so equitable only

Answer 83

Writing and signed So can create by contract But often created by deed (bcos made on sale)

Answer 84

Covenantee = recipient of promise / benefits Covenantor = makes the promise and burdened EEEk I get a benefit!

Answer 85

Original covenantor/covenantee are parties to contract So liability of original covenanter has potential to last forever (after sale of land)

Answer 86

Burden cannot pass at law Only at equity - if Tulk v Moxhay applies (so must be restrictive)

Answer 87

Tulk v Moxhay requirements Covenant is: 1. Restrictive 2. Made to benefit identifiable dominant land owned by covenantee (eg seller retains ownership of the benefitting land - e.g. own 2 houses next door to each other and sell one) 3. **Touch and concerns** dominant 4. Intent to burden servient; (either express or implied) (implied if no contrary intention expressed) 5. Owners have **notice** of the covenant (notice varies registered vs unregistered) - notice charges register

Answer 88

Covenant must: - benefit the land itself not the owner (so if separated from the land, would no longer be of benefit to them) ⛰️❌🏌️‍ - Affect nature, quality, mode of user or value of the dominant land; AND 🎄 - not expressed as personal to one specific dominant owner 1️⃣

Answer 89

1. Lease instead of sale - restrictive and positive covenants always bind successor tenants 2. Indemnity covenant - future buyers not bound but original covenantor will be - creates chain of indemnity - can sue only the person who gave you an indemnity - if one missing/bankrupt, falls to last person in chain 3. Doctrine of mutual benefit and burden (Halsall v Brizell) - sep card

Answer 90

If wish to take advantage of a service/facility which benefits your land, must comply with any corresponding obligations e.g. contribute maintenance costs 1. Clear link between benefit and burden 2. Successor's in title have choice to accepting burden Allows owner of burdened land to prevent covenant if not complied e.g. - grants a right of way subject to buyer paying towards maintenance - assuming new buyer chooses benefit, if she doesn't pay, we'll take it away

Answer 91

1. Clear link between the benefit and the burden (eg between RoW and maintenance costs) 2. Covenantor successors in title must have been given opportunity to accept or reject the burden (fact they decide to accept the benefit will be enough)

Answer 92

Annexation Or Assignment (applies to restrictive and positive)

Answer 93

1. Annexation - if original covenantee sells, their successor in title can enforce if: a) touch and concern b) intended benefit run with (by including clause or implied if not) c) original covenantee had LEGAL estate in benefitting land d) buyer takes LEGAL ESTATE 2. Express assignment - writing and signed by assignor (original covenantee) to assignee on transfer - same time as transfer - written notice of assignment given to person with covenantor (burdened)

Answer 94

Annexation - because permanently attached covenant to the benefitted land * not from textbook probs don't need to know

Answer 95

Covenant must: 1. touch concern 2. intend benefit pass - "the buyer and their successors in title covenant with the seller and their successors in title" - or implied 3. Covenantee legal ESTATE in benefitting land 4. Buyer legal TITLE in it - inc LEASE

Answer 96

Can pass via law AND/OR equity if: - Express assignment at time of the transfer of land (ie sale) - In writing, signed by assignor and written notice given to person burdened (think of it like a uni ASSIGNMENT - at uni studied law AND equity - express assignments signed cover page / in writing - gave diss supervisor notice) Good to know it passes via law and equity this way !

Answer 97

Annexation (express, implied or statutory) Assignment Building schemes

Answer 98

Named the BENEFITTING LAND itself (not JUST "successors in title") *no need postcode* Clear words of annexation i.e. "for the benefit and protection" AND "each and every part" Covenant then annexed (applied to) whole of dominant land, no matter how extensive and even if later divided e.g. Luke sold part of land to 21 Cadley Gro. Retained 21 Cadley Av. "**For the benefit and protection** of **21 Cadley Av** and **each and ****every part thereof** the Buyer and his **successors in title** covenants with the Seller and his **successors in title** to use the Property only as a private dwelling house." (no need to do e.g. - Lucy own 2 and 4 Woodlands G - live at 2 and sell 4 to A - transfer to A "for benefit and protection of each/every part 2 Woodland Grove, owner of 4 and successors in title covenant to use only as dwelling" - Lucy sells 12 to B - B is entitled to benefit because dominant land clearly identified as number 12 and clear intention that annexation to the land as whole

Answer 99

Rare Courts imply If annexation obvs intended so injust to ignore Intention must be shown in transfer considering all circumstances Always apply statutory annexation first

