Mixed (from mocks) Flashcards
(204 cards)
1
Q
How is the right to remain silent preserved?
A
The right to remain silent is preserved regardless of any previous statements made to law enforcement
(a def can choose to remain silent and is not a compellable witness for defense)
Right to silence> need for comprehensive examination at trial (as BOP lies with pros)
2
Q
Does gain/loss need to be caused to complete a fraud by abuse of position?
A
No
(no loss/gain need to be caused; there only needs to be intention to cause gain/loss)
3
Q
Can leading questions be asked during examination in chief?
A
Generally no
Exceptions: eliciting denial from the witness as to their own alleged actions or conduct
a hostile witness
Question on a matter NOT in dispute (then leading qs are okay)
4
Q
What are the requirements of severing a joint tenancy by written notice?
A
- Sent by registered post
- To last known address in the UK
(no particular form but MUST show:
1. clear intention to sever joint tenancy
2. sufficiently served)
5
Q
When must a lease agreement be compliant with the Lease Code for Business Premises (the “lease Code”)?
A
Because of the involvement of a RICS (Royal Institute of Chartered Surveyors) member
6
Q
What is corroboration warning?
A
A discretionary warning by a judge that evidence needs to be corroborated and conviction cannot be on that evidence alone
(eg: a corroboration warning MAY be issued when a witness has a history of being dishonest)
7
Q
When does a surrender of a lease be valid despite it NOT being a deed?
A
Estoppel when the LL has taken possession (if surrender is NOT in writing)
Equity like specific performance (if surrender in writing)
8
Q
What are various ways to surrender a lease?
A
- By deed
- By law
- By conduct
A surrender can be made expressly by a deed (a surrender through agreement between the parties),
or by operation of law, for example where the tenant vacates the property, returns the keys to the property to the landlord and the landlord or the landlord’s agent accepts the tenant’s conduct as surrender.
Where the landlord and tenant have entered into a deed of surrender, the end of the lease would be clear and unambiguous. It is not always certain, however, when a lease has been surrendered by operation of law.
9
Q
What are the gateways to introduce the bad character evidence of non-def?
A
- Important explanatory evidence
- substantial, probative value in relation to a matter which is a matter in issue in the proceedings (+) and is of substantial importance in the context of the case as a whole.
- All parties agree
(for def’s character there are 7 gateways)
10
Q
What is a proprietary estoppel?
A
a legal remedy that can be used when a landowner has promised property will be transferred to someone else at a later date, only to later renege on their statement (ONLY applicable on land)
Different from promissory estoppel where the beneficiary had relied on a promise to their detriment
11
Q
How long do the local authorities have to bring action against breach of Building Regulations?
A
12 months
6 months of the breach being discovered provided that is also within 2 years of the work being completed
(10 years is for Planning Permission or change of use)
12
Q
What kind of identification procedure is the most common and why?
A
Video identification as it is the most commonly used and least intimidating for witnesses
A suspect must initially be offered a video identification unless:
1. not practicable
2. identification parade is more practicable and suitable
2. officer in charge considers group identification more suitable than other forms and believes it practicable
13
Q
Why is an accessory still liable for an offence when the principal offender was acquitted?
A
Because the principal completed the actus rea of the offence (no liab if the principal did not complete AR)
(accessory becomes liable because they intended to aid, abet or procure the offence)
14
Q
When must a termination notice under the LTA 1954 be served?
A
6-12 months in advance of start or end of tenancy
Tenant can approach court for renewal on or before the expiry of the notice period/tenancy (which is earlier)
(LL has 2 months to inform tenant whether LL intends to oppose the request for renewal)
15
Q
When can a tenant approach the court to ask for a grant of a new commercial lease under the LTA?
A
Tenant can approach court for renewal on or before the expiry of the notice period/tenancy (which is earlier)
16
Q
What is the difference b/w following and tracing money from trusts?
A
“Following” is a process of following the same asset as it moves from one person to another
“Tracing” is the process of identifying a new asset as substitute for the old — for example if money is used to purchase a car, the money can potentially be “traced” into the car.
17
Q
Is a person who turned 18 before commencement of proceedings tried at the Youth Court?
A
No
They are sent to MC or CC (before commencement of proceedings or pleas is taken at 1st hearing)
18
Q
What is the maximum fixed term period that a Court can fix for parties under LTA 1954?
A
15 years (statutory max)
The Court can determine its own terms and need NOT follow the existing terms
19
Q
What happens when a gift to an unincorporated association fails?
A
If the unincorporated association had both a charitable purpose and a public benefit, the gift will be applied cy-pres (if dissolved before the testator’s death)
OR
The gift will be held on resulting trust
20
Q
What is the Commercial Rent Arrears Recovery procedure?
A
CRAR allows a landlord to take control of a tenant’s goods to the value of the rent arrears.
To proceed,
7 clear days’ notice must be given to the tenant after rent has been due for at least 7 daysand
after this notice period has expired the arrears can be enforced by a certified enforcement agent who can enter the prop and seize the goods and prop to collect rent owed (excluding service charge and any other payments)
21
Q
To what kind of leases does the Commercial Rent Arrears Recovery procedure apply?
A
CRAR only applies to WRITTEN commercial leases and rent arrears (including VAT and Interest)
Only applies to SOLELY commercial and WRITTEN leases
22
Q
How many Lord Justices (COL) hear the appeal from CC?
A
generally 3
23
Q
What kind of property is covered by criminal damage?
A
Real, personal and tangible prop (including money)
(the damage need not be tangible or visible)
24
Q
What is the form of notification needed to be sent to a client to move money from client to business account?
A
No particular form as long as its WRITTEN (could be text or invoice)
Need not always be invoice
25
What are special measures available to vulnerable and intimidated witnesses?
Child witnesses under the age of 18 are automatically eligible to apply for special measures
Special measures are:
use of screens (to ensure a witness does not see the defendant)
live link (allows a witness to give evidence from outside the courtroom)
giving evidence in private (asking the public and the press to leave court)
removal of wigs and gowns (only relevant at the Crown Court)
pre-recorded evidence
pre-trial visual recorded cross-examination or re-examination in the Crown Court
use of an intermediary
other aids to communication (using an interpreter, communication aid or technique)
26
What does an owner need to do after the merger of a freehold and leasehold title?
They need to apply to the Land Registry to either close the registered leasehold title or cancel the notice of the lease
27
What kind of impossibility defence is valid to an attempt offence?
Legal impossibility
(not factual)
28
Who must insure the prop b/w exchange and completion?
Residential and Commercial: Under SCS the buyer insures and pays the full premium
(Exception: seller has responsibility for new built property)
29
On what reasons can a solicitor refuse to take instructions from a new client?
Any non-discriminatory reason (not being able to pay is not applicable to prospective clients)
(for existing clients there should be a good reason with reasonable notice including for not being able to pay)
30
What are the necessary pre-contract searches conducted to protect a client's interest by a buyer's solicitor?
