Nature of Land Flashcards
(93 cards)
1
Q
Conditions for a parol lease [legal]:
A
- 3 years or less
- Tenant pays market rent
- Landlord does not charge a premium
- Takes effect in possession
2
Q
If rent is paid quarterly, does this fall within the parol lease exception?
A
YES. If rent is paid quarterly so there is an implied quarterly periodic tenancy, which will fall within the parol lease exception, s.54(2) LPA 25. It is for less than three years (each period of the lease is 3 months)
3
Q
Is a deed needed for a 5 year lease
A
Yes
4
Q
Conditions for a legal easement [freehold] and [leasehold]:
A
Freehold = Must be granted for a period equivalent to a fee simple absolute in possession
Leasehold = Must be granted for a term of years absolute
Easement must be granted forever or for a fixed duration.
5
Q
If a easement is granted over the land owner’s retained land for the rest of the buyers life - is it an equitable easement or a legal easement?
A
Equitable
6
Q
Is a right to use drains an easement or a positive covenant?
A
Easement
7
Q
A positive covenant does not normally pass to a successor in title at law - but what is an indirect mean of enforcing it?
A
chain of indemnities already in existence
8
Q
Question (Front):
Can the burden of a positive covenant (e.g. to maintain a boundary fence) be enforced directly against a purchaser of the land?
A
Answer (Back):
No — the burden of a positive covenant does not run with the land at common law or in equity.
The original covenantor (e.g. the developer) remains liable.
If a successor (e.g. the buyer) agrees to an indemnity covenant in the transfer deed, the original covenantor may recover from them if sued.
The benefit of a positive covenant may pass, but not the burden.
9
Q
Two conditions to satisfy a ‘home right’
A
- Non-legal owning spouse
- Still legally married
10
Q
When is a statute in the garden classed as a fixture rather than a chattel?
A
As it forms part of the architectural design of the garden.
[Greek gods and goddesses in the garden, cant take one]
11
Q
Under what circumstances would equity intervene to recognise this arrangement:
5 year lease entered into a agreement that isnt formalised in any way?
A
Valid Contract in:
Writing
Signed by landlord and tenant
Contain all the expressly agreed terms
Tenant has clean hands
12
Q
What is an Estate Contract?
A
An estate contract is an agreement to create or transfer a legal estate in land that lacks the formality of a deed, but complies with s.2 Law of Property (Miscellaneous Provisions) Act 1989.
It must:
Be in writing,
Be signed by both parties, and
Contain all the agreed terms.
If these are met but the deed formalities are not, the interest is equitable, not legal, and is classified as an estate contract under s.1(3) Law of Property Act 1925.
13
Q
Is ‘the option to purchase’ legal or equitable
A
equitable
14
Q
formalities for an equitable lease/estate contract:
A
document
written
signed
contains all the agreed terms
tenant has clean hands
15
Q
What can the legal estate be held as ?
A
Joint Tenants
16
Q
What can the equitable estate be held as
A
Joint Tenants or Tenants in Common
17
Q
Max amount of trustees
A
4
18
Q
Powers of the trustees
A
- sell, mortgage or buy the trust land
- must consult the beneficiaries
- comply with the wishes of the beneficiaries as far as practicable
19
Q
Joint Tenancy:
A
- right of survivorship [on death passes to the remaining joint tenants]
- entitled to whole of property
- can sever in equity to become tenants in common
20
Q
Tenancy in Common:
A
- No right of survivorship [on death passes through will/intestacy]
- Unequal shares allowed
- May be alot of tenants in common
21
Q
Is it a joint tenancy or a tenancy in common in equity?
A
- For a joint tenancy:
- possession of whole
- identical rights over land
- interest from same document
- recieve interests at same time - Check for express decleration
- Check for words of severance [equally divided by]
- does equity presume tenants in common [is it a business usage- tic , are there unequal shares -tic]
22
Q
Under s.11 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA), who must trustees consult before making decisions about trust land?
A
Trustees must consult all beneficiaries who are of full age (18 or over) and have an interest in possession (i.e., an immediate right to benefit from the land).
They must have regard to the wishes of those beneficiaries, though they are not strictly bound by them.
23
Q
Ways to sever a joint tenancy:
A
Written Notice
Selling/Mortgaging
Conduct showing intent to sever
Homicide
24
Q
Written notice severing a joint tenancy
A
written notice stating an intent to sever NOW and not in the future
needs to be recieved or deemed to be recieved
25
If the notice to sever is by registered letter, when is it deemed sufficiently served?
If the letter is not returned undelivered.
26
If the notice to sever is by ordinary post, when is it deeed sufficiently served?
if left at the last known abode/buisness in the UK
27
For severance by mutual agreement, what is required
An agreement [can be oral] and it need not be carried through to performance.