Answer 100

Statute automatically annexed a freehold covenant to each and every part of covenantee's retained land Provided covenant was: 1. created after 1925; 2. **touches and concerns** the land; and (i.e for benefit of land not owner) 3. benefitting land identifiable (even if have to use external evidence) 4. **s 78 not excluded** in transfer Diff from E.g. Luke owned 21 Cadley A and 21 Cadley G. Sold 21 Cadley G to Steve. But instead of saying for benefit of 21 Cadley A he said "For the benefit and protection of the Seller and his successors in title the Buyer covenants with the seller and his successors in title not to use 21 Cadley G for any purpose other than dwelling house." ^ - even tho benefits the retained land, refers to benefit for the seller ^ - so statutory instead of express bcos: a) post-1925 b) benefits land/not expressed as personal (think since says successors in title) c) land identified in transfer

Answer 101

Provides mutual obligations, including positive covenants, on buyers of plots ^ the same restrictions benefit all the lots Characteristics/help identify building scheme: - defined area where title purchased from common owner - each property burdened by covenants - covenants intended mutually enforceable between several owners - can be positive cov e.g. Elst Park. All bought from Story H. They all burdened by need to upkeep the grass. But all receive benefit of that.

Answer 102

No, only at equity (if Tulk v Moxhay)

Answer 103

Yes - at law and equity So when original coventee(eek!) sells dominant land, their successor in title needs to demonstrate they have the benefit If new owner of the servient land, the new owner of dominant land could pursue claim in equity against them (but not legal - as burden not pass at law/just the benefit)

Answer 104

No - not at either law or equity Means original covenantor remains bound and new one doesn't (why want indemnity)

Answer 105

Yes Common law AND equity (CL = annexation or assignment) (equity = annexation, assignment, building schemes)

Answer 106

1. Damages - usual remedy - can be against successor - may inc sum for future loss 2. Specific performance - **only against original covenantor** - not successor - so if original has sold - can pay but may not be able to perform (cos no control over the land/access etc)

Answer 107

Injunction or damages in lieu Injunction - apply if anticipate breach or as response to current breach - Equitable / discretion - Damages instead if: 1. only **small** breach to their rights; and 2. can estimate in **money terms**; 3. can be adequately **compensated** by money; and 4. injunction would be **oppressive** Oppressive eg if homes built and occupied No injunction if acted inequitably or delayed taking action Original convenantee (benefit) could also enforce via PRIVITY of **contract** - but damages only - unlikely adequate

Answer 108

Burden - equity but not law (if Tulk v Moxhay) Benefit - law and equity

Answer 109

- Express release - Common ownership (automatically release if both no longer diversity ownership) - Application to Lands Chamber (restrictive only) - Insurance

Answer 110

Applies to both **Deed** Signed by **CURRENT** owners of dominant and servient land Usually payment or some value Can use to modify or release

Answer 111

Servient and dominant land come under common ownership and covenant automatically extinguished (don't think term 'unity of seisin' that imp)

Answer 112

Restrictive covenant only. Show one of below: ***obsolete and impedes are great words !!!!!*** 1. **Obsolete** (not used) 🏚️ 2. **Impedes** some REASONABLE use of land and: - no practical benefit to person should benefit; or 🙅‍♂️ - contrary to public interest 🚻 ^ and money compensates 💰 3. Those benefitting **expressly or impliedly** agreed to discharge; or 💬 4. Discharge **won't harm** interests of those entitled to benefit 🙂

Answer 113

Apply to court to establish their identity

Answer 114

Restrictive covenants only Servient owner gets it So that if the dominant owner tries to enforce a breach of covenant, insurer accepts to take the financial hit

Answer 115

That benefit has passed in equity (bcos you are claiming in equity, you need to establish there is a benefit and a burden in **equity**) So u have a right to claim aginst the person who has the burden because of some form of annexation

Answer 116

Granted by BORROWER in favour of lender as security for loan But the lender still has legal estate So it is a third party right over the land

Answer 117

Yes (listed in s1(2)) Terms mortgage and charge used as same

Answer 118

Deed (so must be written, signed, witnessed. by one, delivered, says it's a deed) If formalities not complied with, may recognise equitable mortgage under Walsh v Lonsdale (contract, WTS and clean hands)

Answer 119

Yes, - in writing; and - signed (e.g. co-owner has equitable interest under a trust and wants mortgage for it) ^ ahh i get it so the mortgagor would have the equitable but not legal interest - so doesn't need to be by deed because not legal

Answer 120

Avoiding a course of action which would increase the burden on the borrower

Answer 121

* possession * the power of sale * debt action * appointing a receiver * foreclosure

Answer 122

Foreclosure Power of sale

Answer 123

Right of possession (usually before power of sale or appointing receiver)

Answer 124

Immediately Borrower does not to be in default (in practice only really exercise when in default and usually in conjunction with other remedies)