Enquiries before contract
Personal inspection/survey (not personally by sol)
Local search
Water/drainage search
Environmental search
Flood search
Optional ones include: bankruptcy, coal mining, chancel search etc
31
Is a trust which is NOT put in writing still a valid trust?
Yes (trust to be enforceable needs to be in writing and signed by the settlor)
However, it is UNEFORCEABLE
Deed is required for a transfer of land
32
Can restrictive covenants be passed down from a headlease to a sublease?
Yes, as the presence of the restrictive covenant is presumed/considered as adequate notice (even when the subtenant did not read the headlease and the sublease does not have the same covenant)
33
What is a fully qualified covenant when it comes to subleases?
a covenant that says a tenant can do something only with the consent of a LL and the consent cannot be unreasonably withheld
A qualified covenant turns into a fully qualified covenant
Reasons given MUST be connected to the lease
34
To which kind of interest does statutory power of maintenance (discretion to give income) does not apply?
Pecuniary legacy are an exception (no automatic right to intermediate income)
Exception to exception:
1. trust instru carries intermediate income
2. Contingent int created by parent or loco parentis
35
Is the LL entitled to recover from a previous assignor for breach of covenants on assignment of a lease?
No (after 1995;the previous assignor is automatically released from liab for breach of covenant)
But before 1995: previous assignors are still liable for breach
36
Which two parties cannot be liable for a conspiracy to commit crime?
Husband and wife (spouses/CP)
But spouses with a third party can be liable
37
What are examples of previous bad character that may be admissible?
Examples of admissible bad character evidence include
1. the defendant’s previous convictions,
2. an offence with which the defendant was charged and acquitted or not convicted,
3. the defendant’s reprehensible behaviour that does not amount to criminal conduct.
Evidence MAY be admissible if it falls under 7 gateways of admission
38
Who can be allowed to give evidence through video link?
Any witness (if it is in the interest of justice)
39
When does an AGA expire?
On the grant of a new/renewal lease
(AGA ends when the new tenant assigns the lease or the term of the lease ends)
40
Can a def appeal against their sentence in MC to CC?
Yes
A defendant convicted by a magistrates’ court may appeal against their sentence to the Crown Court.
The appeal must be made within 15 business days of the sentence and sent to the magistrates’ court that heard the case.
The notice of appeal only needs to state that the appeal is against the sentence – no other details are necessary. The Crown Court must accept the notice of appeal as there is no filter procedure.
41
What is the time limit for enforcement of action against change of use?
10 years (for breaches after April 2024)
4 years for breaches before April 2024
42
What is the mens rea for aggravated criminal damage?
Intention or recklessness
Subjective standard of what the def thinks (about endangering life)
43
What are the essential characteristics of a lease?
1. Exclusive possession (LL must be excluded)
2. Certainty of terms
3. Appropriate formalities (terms of contract)
44
What kind of a claim is possible against an innocent volunteer of trust property?
Propriety claim (NOT personal claim)
45
When can a def appeal from MC to CC against a decision after trial?
15 business days after conviction
(need NOT wait for sentencing)
46
What kind of covenant cannot pass in equity?
Positive covenant (which is a burden)
The original covenantor remains liable
47
What is the standard for excluding evidence based on unfairness?
Breaches are significant and substantial and have rendered the evidence unreliable and it will have an adverse effect on the fairness of the proceedings
(for unfairness; Court has discretion)
But no discretion in cases of mistake, untruth, oppression or unreliability due to things said or done
48
What is the minimum period of a commercial lease for LTA 1954 to apply?
6 months (leases under 6 months are not covered by LTA)
49
What is a no case to answer and when is it made?
A submission by the defending party in a court action that the claimant's or prosecution's case is not sufficient for the defendant to need to make any reply, either because of insufficient legal grounds or because of insufficient factual evidence.
It is made after prosecution witnesses
(judge hears it w/o jury)
50
Can party to the deed witness the signature of another party to the deed?
No (if they do then the deed is not valid)
51
How can a variation to the date of exchange of contracts in a prop transaction be recorded?
There must be a new exchange of contracts which records the variation in dates (signed by parties)
52
What is the Jervis v Harris clause?
The Jervis v Harris clause refers to a legal provision in property law, particularly in the context of commercial leases. It allows a landlord to enter the leased premises to carry out repairs if the tenant fails to do so, and then recover the costs of those repairs from the tenant as a debt.
53
Which remedies for breach are ONLY available to a LL?
CRAR procedure and forfeiture
(tenant has the option to do repairs and then recover costs by withholding rent)
54
What happens when a trust of land is not evidenced in writing?
It is valid but NOT enforceable
Evidence of trust must be in writing; if its not it becomes unenforceable but the trust is still valid if the 3 certainties exist
55
When should a police interview end?
A police interview should cease when the officer in charge of the investigation is satisfied that all relevant questions have been asked to obtain accurate and reliable information about the offence, including giving the suspect an opportunity to provide an innocent explanation and testing this. Additionally, the officer must consider any other available evidence and reasonably believe there is sufficient evidence for a realistic prospect of conviction.
Police can continue to ask questions on new evidence if the interview has not ceased
56
When can the benefit of a burden pass in common law?
1. Touches and concerns the land
2. Intended to run
3. Covenantee held legal estate
4. Successor holds legal estate
57
What happens when there are no offence-specific guidelines available for sentencing?
The courts MUST refer to overarching principles and relevant CoA judgements for similar cases
58
What are the criteria for donatio mortis causa gift?
A 'donatio mortis causa' (DMC) is a gift made in contemplation of impending death. The criteria for a valid DMC are:
(1) The gift must be made in contemplation, though not necessarily in expectation, of the donor's death.
(2) The gift must be conditional upon the donor's death; if the donor survives, the gift is revoked and must be able to be returned
(3) There must be delivery of the subject matter of the gift, meaning the donor must part with dominion over the property, although not necessarily physical possession.
59
What kind of a gift will not be valid after the donee dies?
Gifts like a cheque are revocable orders and are only valid during the lifetime of the payer and will not be valid after death
60
Can serious psychiatric injury amount to GBH?
Yes (if MR and AR are completed)
No direct application of force is necessary
61
Who has the BoP for when the admissibility of a confession is challenged?
Prosecution
(beyond reasonable doubt to show neither oppression nor things said and done likely to render the confession unreliable apply)
62
Which register records the quality of the title?
Proprietorship register
(Property register contains details of freehold/leasehold)
63
When does a will not get revoked despite a contemplation of marriage?
When the contemplation of marriage is NOT to a PARTICULAR person but a general contemplation of marriage
The marriage must also be in the foreseeable future (if it is not then the will is revoked)
64
What is tenancy at sufferance?
Tenancy at sufferance occurs when a tenant remains in possession of a property after the expiration of their lease, without the landlord's consent.
This type of tenancy is not recognised as a legal tenancy, and the tenant is essentially occupying the property unlawfully.