Expresses an intention to sever the joint tenancy.
28
For severance through mutual conduct/course of dealing, what is required?
Show through their conduct, that they own distinct shares
29
What is the effect of severance
2 JT in equity become 2 tenants in common 50%
3 or more JT in equity, the co-owner who severs the JT becomes a TiC. The other two hold a JT in equity of the remaining interest
30
Harry and Seema purchase 77 Bottle Lane (‘the Property’). Seema contributed 70%
of the purchase price and Harry the remaining 30%. The transfer to them contained a
declaration that the Property was held legally and beneficially as joint tenants. Harry sells
his interest in the property to his brother, Joseph. Subsequently, Seema is killed in a tragic
road accident. Seema left all her interest in the Property to her cousin, Ambar. How much interest does Ambar have in the property?
Legal estate
The legal estate was held as a joint tenancy. On Seema’s death, the rule of survivorship
applies and Harry becomes the sole trustee of the legal estate.
Equitable interests
Harry and Seema held the equitable interest as joint tenants. Harry’s sale to Joseph was
an act operating on one joint tenant’s share and severs the joint tenancy in equity. Upon
severance, Harry and Seema held the equitable interest as tenants in common in equal
shares. Their initial contributions are irrelevant.
On Seema’s death, her interest passed to Ambar. Amber holds a 50% interest in the Property
as a tenant in common. Joseph also holds a 50% interest in the Property as a tenant in
common.
31
When does a resulting trust arise?
When a person who has no legal title to the property contributes to the purchase price.
32
When does a constructive trust arise?
Agreement + detrimental reliance [paying for improvements, all the bills, work unpaid]
or
Conduct + direct financial contribution
[paying towards the purchase price initially, paying towards the mortgage payments]
33
Resolving disputes when couples fall out and argue over selling/retaining the property then:
- intentions of the trust creator
- purpose of the trusts
- kids
- secured creditors interests
34
If there is a wife and husband who are joint tenants of the legal estate and beneficial estate, and the husband dies, what does the buyer need from the solicitor in relation to the husbands death?
the husbands death certificate only
35
In resolving a dispute for persons who in a TIC, want to sever, and another person wants to keep the property, what is the process for resolving the dispute?
Make an application to the court under s14 TOLATA and the court may make such order as it thinks fit
36
What the court considers when applying s14 TOLATA [disagreements between co owners]
- intentions of the person who created trust
- subject matter
- any minors/kids
- secured creditors
37
When is an easement created under the Wheeldon v Burrows Rule [quasi to easement]
- if continuous and apparent [visible path]
- necessary for reasonable enjoyment [avoids a dangerous road]
- used at the time of sale
38
Wheeldon v Burrows [1879]
This case established a common law rule where quasi-easements (apparent and continuous uses) can become legal easements upon the sale or division of land.
🧠 Rule:
When a person sells part of their land, the buyer may acquire certain rights over the land retained by the seller if:
The use was continuous and apparent (e.g. a visible path or pipe),
The use was necessary for the reasonable enjoyment of the land being sold, and
The use was being exercised at the time of the sale.
📌 These rights become easements by implication, not by express grant — and only benefit the grantee (the buyer), not the grantor (the seller).
🏡 Example:
Owner of one large plot uses a pathway over part A to access part B.
Sells part B to a buyer.
If the path is visible and necessary for using B, the buyer may acquire a legal easement over A.
39
Section 62 Law of Property Act 1925
This is a statutory mechanism that can convert informal permissions ("licences") or quasi-easements into full legal easements upon a conveyance of land.
🧠 Key Features:
Applies automatically on a conveyance of land unless excluded.
Converts any "privileges, easements or advantages" in use at the time of conveyance into legal easements.
Works for both the buyer and seller, unlike Wheeldon v Burrows.
Requires diversity of occupation or a prior use that resembles an easement.
🧩 When does it apply?
There's a conveyance of part of land.
Some beneficial use was being exercised before the conveyance.
That use is capable of being an easement.
The conveyance does not exclude s.62.
Sometimes, diversity of occupation before conveyance is required (but not always).
🏡 Example:
Owner allows neighbour to park on driveway.
Owner later sells part of land to neighbour.
s.62 can "elevate" that previous licence into a legal easement to park — if it was continuous and apparent.
40
When is an easement created by implication under s62 LPA 1925: hint = sign.
- Where there is a conveyance [5 year lease, 3 year lease/transfer of FH]
- Existing priviledge [owners consent to erect a sign]
-Diversity of occupation
41
If there are facts such as '
In 2019, the freeholder gave the tenant oral permission to park his motorbike in the garage, alongside the freeholder’s car.