Answer 125

- Taking physical possession (ousting borrowers); or - If property let, directing that tenants pay their rent to the lender instead of borrower

Answer 126

Always if occupied as dwelling-home Otherwise if can retake possession without threatening or using **violence**, no court order required Usually no order if: - property empty; or - let out so directing payments made to them (otherwise you cannot threaten violence and so will need a court order)

Answer 127

Comply pre-action protocol Promotes open dialogue to attempt resolve arrears Includes considering selling property and re-scheduling debt to avoid the proceedings - weighted in favour of borrower

Answer 128

Ask court to exercise its discretion to: - **Adjourn** (ie temporarily end) proceedings; or - If possession order made, **suspend** or **delay** the possession Only apply if: - lender started **proceedings** - **dwelling**; and - likely to pay any arrears in **reasonable** period (reasonable period = remaining period of mortgage) Must be able to prove via a financial plan

Answer 129

They can use the income to pay the debt owed But they must; - account to borrower for any sum beyond what is owed to them - manage property with due diligence and if don't, account for any income would have received if had managed properly

Answer 130

Appoint receiver Don't have strict duty to account to borrower And liability is passed to receiver as the borrower is solely responsible for acts of receiver (so no recourse to lender for receiver's acts/omissions)

Answer 131

Power of sale must: 1. Exist - implied into mortgage unless excluded 2. Arisen - legal date for redemption (ie payment) passed - (usually) one month into mortgage 3. Exercisable - may state circumstances in mortgage - otherwise, rely on one of below: A) Not repaid loan within 3 months of notice being given; B) 2 months interest due; or C) Breached mortgage term (other than to pay money or interest on it) eg repair

Answer 132

Lender must ensure power arisen and become exercisable Buyer only needs to check power exists and arisen (don't need to check it's become exercisable)

Answer 133

Borrowers: 1. act in **good faith** and not cheat them 2. reas care to obtain true **market value** - if fail to obtain, account for difference (to buyer/anyone else with equity redemption ie subsequent lender) - onus proof on borrower don't need to delay sale to get the max price

Answer 134

Once fully repaid debt, to recover assets which are subject to the debt So if power of sale exercised, must account to borrowers for any **extra amount received from sale** (in excess of debt owed) Doesn't apply if lender sold via **foreclosure** as equity of redemption is extinguished

Answer 135

takes whole estate of borrower free of any estates or interests which the lender took priority over But subject to any interests which lender did not have priority over

Answer 136

**Trustee** of the proceeds Must use to pay: - costs of redeeming any mortgages which had priority over their own - their expenses of sale - their own mortgage; and - any balance to person entitled under equity of redemption (ie buyer and/or subsequent lender)

Answer 137

can use debt action to recover based on borrower's covenant to pay Legal date for redemption must have passed (usually one month into term) Limitation Act - can only recover within: - 6 years for recovery of interest; and - 12 years for recovery of capital ReDEBTion or redemption!

Answer 138

If exercised power of sale but proceeds don't repay the debt in full Can recover shortfall

Answer 139

Property produces income e.g. lets tenants Power must exist, have arisen and be exercisable

Answer 140

Must appoint in writing Up to lender who they appoint

Answer 141

Demand and receive **income** from property. Must use the income to pay: - outgoings on property (eg bills) - interest on prior mortgages - insurance, repair and own costs - interest on current mortgage - capital on current mortgage - balance to borrower

Answer 142

Not under statute But terms of mortgage usually extend the powers of receiver to include power of sale

Answer 143

Agent of BORROWER Means borrower is solely responsible for acts/omissions of receiver So no liability for lender

Answer 144

To: Lender, borrower and anyone with equity redemption (ie subsequent lender) Duties (SAME AS LENDER): - ensure no own-interest conflict (eg purchase property themselves) - good faith - reasonable competence - reas care obtain true market value when sell - no obligation to try and increase its value

Answer 145

Apply to High Court Once legal date redemption passed Nisi absolute etc sounds fancy like HC

Answer 146

Apply HC for each. Both are court orders. 1. Foreclosure Nisi - accounts re amount owed prepared; and - period of **6 months** (usually) to pay. THEN 2. Foreclosure Absolute - If not paid, **vests** **title** in lender - Extinguishes **equity of redemption** held by borrower (no longer have a right in property if repay debt)

Answer 147

Lender entitled to keep surplus (makes sense why foreclosure absolute extinguishes equity of redemption) If worth less (negative equity), borrower released from liabilities and have to take the hit So lender **would not use if worth less** esp considering how much of a faff it is / court proceedings etc - could instead do power of sale and debt claim if want them out - or receiver/debt claim

Answer 148

- Court **discretion** re-open foreclosure proceedings, even after ***absolute*** order; or - If **dwelling**, borrower can apply to **adjourn** (ie POSTPONE !!!) proceedings; or - Application by anyone with equity of redemption for **JUDICIAL SALE** - will preserve equity of redemption in favour of borrower 👨‍⚖️ (e.g. another mortgagee) (^ makes sense. would not want to lose equity of redemption as means u wouldn't get anything.)