The landlord can take legal action to evict the tenant and claim damages for any loss incurred due to the tenant's continued occupation.
65
Define hearsay evidence
Hearsay evidence refers to any statement made outside of the current court proceedings that is presented to prove the truth of the matter asserted in the statement.
It is considered 'second-hand' evidence and is generally inadmissible in criminal trials due to its potential unreliability and the lack of opportunity for cross-examination.
Gen rule: Hearsay evi not admissible
Exception: 4 exceptions (under statue, rule of law, agreed by parties, int of justice)
66
When is hearsay evidence admisssable?
Gen rule: Hearsay evi not admissible
Exception: 4 exceptions below
1. under statute (eg: witness unavailable, business docs, previous consistent or inconsistent statements)
2. rule of law (confession or mixed statement, statements made contempraneous to offence, res gastae)
3. agreement of all parties
4. interest of justice (probative value, imp to the case as a whole, circumstances of the statement, reliability of maker, prejudice caused)
67
When is multiple hearsay evidence admissable?
1. business doc
2. consistent statement
3. inconsistent statement
4. all parties agree
5. value of evidence is so high that it is in interest of justice
68
What is a charging order?
A charging order is a legal mechanism by which a judgment creditor can secure the payment of a debt and interest by placing a charge on the debtor’s property. This means the property becomes security for the debt owed.
As Land Charge for unregistered land
69
What are the factors the court must consider for sale of co-owned property?
When deciding an application for an order for sale of co-owned property, the court must consider several factors
(a) the intentions of the person or persons who created the trust, which can be learned from the trust deed;
(b) the purposes for which the property subject to the trust is held;
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
(d) the interests of any secured creditor of any beneficiary.
70
Under which gateway of admissible and character evidence is propensity relevant?
Relevant to important matter in issue between prosecution and defence
Includes propensity to commit similar type of offences or to be untruthful
71
Which kind of proceedings cannot be subject to referral arrangements?
Criminal proceedings
72
Which kind of client money cannot be used for payment of disbursement on behalf of the client?
Money held in a designated deposited account
It first needs to be transferred to general client account before the payment is made
73
Is there a presumption of bail during the appeal process?
No (there is a general presumption otherwise)
A court may grant bail but there is no presumption of bail while an appeal is pending
74
When is a constructive trust imposed?
A constructive trust may be imposed in various situations where it would be unjust for a person to retain property.
Examples include:
(1) where someone has obtained property through fraud, duress, or undue influence;
(2) where a person has promised to hold property for another and then reneges on that promise;
(3) where property has been acquired through a breach of fiduciary duty (eg; unlawful act by a fiduciary)
(4) where a person has contributed to the purchase price of a property but is not on the title deeds.
75
What are the special provisions related to insurance of land?
There are special provisions for the insurance of land.
trustees are to insure any trust property, including land, against risks of loss or damage due to any event, and to pay the premiums out of the trust funds.
However, in the case of property held on a bare trust, the power to insure is subject to any direction given by a beneficiary who is of full age and capacity and absolutely entitled to the property, or by beneficiaries who are of full age and capacity and who together are absolutely entitled to the property.
76
What is a bare trust?
A bare trust is a type of trust where the trustees hold the assets on behalf of the beneficiaries absolutely.
The beneficiaries have an absolute right to demand any or all of the property at any time, and the trustees are merely agents of the beneficiaries.
The trustee's only duty is to transfer the property to the beneficiary in accordance with the terms of the trust at a particular future point in time.
77
Is an appropriate adult mandatorily to be present during a vulnerable suspect's interview?
Yes
Suspect cannot waive this right
A solicitor CANNOT be an appropriate adult
78
What happens when a tenant stays on premises after a lease ends?
They become a trespasser
There is no statutory or common law right of renewal if the LTA is already excluded
79
Who can vary the terms of a trust?
By the settlor if the trust expressly allows it
By trustees if:
(1) The trust instrument must expressly allow trustees to modify the terms of the trust, and this power must be exercised only for the purpose for which it was granted and not beyond the reasonable contemplation of the parties.
By beneficiaries
(2) Variation by the beneficiaries is possible if all beneficiaries are 'absolutely entitled' to the whole of the beneficial interest in the trust property, and they must all be adults over 18 with a sound mind. (a minor beneficiary cannot consent to variation)
By the court if:
(3) Variation by order of the court, which has inherent jurisdiction to vary the terms of a trust in certain circumstances
80
In which circumstances can the court vary a trust?
the court may approve any arrangement varying or revoking the trust, enlarging the powers of the trustees, or managing or administering any of the property subject to the trust, provided it is for the benefit of the person on whose behalf the court is acting. The court's interpretation of 'benefit' includes financial, moral, or social benefits
Additionally, the court has inherent jurisdiction to vary the terms of a trust in emergencies to salvage trust property or to compromise disputes concerning the rights of beneficiaries.
Furthermore, under s. 57 of the Trustee Act 1925, the court can authorise dealings with trust property and grant trustees additional powers for transactions expedient in the interests of the trust.
81
What is the procedure for a LL to pursue an original tenant who has signed an AGA?
Serve a notice within 6 months, which details the breach and amount owed to preserve the right to claim under the AGA
82
What is NOT considered property for the purpose of theft?
Confidential information
Prop includes intangible things
83
What happens when a half secret trust fails?
The trustee holds the gift on trust for the residuary beneficiaries
If full trust fails then the trustee will take the gift for themselves absolutely
84
How is a rent review under the LTA done?
A hypothetical lease is used during a rent review to determine the open market value of the rent that the tenant should pay. It is a lease with similar provisions to the actual lease granted to the tenant but includes certain assumptions and disregards to ensure it is not exactly the same.
This prevents the tenant from being willing to pay a much higher rent just to remain at the property.
For example, the tenant's occupation of the property and any improvements made by the tenant (unless part of an explicit obligation) are disregarded. Assumptions might include that the tenant has fully complied with its obligations under the lease.
85
Is the seller obligated to respond to pre-contract inquiries?
No
Any lack of awareness in their responses also absolves them of responsibility
(buyer beware principle)
86
When does the perpetuity period of 80 years apply?
To trusts created before April 2010
87
How can a joint tenancy be severed?
A joint tenancy can be severed in several ways,
by mutual agreement (includes mutual wills which are an exception the general rule of wills not severing JT),
by one party acting on their own share (such as selling/mortgaging or gifting it),
or by a court order.
Severance converts the joint tenancy into a tenancy in common, where each party owns a distinct share of the property.
No consent of co-owner is needed
But it needs to be written, signed and come in effect immediately (not in the future)
88
What does not qualify as a trigger for a loss of control defence?
Revenge
Sexual infidelity ALONE (can be sufficient with other reasons)
89
How many bail applications can be made?
3
one to police
second to the court (could be the same facts and legal arguments)
third to court (if change in circumstances; not allowed on the same facts/arguments from before)
90
Does an accessory need to be aware of the nature of the illegal act to be liable?