In 2021, the lease expired and the freeholder granted a new lease to the tenant in identical terms to the previous lease....'
Where there is a new lease granted - this then turns the conveyance of the licence into a lease using section 62 LPA.
42
How to ensure there is an indefeasible right of way?
Deed
Landowners signature
Witnessed by 3rd party
Register deed at Land Registry
43
If there is a right of way to multiple people, who is liable to maintain it, the servient or the dominant tenant?
Noo one
44
Is a positive covenant a legal interest or an equitable interest?
An equitable interest
45
do the burden of positive covenants pass
No they do not unless mutual benfit and burden
46
When do the burden of restrictive covenants pass in equity?
If the criteria in Tulk v Moxhay is met:
1. covenant benefits the dominant land
2. covenant intends to burden the servient land
3. owner has notice of the covenant through registration
47
Remedies for breach of a positive covenant
Damages
Specific Performance only for the original covenantor
48
Damages for a restrictive covenant:
Injunction
Damages in situations where it is capable of being estimated in money.
49
How to remove/discahrge the effect of a freehold covenant;
1. Agree to be released from the covenant through money
2. Common ownership [buy both the servient and dominant land]
3. s84 LPA Upper Lands Tribunal [rare] for restrictive covenant releases.
a] Found to be obselete
b] impedes some reasonable use of the land
c] both parites agreed to discharge
d] against public interest
50
Are mortagages capable of being legal?
Yes, it is a legal third party right over land
51
What is the correct order of applying sale proceeds when a mortgagee exercises the power of sale?
Redemption of any prior mortgage (i.e. one with higher priority),
Payment of the selling mortgagee’s expenses of sale,
Redemption of the selling mortgagee’s own loan,
Any remaining surplus goes to the borrower (mortgagor).
Priority is determined by s.48 Land Registration Act 2002 — the first registered mortgage takes priority.
52
What formalities are needed to create a mortgage?
A deed [witnesses, signed, delivered]
53
Where can equity recognise a mortgage [equitable mortgage]?
Where the document lacks the requirements of a deed, equity may intervene and recognise an equitable mortgage
54
The remedies to a lender in relation to a legal mortgage
Possession [physical possession/if the property is let, that the tenants pay rent to the lender. Reasonable period for borrower to demonstrate they have a plan to pay. Court order = dwelling house
Power of sale [use if defaults for 2+ months, or breaches term of mortgage]
Appointing a reciever - use for income generated properties [collects rent and profits and applies funds to the lenders debt].
Foreclosure - rare, lender takes full ownership.
55
What interests does a mortgagee’s power of sale override, and what must it be subject to?
A legal mortgagee may exercise the power of sale under s.101 LPA 1925, once the legal date for redemption has passed and conditions under s.103 are met (e.g. 2 months arrears).
Upon sale:
The buyer takes the land free from mortgages with lower priority, as determined by s.48 LRA 2002.
The sale is subject to prior overriding interests such as a short lease (7 years or less) that existed before the mortgage (Schedule 3, Para 1 LRA 2002).
56
If there is a mortgage over the property, created by deed, how and where will it appear on the register of title to the property?
Charges Register
57
Regarding the priority between mortgages, what is the order?
Whatever one is registered first
58
priority period for mortgages
30 WORKING DAYS
59
Which remedy for a mortgage, is most appropriate for recovering the money whilst allowing the borrower to remain in occupation and recieve income the property might produce?
Debt action
60
In unregistered land, what does a puisne mortagage need to be protected by?
Land Charge
61
What is a puisne mortgage?
A legal mortgage not protected bt deposit of deeds
2nd mortgage
62
Alice has recently completed the purchase of Honeysuckle House consisting of a large
house, self- contained annexe and a large garden (‘the Property’) from Belinda. Alice has
discovered the following:
(a) Belinda created a right of way, by deed, in favour of the owner of the adjoining
Rose Cottage.
(b) Tina has exclusive possession of the self- contained annexe for the following year and
is paying market rent. Tina cannot produce any written evidence for this.
(c) Belinda created a mortgage, by deed, in favour of a Capital Bank Plc and deposited
the title deeds to the Property with the bank.
Will Alice be bound by these interests?
Each interest is capable of being legal, being an easement, lease and mortgage respectively
(see s 1(1) and (2) LPA 1925).
The easement and mortgage have been created by deed and therefore comply with the
formalities required by s 52(1) LPA 1925 and s 1 LPMPA 1989. They are a legal easement and
legal mortgage respectively.