Answer 149

No - will extinguish the mortgage and leave with no right to bring debt action (better to exercise power of sale if lower value as leaves you with right to pursue debt action)

Answer 150

Freeholder = as long as like Tenant = term shorter than their own term

Answer 151

A) over 3 yrs: Deed to be legal (signed witnessed delivered I'm deed) B) 3 yrs or less parol lease which requires no formalities/can orally create if: 1. immediate right to possess / enjoy 2. best rent can reas obtain (ie market rent) - landlord not charge fine or premium (ie one-off capital sum)

Answer 152

1. must be for duration permitted for a leasehold estate. i.e. fixed ascertainable duration - start and end date (eg could not be period of war) 2. The grant must give exclusive possession. 3. The grant must have the correct formalities DEF

Answer 153

Substance of agreement - not simply its form. Only when 3 requirements are met, a lease has been created (even if the agreement is labelled a licence).

Answer 154

(left hand side = lease) - proprietary vs personal right - can be assigned to new tenant vs cannot - statutory protection vs not can revoke whenever - exclusive possession vs exclusive occupation

Answer 155

create lease for 90 year term and would end on death of tenant /how described in agreement "this lease shall last for 90 years"

Answer 156

No Can still bring to premature end even if there is a break clause

Answer 157

- exclude all inc landlord; - does not need to be in occupation to enjoy possession even if lease says no EP, if in reality occupier has general control of the property then there is EP - LL 🔑 does not negate EP e.g. no general control where in hostel and terms have conditions like can enter at any time / change room without notice / can't invite friends

Answer 158

No - licence. Ends when employment ends. E.g. farmworkers (employment = licence. Employment and licensing!)

Answer 159

(joint and exclusive possession - do the agreements need to read together?) Lease - agreements INTERDEPENDENT - couple benefit. (have to read together) eg identical terms/signed same day/sharing same bed Licence - H dawg. Licencesed baby. agreements INDEPENDENT and not confer EP on any one party eg different dates, different rents, bedrooms occupied on rolling basis Consider circumstances to see if intention was joint and exclusive occupation

Answer 160

Not strictly But supports view that parties intended a landlord / tenant relationship

Answer 161

Tenant’s covenants: * rent * contribution to insurance * repair * alterations * alienation. Landlord’s covenants: * quiet enjoyment * insurance.

Answer 162

Relate to LL only: 1. quiet enjoyment 🤫 2. obligations in respect of fitness of the property 🏋️‍♀️

Answer 163

- If dwelling house, keep all below in repair: A) **structure**/exterior B) water/gas/electricity/sanitation **installations** C) **heating**/water heating installations Only liable if been **notified** of actual disrepair.

Answer 164

comm prop and resi: - not absence of noice, but **not regular and excessive** resi only (PEA 1977): - can't **unlawfully deprive** of occupation - offence to interfere **peace / comfort** with intention of causing them to give up occupation (❤️ this - Molly !)

Answer 165

1. Open contract position - no covenant, tenant can do with lease as wish 2. Absolute prohibition - don't do anything w lease - statute does not alter 3. Qualified covenant - don't deal with lease w/o consent - statute converts to fully qualified - those written application response rules apply (see PP) 4. Fully qualified cov - don't deal with lease w/o consent, which won't unreas withhold

Answer 166

Old lease if executed prior to 1 January 1996 New otherwise Think created BEFORE 1996 then old - Hannah just on the cusp of not being old

Answer 167

- Exclusive possession - But liable to - pay rent - Has lease vested in them (this isn't that deep minor point in textbook!)

Answer 168

Breaches of all real covenants in the lease Real covenants = positive and restrictive covs which touch and concern land. (i.e. benefit land not owner, affect nature/quality use and not personal) e.g. rent taxes repair but NOT a personal promise by T1 to landlord (eg to give red rose first day every month)

Answer 169

Benefit and burden of LL's real covenants (touch and concern) pass to new landlord So new LL can sue original or current tenant for breaches, as original LL would have

Answer 170

ALL of them unless expressed personal (don't need to touch/concern) *think it is all except haed rent* So they take benefit and burden And assigning tenant released any liability s5 ltcta 1995

Answer 171

New LL takes burden and benefit of all covenants unless they are personal Outgoing LL must secure a release by following ss 6 and 8 LTCA 1995 criteria or remains liable or original LL can inc clause in original lease that their liability ends if sell If they haven't been released, tenant can pursue either or both.