Yes
Knowledge of the essential matters is needed: knows the 'type of crime or the range of crime committed
91
Who is responsible for ensuring that a firm complies with SRA Account rules?
The compliance officer for finance and admin (COFA)
92
When is there a mandatory requirement of two executors?
When there is an interest of a minor under intestacy
93
What happens when a legal charge is registered after a noted equitable charge?
The equitable charge that is noted ranks above the later legal charge
94
When can a court deviate from sentencing guidelines?
Sentencing guidelines are mandatory but the court can deviate from them based on the unique circumstances of a case and if following guidelines can be contrary to interest of justice
95
Can the beneficiaries of a discretionary trust terminate the trust?
Yes, if ALL beneficiaries agree (also are adult, have capacity)
Charities can also be included as beneficiaries
96
Can a joint joint tenancy be severed through a will?
No (only inter vivos severance is valid)
Exception: mutual wills
97
What is the youth court's max sentence power?
2 years (case must be sent to CC for offences that require more)
Adequacy of sentencing powers is an imp consideration for transferring the case to CC
98
What is the maximum number of hours police can hold a suspect in the police station?
36 hours (24+12)
(application to MC is needed for beyond that)
99
Does the ownership of a property matter in cases of the defence of consent?
No
What matters is the belief of the defendant in the owner consenting to the damage
100
What is the time period for enforcement action for noncompliance with building regulations?
12 months
the local authority has only 12 months in which to bring an enforcement action based on the failure to obtain a certificate, it may seek an injunction to force an owner to bring the property up to standards (if the work was not up to standards) at any time if the work is deemed to be dangerous
They can prosecute in the Magistrates Court within 6 months of discovering the breach, provided it is within two years of the completion of the building work. They can also serve an enforcement notice within 12 months from the date of completion of the building work that is in breach.
(have total 12 months to bring action; 6 months after discovering breach as long as it is within 2 years of completion)
101
What is standard applied for an unmarried partner under the Inheritance (Provision for Family and Dependants) Act 1975?
the standard applied is the financial provision required for the partner's maintenance such that they can live decently and comfortably according to their situation. This is measured objectively
(NOT similar to married or divorced partner)
102
What type offence is robbery?
It is indictable only and must be heard at the Crown Court.
103
A man attended a solicitor's office with a document granting the man a right of way over his neighbour's property, title to which is unregistered. After examining the document, the solicitor concluded that it created a legal easement.
What must the solicitor do to protect the man's legal easement?
Nothing, as legal easements on unregistered land bind the world and do not require any further steps for protection.
The solicitor need not do anything because under the unregistered land system, legal interests bind subsequent purchasers of land encumbered by the legal interests whether or not the purchaser has notice of the legal interest.
104
A company is taking a 10-year lease of a factory unit. The freehold title is unregistered. The company wishes to obtain the best class of title that can be awarded upon registration of the leasehold. The solicitor acting for the freehold owner states that their client will not produce evidence of the freehold title.
Which approach best describes the most appropriate response by the company's solicitor?
The company's solicitor should insist that the freehold title is produced so that the company can secure absolute leasehold title.
His Majesty's Land Registry ('HMLR') will award an absolute leasehold title only when it has inspected all superior leasehold titles and the freehold title. Here, the company wishes to obtain the best class of title that can be awarded, which is leasehold title absolute. To do so, the freehold title must be produced.
If the freehold title is not produced upon first registration of the leasehold title, HMLR will only grant good leasehold title.
105
Which kind of crimes does not require proof of intent?
Crimes that can be committed recklessly
Eg: Criminal damage is unlawful damage to another person's property caused intentionally or recklessly. A defendant can be guilty of criminal damage by being reckless
106
A woman owns a large piece of land. She sells half of the land to a man. The transfer includes a covenant that neither the man nor any of his successors in title will use the land as anything other than a private dwelling. Two years later, the woman licences her remaining land to a licensee. Six months later, the man opens a furniture shop on his land.
Can the licensee enforce the covenant against the man at common law?
The licensee will not be able to enforce the covenant against the man because the licensee does not hold the same legal estate in the land. The woman had a legal estate when the covenant was made.
The benefit of a covenant will be enforceable by a covenantee’s successors in title as long as: (1) the covenant touches and concerns the land of the covenantee; (2) the covenant was intended to run with the legal estate held by the covenantee; (3) at the time the covenant was made, the covenantee held the legal estate in the land to be benefited; and (4) the assignee of the original covenantee now holds the legal estate. Here, the licensee does not hold the legal estate of the original covenantee (the woman) because the woman has only created a licence. This is insufficient to enforce the benefit of the covenant against the man.
107
How is a second mortgage noted for registered land?
As a second charge on the charges register
108
When can a PR not substitute a gift?
For their own benefit
General rule: The executors have the power of appropriation. This means that they can use an alternative asset to satisfy a legacy or interest in the estate, provided no specific beneficiary is affected.
Exception: However, unless the will provides otherwise, it is not permissible for a PR to make an appropriation in their own favour to satisfy a pecuniary legacy with an asset other than cash or the equivalent of cash, such as government stocks or quoted shares. Since the will is silent regarding appropriation, the executors cannot substitute the ring for the cash gift, and instead need to use an asset that is a cash equivalent.
109
What are the requirements for self defence?
The def believed force was necessary, and the amount of force was reasonable in the circumstances as they believed them to be
(force was necessary + reasonable in the circumstances as they believed them to be)
110
A defendant is convicted at trial in the Crown Court of burglary and sentenced to two years' imprisonment. The defendant wishes to appeal against sentence to the Court of Appeal. His solicitor advises against appeal, as they believe the appeal has no merit.
If the defendant decides to proceed on the appeal, could the sentencing outcome be worse for the defendant?
No
The Court of Appeal can quash any sentence imposed by the Crown Court and impose any sentence it deems appropriate. However, the Court of Appeal cannot exceed the sentence imposed by the Crown Court on an appeal against sentence by the defendant
111
What happens when a headlease is surrendered?
the subtenant will be able to stay on the terms of his sublease and will become the tenant of the head landlord.
The subtenant will not have to vacate the premises because he will be able to stay on the terms of his sublease and become the tenant of the head landlord. Surrender of a headlease has no major effect on a subtenant. If a headlease is ended by surrender, the sublease will not come to an end. The subtenant will become the tenant of the head landlord on the terms of the sublease and will have to pay rent due under the sublease to the head landlord.
112
A solicitor's client is selling a property. The client and the buyer have agreed a 10% deposit on exchange of contracts. The solicitor suggests to the client that the deposit be held as agent for the seller.
Under this agreement, which solicitor will hold the funds and what is the consequence of the deposit being held by a solicitor as agent for the seller?
The seller's solicitor will hold the deposit and may pay over the deposit to the seller immediately after exchange.
This may occur, for example, when the buyer is buying a new build property. It presents a risk to the buyer because if the seller spends the money between exchange and completion, the buyer may have difficulty recovering the deposit in the event of the seller's default.