The arrangement with Tina has the hallmarks of a lease as she has exclusive possession for
a fixed duration. A lease is capable of being a legal estate (s 1(1)(b) LPA 1925). Usually, a
lease must be created by deed in order to be legal (s 52(1) LPA 1925). However, the lease
is for a duration of three years or less and meets the criteria in s 54(2) LPA 1925 (granted
in possession, at the best rent reasonably obtainable and without a fine or premium) and,
therefore, requires no formalities. It is a legal lease.
The easement, lease and mortgage are binding on Alice. They are legal estates or interests
and therefore bind the world
63
A good proof of title includes:
- at least 15 years
- shows ownership of legal/equitable estate
- describes the land clearly
64
when are land charges protected and when can they bind the buyer?
if they are registered, this constitutes actual notice.
65
Class C[iv]
Estate Contract
66
Class D ii
Restrictive Covenant
67
Class Diii
Easement
68
Class F
Home Right
69
What are pre 1925 or equitable interests in unregisitered land bound by?
- good faith purchasor
- consideration given
- no notice
70
actual notice
buyer knows eequitable interest exists
registered
71
constructive notice
whe inspecting land/fail to inquire/dont make the right inquries
72
imputed notice
suveyor/solicitor/agent knows
73
what is overreaching?
paying the purchase money to a min of 2+ trustees, then theres no longer a beneficial interest
74
on an unregistered property, will a buyer be bound against a legal easement?
yes as binding against the whole world
75
A successful claim for an overriding interest needs either:
interest + obvious actual occupation
or
interest + non-obvious actual occupation + actual knowledge
76
what does a qualified covenant mean for consent?
the landlord can withold their consent if it is reasonable to do so
77
if there is a second legal charge over someones house, and there already is a legal mortgage, what should the bank do to protect their interest
register on charges register
78
On unregistered land, what out of these needs to be registered as a land charge to be enforceable?
1. lease of 7 years
2. interest under a resulting trust
3. easement of 10 years by deed
4. restrictive covenant from 1922
5. easement of 2 years granted in writing, signed by the grantor and grantee and containing all agreed terms
easement of 2 years granted in writing, signed by the grantor and grantee and containing all agreed terms
registered as a class c [iv] land charge
79
Can a landlord serve a valid s.146 notice for breach of covenant in a long residential lease?
Only if the tenant has:
Admitted the breach, or
A tribunal, court, or arbitrator has determined that the breach occurred
(s.168 Commonhold and Leasehold Reform Act 2002).
Without this, a s.146 notice is ineffective, and the landlord cannot begin forfeiture proceedings.
Physical re-entry is prohibited in residential tenancies under the Protection from Eviction Act 1977.
80
What is a mortgage protected by?
2 entries on the charges
1 entry on the proprietorship
two entries in the Charges register; one giving the date and purpose of the charge and one stating the identity of the lender. The lender may also wish to register a restriction in the Proprietorship register preventing the borrower from making a disposition without the consent of the lender.
81
Under the SCPC, who is liable to pay delayed completion money
buyer and seller
82
Under the SC, who is liable to pay delayed completion money
buyer only
83
When do you need a court order to sell a property under a mortgage
For residential properties
84
difference between the pre-contract searches and post contract
pre = desktop environmental search etc
post = company search, search of the whole/part
85
if the property is generating income, such as a hotel, then what needs to be appointed?
RECIEVER
86
for these land charges
esttae contract, restrictive cov, EQUITABLW easements and home rights - to be bound by them, what needs to happen?
be registered
87
what should be added to the resgistar to show how the estate is being held [joint tenants or tenants in common]
a restriction on the proprietorship register
88
to be bound in registered land - for a home right for example, all you need to do is
REGISTER IN THE CHARGES
89
to be bound in UNregistered land - for a home right for example, all you need to do is
REGISTERER AS A CLASS F CHARGE
OR A CLASS C[II] OR A CLASS D [III] ETC
90
In unregistered land, mortgages, easements etc ....
BIND THE WORLD
91
For severance to be effective it must be in..
Writing
92
over reaching only applies to what interests
trusts interests
93
Passing the Benefit and Burden of Covenants – Super Simplified
✅ COMMON LAW
Benefit (positive or negative):
✔ Can pass — if it touches and concerns the land and parties intended it.
Burden (positive or negative):
❌ Cannot pass — except sometimes for positive covenants where there's a mutual benefit and burden (very limited use).
✅ EQUITY
Benefit (only really applies to restrictive covenants):
✔ Can pass by:
Statutory annexation (s.78 LPA 1925 – default route)
Express annexation (specific wording)
Assignment (must be done each time)
Burden (only restrictive covenants):
✔ Can pass under Tulk v Moxhay if:
Covenant is negative
It touches and concerns the land
Land to benefit is identified
It was intended to run