Answer 172

Outgoing tenant entering AGA i.e. they agree that incoming assignee will perform covenants and if don't, LL can take action against original tenant (who gave the AGA)

Answer 173

Primary obligation Means LL can pursue the former tenant without trying to take action against the current tenant

Answer 174

if the assignee assigns their interest - AGA only guarantees performance by immediate assignee (so whoever has assigned to current tenant) (i.e. if AGA is with T1 original tenant, who assigned to T2, but T2 then assigns to T3, then can't use T1's AGA to sue T1)

Answer 175

If such term in AGA can require original tenant to enter into a new lease with them if disclaimed trustee bankruptcy or liquidator

Answer 176

Only if: - lease contains covenant against alienation (ie selling their lease) without LL's consent; and - either reasonable to seek AGA or, if commercial lease, is condition of landlord giving consent to assignment

Answer 177

New lease: 1. take action at common law: if discharged liability of another, can seek to recover it from that person 2. express indemnity given by that assignee (no implied indemnities for new leases - makes sense cos no privity contract so may not be liable unless AGA) ^ but not implied Old lease: 1. common law as above 2. express indemnity in deed of assignment 3. if no express indemnity, implied into any assignment for value by statute

Answer 178

s 17 Landlord and Tenant (Covenants) Act 1995 serve default notice re intend recover fixed sum within 6 calendar month of it being due (e.g. if not paid 7 m rent, could only recover 6) If former tenant or former tenant's guarantor then pays, can request overriding lease from LL. (sep card in PP but only former tenant's guarantor if: - old lease (even if guaranteed tenant assigns, likely liable); or -new lease only if required to guarantee outgoing tenant's obligations under AGA - means indirectly guarantee incoming T)

Answer 179

When? LL serves default notice under s 17 Act on former tenant, who pays Overriding lease is: - same duration as original lease **minus 3 days** - on **same terms** as original lease; and - granted by LL to former tenant EFFECT: former tenant becomes LL to defaulting assignee, but must pay rent to LL and comply with original covenants.

Answer 180

1. Debt action 2. Commercial rent arrears recovery 3. Forfeiture (and rent deposit deed/guarantors)

Answer 181

- not a damages claim / does not bring to an end - recover in High or County Court - Limitation period of 6 years - can bring against current tenant or former tenant - former tenant must be served default notice - since debt claim acknowledges existence of lease, may waive right to forfeit

Answer 182

- enter property and seize and sell current tenant's goods - only available against tenant in possession - at least 7 days worth of rent due - give 7 days notice of intention to enter - must use enforcement agent can enter/remove goods - goods will then be bound to landlord - 7 clear days notice of sale and at public auction - rent paid from proceeds of sale - tenant can challenge notice in court - NO COURT ORDER REQUIRED - Goods used for the tenant's personal use, or their business/profession, are exempt up to a total value of £1,350. - Only goods up to the value of the rent arrears can be seized.

Answer 183

- can only recover rent (no insurance payments etc) - does not bring lease to any end - acknowledges existence of lease and so may waive right to forfeit - might not be worth it if the business does not have anything of value

Answer 184

- gives LL right to enter and re-take possession, thus terminating the lease - only against tenant in possession - must be expressly reserved in lease - common law requires formal demand to be made but lease can disposense of this - lease can vary on how many days rent must be outstanding but a lot fo flexibility The Law of Property Act 1925 stipulates that landlords must serve a formal demand for all the rent due before starting forfeiture proceedings for rent arrears, unless the lease expressly says that such demand isn't required.

Answer 185

If right to forfeit arisen but their own conduct deemed to have waived breach Implied waiver if recognised continuing existence of lease despite breach inc by accepting or DEMANDING rent - inc by CRAR/debt but not waived if LL shown no longer regard lease as substisting eg possession proceedings

Answer 186

Must make formal demand by showing up at premises on due date (unless lease exempts) Then: - peacefully re-enter premises; or - obtain possession order in courts Need possession order if dwelling Criminal offence if reposess via force

Answer 187

property or any part of it used as a dwelling

Answer 188

1. Pay all arrears and costs before trial, court generally must grant relief 2. If LL re-entered with a court order, can apply for relief within 6 months - court's discretion 3. If non-resi and LL re-entered w/o court order - no time limit - court's discretion (fair that no time limit since never been ordered by court so they had less control over it!) Effect: - Tenant retakes on terms of original lease, as if no forfeiture

Answer 189

* Damages * Specific performance * Forfeiture * Self-help remedy (Jarvis v Harris)

Answer 190

ordinary contractual rules so limited to reasonably forseeable consequence of breach if for repair covenant - get diminution in value, not cost of repair (what worth then vs what worth now - NOT how much repairs cost) explain to client: loss in value to property based on repairs, rather than the cost of repairs. likely not to recover in full.