Thus, the standard conditions of sale provide that on exchange of contracts, the buyer's deposit is held by the seller's solicitor as stakeholder (meaning the deposit will be paid to the seller only on completion).
113
A student approached a reputed drug dealer to purchase cannabis, although the student knew it was a crime to possess or smoke cannabis. The student bought a 'cannabis cigarette', which was in fact only an ordinary tobacco cigarette, from the drug dealer. As the student left the drug dealer's presence, he lit the cigarette, whereupon he was immediately arrested by a police officer who was keeping an eye on the dealer.
If the student is charged with attempt to possess cannabis, what should be the outcome?
The student should be found guilty, because he did acts that were more than preparatory in order to obtain an illegal drug.
114
A woman recently died and under the terms of her valid will left her estate to trustees to hold on trust to be divided equally between "my nieces when they reach 25 years". One of the nieces has been missing for two years. The trustees instruct a solicitor to determine whether the trust is valid.
Which of the following statements provides the best advice regarding the validity of the trust?
The trust is valid because the trustees can draw up a complete list of the deceased's nieces. (FCL)
the beneficiaries (or 'objects') of a trust must be defined with sufficient certainty. The test for certainty of objects in a fixed trust is that it must be possible to draw up a complete list of all the beneficiaries. The class of nieces is conceptually certain as it is possible to define clearly who is a niece, and so it is possible to draw up a complete list. Therefore, the test is satisfied.
(given postulant test for discretionary trusts; DGP)
115
A man said to his brother, "You can have all my shares in Company X Ltd to hold on trust for your daughter", and he handed the share certificate to his brother. The man died shortly afterwards before he had transferred the shares to his brother, although he was still intending to do so. The man's brother has been appointed as executor of the man's will.
Which of the following statements best explains why the trust is properly constituted?
The trust is properly constituted because the brother was appointed as executor of the man's estate.
In order to vest property in trustees, the correct method of transfer must be used according to the nature of the property concerned, and only then will the trust be enforceable. Shares in private limited companies are required to be transferred by the transferor (here, the man) signing a stock transfer form in favour of the transferee, which must then be registered in the company's share register. As this has not been done, the general rule is that the trust has not been constituted and, as equity will not assist a volunteer, no trust has been created. However, one of the exceptions to this principle applies here, which comes from the case of Strong v Bird.
Under this rule, if the intending settlor dies before the transfer is made and the trustee becomes the settlor's personal representative, the transfer is complete in law and the gift is enforceable. The settlor must have a continuous unbroken intention to give the gift between their initial intention and the trustee's appointment as personal representative.
Here, as the shares vest in the brother in his capacity as executor of the man's estate and because the man had a continuing intention at his death to make the gift, the transfer is perfected.
116
How does one identify a full secret trust?
The existence of the trust is not revealed
(for half secret trust; the beneficiary is not revealed but the trust is revealed)
117
A landowner grants a right of way to a grantee in a legal deed of easement. Title to the dominant and servient tenements is registered.
How will the right benefitting the grantee's land be reflected on the grantee's register of title?
notice on the Property Register
The benefit of a legal easement must appear as a notice on the Property Register of the dominant tenement (that is, the land that is benefitted by the easement). The Property Register indicates whether the title is freehold or leasehold, the address of the property, and details of any rights which benefit the land. Here, the grantee owns the dominant tenement, since their land is benefitted by the right of way. Thus, the easement will appear on the grantee's Property Register.
118
A defendant is standing trial in the Crown Court on a charge of actual bodily harm ('ABH') against her partner. The defendant has a history of domestic violence convictions. As a result, the prosecution seek to adduce her relevant previous convictions. The defence have made a counter application that the evidence should be excluded.
How will the court decide whether to grant the defence application to exclude the previous convictions?
When evidence is sought to be adduced under the bad character evidence gateways of 'an important matter in issue between the prosecution and defence' or 'the defendant attacked another's character', the court must not admit the evidence if:
(1) the defence make an application to exclude it, and (2) it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
The gateway of 'an important matter in issue between the prosecution and defence' permits admission of bad character evidence on the basis of propensity to commit similar types of offences.
(note the MUST)
119
What are the exceptions to the rule of self dealing by trustees?
if the trust instrument authorises the purchase,
if the court's approval has been obtained,
if the trustee or personal representative has retired and sufficient time has elapsed to prevent the beneficiaries from asserting their rights, or
if all beneficiaries, being of full age and capacity, have given their written consent after having received independent legal advice
120
Is it necessary to get the beneficiaries' consent to fair dealing by a trustee?
It is not necessary to obtain the beneficiaries’ consent, but merely to disclose the transaction to them (in self dealing consent is mandatory)
The fair-dealing rule applies to a specific beneficiary’s beneficial interest in the trust, rather than the whole trust assets. The courts consider that, where the trustee acts honestly, makes full disclosure to the beneficiaries, and pays a fair price, the transaction will be permitted.
121
When is money held by a firm for the benefit of a client considered firm money?
When the principal/partner is providing instructions for their personal matter
BUT if principal/partner is a providing instructions jointly (as with a spouse) then it is client money
AND when a non-principal employee (assistant sol or consultant) then it is also client money
122
In which case an executor MUST renounce their appointment?
When there is a sole executor and an alternative executor is provided
The alternative executor cannot take probate unless the sole executor entirely renounces (NOT reserves) their power
123
Who are not considered members of public for the purpose of approaches by a solicitor?
Businesses such as cos, NGOs, individuals who are members, directors, employees of cos, acting in capacity as reps of the co (may be approached for business marketing)
124
What is a license in the context of a lease?
A licence in the context of a lease is a legal document given by the landlord that grants permission to a leaseholder to carry out certain activities to their property, which would otherwise be prohibited under the terms of the lease.
This can include activities such as assigning or sub-letting the lease. The licence must usually be in writing, in the form of a deed, and will not be effective until it is completed.
It is usually drafted by the LL's sol and the LL can recover legal and admin costs
125
Which rank of officer needs to approve forcible taking of non-intimate samples from a suspect?
Inspector
126
Can a prop buyer transfer the benefit of a contract to ta third party?
No
Standard conditions state that the seller might not be required to transfer the property to any other person other than the buyer
127
Can third party right be created in a prop contract?
no 3rd part right are created unless it is specifically stated in the contract
128
Is time of the essence in rent review?
The general rule is that time is not of the essence in rent reviews, meaning missing a deadline is not fatal unless the lease explicitly states otherwise.
LL can ask for rent review even after missing deadline
129
How does Formula C for exchange operate?
Exchange happens in two stages and two phone calls.
The 1st call confirms that the sols are ready to exchange
The 2nd call confirms the actual exchange of contracts
(heavily relies on undertakings)
130
What happens to a sublease when a break clause is exercised by a LL?
The sublease automatically ends and LL becomes entitled to possession (irrespective of previously consenting to the SL)
(under normal merger; the SL remains valid)
131
What are the exceptions to making material info available to client?