Answer 191

Former tenant if old lease or age; or Tenant in possession; or Both

Answer 192

DAMAGES: - over 7 years. over 3 yrs left. - notice served that right serve counter-notice - 28 days to serve counter-notice - if counter-notice served, LL can't take further action w/o leave of court (if less 3 yrs/7yrs etc, no need to serve notice) (NB if forfeiture: - if lease more than 7 years with 3 years or more left on the lease before expires, serve s 146 LPA notice on tenant (specify breach, require remedy (if capable); and require compensation (if desired)).

Answer 193

No Rarely used as damages adequate Discretionary and against **tenant in possession** only For breach cov other than non-payment of rent Perhaps if: - no forfeiture or self-help clause - damages inadequate cos deterioriating

Answer 194

Same: - peaceful re-entry or court order if dwelling - ends lease - must be reserved in lease - must not have waived Different: - must serve s 146 notice: 1. Specifying breach 2. Require remedied in reasonable time (if capable of remedy); and (if breach alienation cov - not capable of remedy - so no need require) 3. Require compensation if desired - if capable of remedy and tenant remedies in reasonable timeframe, no forfeiture - if doesn't comply, can forfeit. T can apply for relief. ^ if over 7 years and over 3 years left, right to serve counter-notice 28 days inc in notice AND disrepair.

Answer 195

can seek relief - - court may grant as sees fit - but must have clean hands - if court grants, lease continues as if no forfeiture nb if over 7 years / over 3 years and served counter notice within 28 days can only proceed w court order

Answer 196

Ceases to exist BUT Subtenant can apply for relief, even if original tenant cannot If get relief, court vests head lease in sub-lessee and on terms court sees fit

Answer 197

* specific performance/injunction (rare as damages usually adequate) * damages (apply same as LL bringing against tenant i.e. ordinary contractual rules) * self-help

Answer 198

Not entitled to withhold rent, but: 1. common law set off - can notify LL that repair needed - if LL fails, can carry out themselves and withhold rent until LL repays for costs of repairs OR; 2. equity set off - if tenant withholds rent and LL sues, equity may set off tenant's claim set off against liability for rent - but 2 claims must be connected (i.e. tenant's claim arise directly from reli of LL / tenant) leases can exclude effect of both ^

Answer 199

* effluxion of time; * notice to quit; * break clause; * surrender; * disclaimer; * frustration; * repudiatory breach; * merger; and * forfeiture.

Answer 200

by either LL or tenant to end PERIODIC tenancy. general rule is one full period's notice, but: yearly tenancy - minimum 6 months notice. **tenant lives there - minimum 4 weeks notice.** expires at end of next completed period. e.g. monthly tenancy, serve notice on 14 Aug, notice would expire on 30 September (and would have to leave by then) (end of next clear period)

Answer 201

If tenant yields up lease to LL who accepts the surrender (so both must agree) Lease merges into reversion and extinguishes **Deed** required ***Does not terminate any sublease*** (eg surrender in wr - probs want top formalities to be sure so deed / wouldnt impact wr with other countries and must agree)

Answer 202

If tenant bankrupt Trustee in bankruptcy/liquidator can disclaim contracts which give rise to liability Disclaimer would terminate Doesn't apply to subtenant so they could seek order to become new tenant

Answer 203

No cases where it has done but may apply if property destroyed / disappears

Answer 204

Only if repudiatory i.e. fundamental / goes to root of contract Other party may accept the repudiation and regard as terminated Limited case law

Answer 205

tenant acquires landlord's estate; or TP acquires lease AND reversion In both cases, lease automatically merges with reversion and extinguished (unless expressly preserve lease)

Answer 206

Them and their predecessors in title have had uninterrupted possession for a period of 15 years. i.e. epitome title 15 years

Answer 207

Bundle of deeds and documents (a schedule with photocopies of the docs attached) to show uninterrupted possession of unregistered land.

Answer 208

Good root of title (as in that is most recent doc)

Answer 209

Document which: - shows ownership of the whole of the legal and equitable interest in the land; - contains a recognisable description of the land; - does not cast any doubt on the title; and - is at least 15 years old. Usually a conveyance as title assumed to have been investigated when conveyed. NOT A GIFT !!!! because recipient not investigate

Answer 210

Lease itself Plus docs showing uninterrupted possession for period of 15 years (or shorter period if lease is for shorter duration than 15 years)

Answer 211

*I think* the newer one but if there is an older one which references pre-root third party rights (covenants etc), ask for a copy of that AS WELL