These exceptions include situations
1. where the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime,
2. where the client gives informed consent in writing to the information not being disclosed to them,
3. where there is a reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed, or
4. where the information is contained in a privileged document that the solicitor has knowledge of only because it has been mistakenly disclosed.
132
What is included in unreliability of confession evidence?
Unreliable confessions are those obtained through inducements, hostile questioning, or failure to accurately record what was said
the confession must be excluded, even if it might be true.
133
Can an easement create exclusive possession of the servient land?
No
While an easement may incidentally benefit a business on the dominant land, it cannot grant the dominant owner exclusive use of the servient land that excludes the owner
134
When does a court need to be informed about a defendant's preference for Welsh language?
During the plea and case management stage in the Crown Court, the court will enquire about the defendant’s language preference.
135
What are defenses to criminal damage?
CONSENT: A lawful excuse can be claimed if the defendant HONESTLY believed that the person entitled to consent to the damage had consented or would have consented if they knew the circumstances
PROTECTION OF PROPERTY: Another lawful excuse is if the defendant acted to protect property, HONESTLY believing it was in immediate need of protection and that the means adopted were REASONABLE
HONEST belief is a subjective test
136
When an owner of joint property dies, does one need a probate?
No
As the prop passes under the doctrine of survivorship
There is no need to show who has authority to deal with the assets of the deceased or for probate when dealing with a property held as joint tenants
137
What is the test for admitting bad character evidence under the an important matter in issue between the defendant and a co-defendant gateway?
Substantive probative value
138
Are outgoing tenants liable for future lease obligations?
No
Unless an AGA is signed (post 1996)
139
When is SDLT payable?
Within 14 days of tenant going into occupation
140
What is an exception to the offence of absconding?
Reasonable excuse and surrendering as soon as reasonably practicable
141
What is the max number of individuals allowed to take probate?
4
Minimum 2 when there is a minor's interest or life interest
142
What is the time period for appealing against an enforcement notice or breach of planning permission?
28 days
It is the min period the authorities need to give to enforce the notice
143
What is a stop notice?
A stop notice is a legal tool used by local planning authorities to halt activities that are in breach of planning control. It is served in conjunction with an enforcement notice and can take effect between 3 and 28 days after being served, though a shorter period can be specified if warranted.
There is no right of appeal to the Secretary of State against the prohibitions in a stop notice, but its validity can be challenged in the High Court through judicial review.
144
From what time is actual occupation determined to be a valid overriding interest?
From the time of completion and must have some degree of permanence or continuity
145
What is the actus rea for assualt/battery?
Applying UNLAWFUL force to another person
146
What should a party do if the termination date is approaching while they are negotiation a lease under the protection the LTA?
They should extend the contractual termination date (in writing) before the termination data passes
Or approach the county court if the termination date passes
147
What happens if a subtenancy is given in breach of an absolute bar on sub letting?
If a subtenancy is given in breach of an absolute bar on subtenancy, the sub-letting would be in breach of the head lease.
However, this will not invalidate the sub-tenancy.
The sub-tenant will still lawfully occupy the property until the landlord ends the tenancy in the proper way, such as by taking possession proceedings, or if the original tenancy expires.
148
What is a grant of double probate?
A grant of double probate occurs when a second grant of probate is issued for the same estate.
This typically happens when an additional executor, who was not included in the original grant, needs to be added.
The second grant does not revoke the first but rather supplements it, allowing the newly added executor to act alongside the original executors.
(process for when an executor who had reserved powers needs to get involved)
149
What happens on the failure of certainty of intention to create a trust?
The gift fails and becomes an outright gift to the trustee
150
What happens on the failure of certainty of subject matter to create a trust?
The gift fails and becomes a resulting trust
151
What happens on the failure of certainty of objects to create a trust?
Gift fails and becomes a resulting trust
152
Who is a reservation of an easement interpreted against?
A reservation of the easement by a seller of land is interpreted against the purchaser on the basis that the purchaser is treated as the grantor.
This means that any ambiguity in the reservation is resolved in favour of the purchaser, ensuring that the seller cannot define the terms of the reservation in a way that compromises or defeats the fundamental purpose of the grant itself.
153
Which type of property is an exception to the CRAR procedure?
Residential or mixed use (resi+commercial)
CRAR is available only for SOLELY commercial props
154
How many people must an identification parade include?
at least 8 + suspect (total 9)
If one of the suspects in an identification parade has a distinctive feature such as a scar on their face, reasonable steps should be taken to CONCEAL this feature to ensure the fairness of the identification process.
155
What are the exceptions to a vulnerable suspect being interviewed without an appropriate adult?
Superintendent's belief + no harm to vulnerable person
A vulnerable suspect can be interviewed without an appropriate adult present if an officer of the rank of superintendent or above considers that delaying the interview will lead to interference with or harm to evidence connected with an indictable offence etc.
Additionally, the officer must be satisfied that the interview would not significantly harm the person’s physical or mental state.
156
How are damages for the breach of repairing covenant calculated?
Damages for breach of a repairing covenant are determined based on the amount by which the value of the landlord’s reversionary interest in the premises is diminished due to the breach. This is often less than the actual cost of repairs.
Additionally, no damages are recoverable if the premises would be demolished or significantly altered shortly after the lease expires, rendering the repairs valueless.
157
Who incurs the cost of transfer of specific gifts in a will?
The beneficiary
The beneficiaries entitled to specific gifts will bear the costs associated with the transfer, unless the will states otherwise.
These costs include the expenses incurred during the preservation of the gifts from the date of death until the actual transfer, as well as any required insurance coverage to protect the property.
158
Are letter of wishes accompanying a will legally valid and need to be followed by the trsutees?
No
The trustees need not follow it as it is not legally binding
159
What are reparation orders for youth?
A reparation order is designed to make the young offender face the consequences of their criminal behaviour.
It is applicable only for imprisonable offences.
The order requires the young person to undertake unpaid work, which can either directly benefit the victim(s) of their crime or contribute to the betterment of the wider community. Before issuing a reparation order, the court obtains a report from the Youth Offending Team (YOT) regarding the young person involved, which includes recommendations for appropriate forms of reparation.
160
When is the joint liability of trustees not engaged?
When the trustee undertakes a unilateral action w/o the consent of the other trustees. It leads to breach of trust
161
How long does a right to an easement needs to be interrupted to not qualify as a prescription?
1 year at a stretch
Therefore, a right enjoyed for 19 years till qualify for prescription (it need not be a full 20 years as long as its more than 19 years)
162
What is a notional interruption?
Notional interruption refers to a legal mechanism introduced by the Rights of Light Act 1959, which allows the interruption of the enjoyment of light without the need for a physical obstruction, such as a wall.
This is achieved by registering a light obstruction notice, which, once in place, is treated as if it has physically obstructed the access of light to a building for the purposes of determining prescriptive rights.
163
Who is responsible for ensuring that the draft lease is compliant with the Lease Code?
The LL or their letting agent
Before the initial lease is circulated
164
What is considered hearsay evidence?
Hearsay evidence is any statement made outside of the current proceedings that is presented to prove the truth of the matter asserted in the statement.
It is generally inadmissible in criminal trials unless it falls within a recognised common law or statutory exception.
165
What does being absolutely entitled to property mean?
Being absolutely entitled to property means that a beneficiary has an unconditional and complete right to the trust property. This entitlement is not subject to any conditions or limitations.
For example, a remainderman is absolutely entitled to the trust capital, even though they do not receive the trust property until the life tenant’s death. Their entitlement is deferred until the termination of the life tenant's interest.
166
What is the difference between mere power and discretionary trusts?
A mere power and a discretionary trust differ primarily in the obligations and discretion conferred upon the trustees. In a mere power, trustees have the discretion to decide whether or not to exercise the power at all. For example, the trust instrument might state that 'the trustees may give £10,000 to X,' meaning the trustees can choose to act or not act on this power.
In contrast, a discretionary trust obliges trustees to exercise their powers, but they have discretion regarding how to exercise them. For instance, trustees must distribute the trust's income or capital but can decide the amounts and recipients within the class of beneficiaries. The test for fiduciary mere powers is the 'is or is not' test, as established in Re Gulbenkian’s Settlements [1970] AC 508, which requires trustees to definitively determine whether a potential beneficiary is within the class of beneficiaries.
167
What are Third-party managed accounts (TPMAs) ?
Third-party managed accounts (TPMAs) are accounts managed and operated by a third party as a substitute for, or in addition to, a client account operated by the solicitor or firm themselves.
The key element to a TPMA for the purposes of the SRA Accounts Rules is that money paid into or withdrawn from such an account will not be considered client money, as it is not held or received by the solicitor.
The SRA requires that a TPMA provider must be regulated by the UK's financial services regulator, the Financial Conduct Authority, either as an authorised payments institution or a small payment institution with voluntary safeguarding arrangements equivalent to those of an authorised payment institution. This ensures that the TPMA is under separate and enforceable regulatory obligations to safeguard the client's money.
Solicitors may use TPMAs for receiving or making payments on behalf of their clients, provided certain conditions are met, such as ensuring the client is informed about the terms and fees associated with the TPMA and their right to terminate the agreement and dispute payment requests.
168
What is the presumption of gifts to the executor?
there is a presumption that any general, specific, or demonstrative legacy made to a person appointed as executor is intended to be conditional upon that person acting as such. This presumption can be rebutted by a contrary indication by the testator in the will, either explicitly or implicitly.
Exception: the residue doesn't fall under this presumption (residue is not considered a gift conditional on the person acting as an executor)
169
What is an option available to a party on breach of sale contract due to non completion till the notice to complete is not served?
Damages only
Rescission is only available after time is made of the essence (notice to complete is served)
170
What considerations are relevant for implied the beneficial interest in a family home?
The whole course of dealing is relevant for determining the beneficial interest in a family home when there is no express declaration of trust.
In such cases, the court will consider the parties' intentions at the outset and how those intentions may have changed over time.
This includes examining their conduct and dealings throughout the relationship to objectively deduce their common intention regarding the beneficial ownership of the property.
("course of conduct" when prop is in joint names with no express declaration. "Whole course of dealing" when prop is in single name with no express declaration)
171
When can a foetus be considered murdered?
a foetus is not considered a person capable of independent life and thus cannot be the victim of homicide under current law.
(can only be murdered after it is outside the body)
the doctrine of transferred malice does not extend from the intention to kill or cause grievous bodily harm (GBH) to the mother to an unborn foetus. This would constitute a 'double transfer' of intent, which the court has rejected.
Therefore, while the defendant could be criminally liable for manslaughter through the offence of constructive manslaughter, they cannot be held liable for the murder of the unborn child on the basis of transferred malice.
172
What is the procedure to contract out of the security for tenure provisions?
the landlord must serve a notice on the tenant in the prescribed form, stating that the lease is to be contracted out of the security of tenure provisions.
The tenant must then make a declaration confirming that they have received this notice and agree to the lease being contracted out.
If the notice is served less than 14 days before the lease is due to be completed, the tenant must make a statutory declaration, which requires visiting an independent solicitor. If the notice is served 14 days or more before the lease is completed, a simple declaration suffices.
A certified copy of the notice and the tenant's declaration must be annexed to the lease. If the contracting out process is not completed correctly, the agreement to exclude security of tenure will be void, and the tenant will enjoy the full protection of the LTA 1954, including the right to apply for a renewal lease.
173
How does the court assess the seriousness of the offence?
These include the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused.
Statutory aggravating factors such as committing an offence while on bail, previous convictions, and hostility based on race, religion, disability, sexual orientation, or transgender identity also affect the seriousness.
Additionally, the court follows sentencing guidelines relevant to the case and may consider other factors like planning, intention to commit serious harm, and the use of weapons.
174
Who has the right/ownership to property kept outside a charity?
The person who kept it
TILL the charity takes the property
(It is NOT abandoned prop)
175
Can a donor who is also a trustee take their gift back?
No
It all the formalities of the trust have been met then the gift is final
176
What is the legal effect of a deed of variation on a lease?
The effect of a deed of variation is that it legally modifies the original lease agreement, and both parties are bound by the new terms set out in the deed.
(legal surrender of original lease and immediate start of new lease)
It is important to note that any variation must be agreed upon by both the landlord and the tenant, and in some cases, the consent of a third party, such as a superior landlord or a lender, may be required.
177
What is the time limit for suing a trustee for breach of trust?
6 years (general limitation period)
If the beneficiary’s entitlement is contingent upon reaching a certain age or the occurrence of a certain future event, the six-year period will run from the date the beneficiary’s interest has vested.
There is no fixed statutory time limit if the trustee commits fraud or takes trust property for himself.
178
Which tests need to be passed for a representation order to be granted?
To qualify for a representation order, a defendant must satisfy both the means test and the interests of justice (IoJ) test.
The means test assesses the defendant's financial eligibility for legal aid. In the magistrates' court, this involves an initial assessment of the applicant's gross annual income, adjusted based on family unit size.
If the income is below a statutory threshold, the applicant passes the means test. If it exceeds the threshold, a full means test is conducted, considering all income sources and calculating annual disposable income.
In the Crown Court, the means test is contributory and considers income, capital, and equity. Some applicants, such as those under 18 or receiving certain welfare benefits, are exempt from completing the means test.
The IoJ test determines whether it is in the interests of justice to provide the defendant with legal representation.
This test is automatically satisfied for indictable-only offences sent to the Crown Court.
Other grounds for satisfying the IoJ test include the likelihood of losing liberty, livelihood, or suffering damage to reputation if convicted.
The IoJ test also considers whether the case involves complex legal issues, the defendant's ability to understand the proceedings, and the interests of someone other than the defendant, such as vulnerable witnesses.