Answer 212

- epitome of title could contain forged docs - investigating time consuming (and so expensive) - bundle of title deeds may be lost - old docs can be hard to read - if epitome reveals no TP rights, buyer may unwittingly purchase burdened land

Answer 213

All legal estates and rights (apart from puisne mortgages) i.e. legal mortgage which is not protected by title deeds (bcos legal rights/interests bind the world - buyer bound whether or not they know about them)

Answer 214

1. Protected by registration of land charge; or 2. Doctrine of notice

Answer 215

1. estate contract (contract to create/convey legal estate in land eg to sell land) 2. restrictive covenant 3. an equitable easement 4. a home right 5. puisne mortgage (nb can be elgal) (key ones for this module)

Answer 216

Onus on person holding equitable interest. Register against the freehold estate owner - NOT the parcel of land. (issues if uses different versions of name or rights holder has no access to title deeds)

Answer 217

Registration = bound (actual notice) Not registered BEFORE completion a and **paid money** or money's worth (market rate) = not bound nb knowledge of buyer irrelevant e.g. farmer with option to buy, protected by estate contract, had no actual notice and only registered on Land Charges register AFTER bought for market rate - not bound

Answer 218

search against names of ALL estate owners releveled in epitome (inc who pre-date root) nb if bound despite best practice, may be entitled to statutory compensation for loss

Answer 219

Search against names of ALL estate owners releveled in epitome (including those who pre-date root) Because will get **search certificate** from Land Charges Register conclusive in favour. (nb rare but may be bound despite best practice - here, may be entitled to statutory compensation for loss)

Answer 220

Equitable interests **PRE**-dating 1925 (if post-25 should be registered as Land Charge so not bound) Interests under a TRUST whenever created (but equity's darling may protect)

Answer 221

ONLY via doctrine of notice Can never be protected by Land Charge registration

Answer 222

If they are 'Equity's Darling' i.e. they are: Bona fide (no fraud) Purchaser for value (not a gift - any consideration is fine) Of a LEGAL estate or interest (i.e. falls in 1(1) or (2) and met formalities) - if they are buying an equitable interest, will be bound by the other TP right if that was created first 'where the equities are equal, the first in time will prevail' Without actual, constructive or imputed notice

Answer 223

1. Actual - buyer knows e.g. seller alerted - rumour/gossip doesn't count 2. Constructive - buyer is obliged to inspect land, investigate title and make enquiries which reasonable person with competent legal advice would - should look for TP rights e.g. worn track indicating RoW e.g. any other occupants - if fail to, bound - not obliged to look in drawers 3. Imputed - if buyer is legally represented and their representative is aware, even if the buyer hasn't been told

Answer 224

allows buyer to take property free of any beneficiaries' trust interest over property pay purchase price to minimum of 2 trustees (Nb trustees HOLD THE LEGAL ESTATE!) beneficial interests under trust then lift from property and shift to sale proceeds (so beneficiaries no longer have interest as their interest is in sale proceeds)

Answer 225

C(iv) an estate contract (mark would drive a class c merc e.g. option to buy is an estate contract) D(ii) a restrictive covenant (restrictive covenant just gives D) D(iii) an equitable easement (bit happier so extra i) F a home right (stay away from my home mark !) C(i) puisne mortgage (dont need to know numbers letters)

Answer 226

Mirror principle = land registry is a more complete reflection of title Insurance principle = accuracy of registry reflected by state Indemnity principle = anyone impacted by errors in register can claim compensation

Answer 227

1. Sale, gift, court order (e.g. divorce) or assent (PRs transfer to beneficiary will) of a qualifying estate Qualifying estate = any unregistered freehold or unregistered leasehold with MORE than 7 years left to run 2. Creation of a mortgage (of freehold and/or leasehold)

Answer 228

No substantive effect Warning by a person who claims an interest in unregistered land

Answer 229

qualifying estate owners (i.e. any unregistered freehold or unregistered leasehold with MORE than 7 years left to run) Fee discount (ahh so you would register before sale etc)

Answer 230

2 months from date of transfer/gift/lease/assent

Answer 231

fails to create legal interest (e.g. legal estate/legal lease/legal mortgage) and equitable interest held until registration completed LR may extend period for registration if good reason

Answer 232

Must be registered to be legal: 1. transfer of registered freehold 2. grant of legal lease of more than 7 years over a registered estate 3. grant of a legal charge (e.g. mortgage) 4. expressly granted LEGAL (!!!) easement or profit over **registered** land

Answer 233

which they are entered on the register (s 48 LRA 2002) not the date of creation of the charges. T his means that the mortgage that appears first in time will rank first

Answer 234

Third party interests in land which are not: - capable of substantive registration (ie freehold or leasehold w. 7 yrs left); - registrable dispositions (inc charge eg mortgage and expressly granted easement); or - overriding interests Include: - Estate contracts - Home rights - Interests under trust - Equitable easements or profits created after 2003 - Equitable leases - REstrictive covenants

Answer 235

1. Restriction - for TRUST interests (Trust me to restr (!) enter a restr(!!!))) propadms) - on PROPRIETORSHIP register - alerts buyer that registered proprietor has limited right to deal with legal estate so need overreaching - prevents later registrable disposition which conflicts with trust interests (e.g. terms of lease conflict with minor interest holders rights) - can enter w/o freehold owner consent 2. Notice (i NOTICEd that i started CHARGing once stopped rsetrict ing propadoms !) - for interests other than trust - CHARGES register - consent of owner not required - freehold owner can challenge a notice and claim damages if suffer loss If neither of the above, buyer for consideration takes free

Answer 236

Don't appear on register but bind owner and any buyer. They are: - LEGAL leases 7 years or LESS - interests of people in actual occupation - implied and prescriptive easements

Answer 237

- registered charges - registered notices (interests except trust?) - overriding interests

Answer 238

Legal easements and profits created by implication or prescription **AFTER Oct 2003** (20/30 prescription - 2003) (not overriding if expressly created by deed because then they are registrable dispositions) So easements/profits are overriding if not by deed but implied or prescriptive. (necessity/W v B etc)

Answer 239

Any of these conditions satisfied: 1. Purchaser had actual notice 2. Apparent on reasonable inspection of the land 3. exercised at least once in year prior to land transfer (and is implied/prescriptive)

Answer 240

1. is there an easement by implication or prescription? 2. was there actual knowledge or reasonably obvs or exercised 1 yr before

Answer 241

1. any proprietary interest - not a PERSONAL right e.g. licence (not an interest in land) - not HOME rights (statute excludes) (also not easements - makes sense - use land so no actual occupation) (protected other ways anyway) 2. and actual occupation (physical presence, Q of fact - sep queue card)

Answer 242

- physical presence - Q of fact considering type of property - does not require personal presence e.g. caretaker on behalf of company can occupy - degree of permanency and continuity - temporary absence irrelevant if there is visible evidence of occupation e.g. furniture - consider intent to return / reason for absence / personal circumstances (e.g. mental hospital - intent to return)

Answer 243

- must be some physical presence / degree permanency to make someone inspecting the land think (still consider same stuff as for usual property like intent) e.g. - erecting fences/no trespassing signs/replacing locks - regularly parking car in garage counts as ordinary use land - renovations but visited every other day and were builders on site, could establish

Answer 244

1. interest holder **failed to disclose** right upon inquiry when reasonably expect to 2. occupation** not obvious** on reasonable inspection, unless buyer had actual knowledge HELPFUL SUMARY - need: - proprietary interest + obvious actual occupation; OR - proprietary interest + non-obvious actual occupation + actual knowledge

Answer 245

NOPE!!! NEVER ! (nb might be able to claim as a common intention constructive trust interest - which could be overriding if in actual occupation) (or could be a minor interest if protected on proprietorship register as a restriction)

Answer 246

- not a PERSONAL right e.g. licence (not an interest in land) - not HOME rights (statute excludes) - not EASEMENTS (use land so no actual occupation)

Answer 247

yes (not for damages)

Answer 248

***This is true!!!!*** DAMAGES - if 3 years or more unexpired on lease (even if not 7 years) - entitled serve counter-notice FORFEITURE - always - only counter-notice 28 days if over 7 years and over 3 years left FOR BOTH: - specify breach - reas timeframe if capable - require compensation if desired (re-cap: specify breach, require remedy in reas time (if capable), require compensation (if desired))

Answer 249

24.09.2023 (note it is same day like 24 - 24)

Answer 250

Don't have to amount to express or implied agreement Show clearly consider to have distinct shares No decided case law on it.

Answer 251

Pre-1925 protected by doctrine of notice i.e. bound unless bona fide purchaser for value of legal estate w/o notice (constructive, actual or imputed). Post-1925 - must be registered as land charge ^ e.g. equitable easement Trust interests - doctrine notice only

Answer 252

1. Check if in use via property info form 2. Allow continued use - if caution registered, LR would warn off the right - if confirm continue to enjoy benefit, will be NOTED against title 3. ask if consent in writing to not using. if agree, cheap and simple. - if agree, ask LR to remove caution and send evi of agreeement 3. negotiate - still need written consent to relinquish - still ask LR to remove any caution and send evi of agreement e.g. fund a gate from their garden to allotment 4. if refuse negotiate and successfully maintain right, see if can negotiate financial compensation for loss of right (we compensate them) and record agreement in deed. register that at LR.

LL1 Flashcards

(281 cards)