179
What is the threshold for a community sentence?
A community sentence can only be imposed if the offence, or the combination of the offence and one or more associated offences, is serious enough to warrant such a sentence.
a court must not pass a community sentence unless it is of the opinion that the offence is serious enough to justify it.
Additionally, a community sentence cannot be imposed for an offence that is not punishable with imprisonment.
180
Till what time can a defendant change their plea?
A defendant may change their plea from not guilty to guilty at any stage of the trial prior to the jury returning their verdict or even until the court passes sentence.
181
Which beneficiary's consent is required to give an advancement?
Prior beneficiary (could be life interest) as their interest gets affected
NOT future/subsequent beneficiary
182
What happens if a LL does not oppose a notice for change in terms within the statutory 2 months?
LL loses right to oppose BUT has to negotiate new terms
(no automatic acceptance of terms)
183
What happens if the gift to a spouse is inconsistent in the same will?
When a will gives an absolute gift to a spouse but the same instrument gives an interest in the property to an issue, there is a rebuttable presumption that the gift to the spouse is absolute. This means that, notwithstanding the purported gift to the issue, the spouse is presumed to receive the absolute gift.
This presumption is intended to prevent an unintended life interest in possession for the spouse. The presumption only applies where the purported gift is given to issue, not to other persons.
(NOT applicable to non-spouse: where a will contains a gift which appears to be absolute, followed by a direction that it is to be held on trust, the gift is to operate as a trust so long as it is effective)
184
What is a puisne mortgage?
A puisne mortgage is a type of legal mortgage that is not protected by the deposit of title deeds with the mortgagee. It ranks after a first mortgage and is typically registered as a second or subsequent charge on the property.
(even a legal mortgage can be a puisne mortgage)
185
Is an appellant entitled to be considered for a bail while their appeal is pending?
Yes
(Subject to the usual exception of bail or murder/rape cases)
186
What is the maximum time period allowed for a youth rehabilitation order?
3 years (may be extended up to 6 months for the completion of all the requirements after fulfilling the initial requirements)
187
What is an estate contract?
Estate contracts refer to agreements that create or convey legal estates or interests in land. These contracts give the buyer an equitable interest in the property before the completion of the sale, at which point the buyer becomes the legal owner.
Examples of estate contracts include contracts to convey the legal estate in land, contracts to create a lease (equitable lease), options to take or renew a lease, options to purchase the fee simple, and rights of pre-emption or any other similar rights.
(if registration of disposition is delayed; an estate contract is a good remedy)
188
What is an overriding lease?
This lease is for a term equal to the remainder of the original lease, plus an additional three days.
a guarantor can create an overriding lease.
if a third party (which can include a guarantor) pays the full debt amount owed to the landlord, including interest, they are entitled within 12 months of making the payment to apply to the landlord for an overriding lease.
189
What are the MR and AR of conspiracy?
MR: Intention behind the agreement (NOT mere recklessness)
AR: Act of agreeing
190
Will a codicil be valid despite the revocation of the will?
Yes
Codicil also needs to be specifically revoked or it stays in force
191
What happens if a trustee makes a profit because of the trusteeship?
General rule: Not allowed to profit from trusteeship
(if profit made; it is held on constructive trust for the trust)
Exception: when profit made irrespective of trusteeship
192
When can a prescription based easement NEVER arise?
If the permission is given in writing
(if oral permission then easement by prescription may arise)
193
What can be done if a victim refuses to attend court to give testimony?
Issue witness summons to secure attendance
194
What is constructive manslaughter?
Constructive manslaughter=unlawful act manslaughter,
occurs when a defendant commits an unlawful act that is dangerous and causes the death of another person.
The act must be a crime, not a civil wrong, and it must be objectively dangerous, meaning that a reasonable person would recognise it as carrying a risk of some harm. The defendant does not need to have intended to cause death or serious injury, but they must have intended to commit the unlawful act.
195
Which docs need to be disclosed before the first hearing?
the Crown Prosecution Service (CPS) must serve initial disclosure of the prosecution case (IDPC) on the defence.
This includes prosecution statements and other evidence disclosed under the pre-trial disclosure of evidence rules.
The IDPC will typically be served digitally and will include a statement confirming that the prosecution understands that its common law duties of disclosure have been complied with.
If a not guilty plea is anticipated, the IDPC will also include a Streamlined Disclosure Certificate (SDC) comprising any unused material which needs to be disclosed in accordance with the prosecutor’s duty
196
When will a beneficiary's share be paid into Court?
When the beneficiary refuses to give discharge to the trustee
(if the beneficiary is a minor then the trustee must hold their interest till it becomes vested)
197
Which form is used to transfer part of a registered land?
TP1
(TR1 is for transfer of whole estate)
198
is visibility a requirement for implied easement?
Yes, visibility is a requirement for an implied easement under the rule in Wheeldon v Burrows. The right must be 'continuous and apparent', meaning it is in regular use and visible from a physical inspection of the land.
"continuous and apparent" means must be in regular use and visible
(underground pipes will not be valid easement as they are not visible)
199
How can an easement be abandoned?
An easement can be considered abandoned if there is a clear intention on the part of the dominant owner not to resume their right.
Abandonment requires more than just non-use; there must be a demonstrable intention to relinquish the easement. Simply failing to use an easement is not sufficient to imply abandonment.
(clear intention necessary)
200
What is a Section 40 notice under the LTA?
A Section 40 notice under the Landlord and Tenant Act 1954 allows a landlord or tenant to request information from the other party about the ownership of the property and the terms of the tenancy.
This notice can be used to clarify details such as the identity of the landlord or tenant, the terms of the lease, and any sub-leases or assignments.
The recipient of the notice is required to provide the requested information within a specified period, usually one month.
201
What are the powers of the COA while deciding an appeal?
The Court of Appeal has several powers when deciding an appeal.
It can quash the original sentence and substitute it with a more severe sentence if deemed appropriate (as long as its under the powers available to CC).
The Court of Appeal can confirm, reverse, or vary any ruling related to the appeal.
It may also order that proceedings for the offence be resumed in the Crown Court, a fresh trial be conducted, or the defendant be acquitted if a fair trial is not possible.
Additionally, the Court of Appeal can rule that the time spent in custody between the trial court's sentencing and the appeal hearing counts towards the sentence, unless the appeal is deemed frivolous.
202
What is an index map used for?
An index map is a map used in property transactions to identify whether a piece of unregistered land is already registered, if there are any other registered titles on the land, and if there are any pending applications or cautions against first registration.
This search is performed at HM Land Registry and is mandatory for all unregistered land transactions.`
203
What is the operation period of a suspended sentence?
The operation period of a suspended sentence is the time frame during which the custodial sentence is suspended. This period can range from six months to two years.
During this time, the defendant must comply with certain requirements set by the court, such as unpaid work or attending a rehabilitation programme.
If the defendant fails to comply with these requirements or commits another offence during the operational period, the original custodial sentence may be activated.
204
