PLP - Core principles of land law Flashcards
(20 cards)
Co-ownership - Features of Joint Tenancy
- JT each own undivided, equal interest in the whole of the property
- Includes right of survivorship
- There can be no more than four JTs
Co-ownership - Features of Tenancy in Common
- TICs own undivided interests, but the interests can be unequal
- No right of survivorship- pass through intestacy or leave their interests to someone in their will
When is a Tenancy in Common Appropriate
- When the owners do not want survivorship to apply.
- When the owners have contributed in unequal shares to the purchase price.
- When the owners have entered into a commercial transaction, for example, when they are business partners who have bought a business property.
What is Severance of Joint Tenancies and how does it occur ?
Severance: Converting equitable interest to tenancy in common
Since the legal estate must be held as a joint tenancy, it is only possible to sever the joint tenancy in equity.
Severance can occur by:
* Giving the other joint tenant(s) written notice of a desire to server (s36 (2) LPA 1925)
* Treating their share as separate, by a JT selling their interest in the land
* Mutual agreement of the co-owners
* Bankruptcy
Implied Trust of Land - Resulting Trust
A resulting trust will arise when:
- a person, who does not hold legal title to property, makes a contribution to the purchase price of the property;
- there is no evidence that the contribution was intended as a gift or a loan; and
- the contribution must be of all or part of the purchase price at the date of acquisition (not subsequent to it).
Implied Trust of Land - Constructive Trust
Agreement + detrimental reliance
The non- legal owner (asserting the benefit of the agreement) must show that they have relied upon the agreement to their detriment or significantly altered their position.
The following are examples of detrimental reliance:
* Paying for improvements to the house out of their own money
* Paying all of the household bills to allow the legal owner to pay the mortgage
* Working unpaid in the legal owner’s business.
Note: The detriment must be linked to the agreement and not related to any other motive, such as love and affection.
Conduct + direct financial contribution
- The required conduct is payment towards the purchase price initially or payment of the mortgage payments by the non- owning party
Overreaching
A buyer may take free of a beneficiary’s interest under a trust through a legal process called overreaching if:
- The purchase money is paid to a minimum of two trustees and
- This payment transfers the interest of the beneficiary from the land to the money
Buyer must ensure:
- a second trustee is appointed to overreach the deceased’s beneficial interest
- alternatively, obtain a written release from the beneficiary of their right which is done by having the non-owning party sign the contract prior to exchange
What is an easement ?
An easement is a right which exists over a piece of land (the servient tenement) which benefits a different piece of land (the dominant tenement).
How are legal easements created ?
A legal easement must be created by deed and they must either be for a fixed period or an unlimited one.
Methods of creating easements ?
Express grant/ reservation
- An express grant of an easement is where the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner.
**Implied by necessity **
- An easement of necessity would arise on the sale of a land- locked parcel of land. This is where the land has no means of access to it from the public highway. The circumstances in which the law is willing to imply the grant of an easement of necessity are extremely limited.
Implied by common intention
- A common purpose known to the parties. The right claimed is needed in order for the common purpose to be fulfilled.
The rule in Wheeldon v Burrows
- The land was in common ownership and the owner exercised quasi- easements over their own land. The land owner then sold part of the land.
Section 62 LPA 1925 / Pass on conveyance
- It has the effect that on a conveyance of land, if nothing to the contrary is stated in the deed, easements enjoyed on the land will pass to the buyer upon purchase.
Prescription
- A right that has been exercised for 20 years (30 years for profits) or more as between two distinct parcels of freehold land.
Passing of the burden of freehold covenants
Restrictive covenants: – attached to the land, burden and benefit passes on the sale of the land.
Positive covenants: burden and benefit does not pass, it can only pass by an indemnity covenant.
Indemnity covenant
- It is always essential that the original covenantor, obtains an indemnity covenant when they sell on as they will always remain liable for the original covenants and new owners will not be liable for breach of positive covenant unless they have given an indemnity covenant.
- Chain of indemnity must be continued
Methods for the Modification and discharge of restrictive covenants
1) Express release
2) Common ownership
3) Application to Lands Chamber of the Upper Tribunal under s 84 LPA 1925
4) Insurance
Modification and discharge of restrictive covenants - Express Release
- The covenantee(s) may agree to release or modify a covenant (restrictive or positive).
- A deed is required, entered into by the owners of the servient and dominant land.
- Payment (or some other value) is usually negotiated for such a release.
- It is likely to mean you cannot go on to choose the option of insurance
Modification and discharge of restrictive covenants - Common ownership
Where the servient and dominant land come into common ownership, the covenant (restrictive or positive) will be extinguished
Modification and discharge of restrictive covenants - Application to Lands Chamber of the Upper Tribunal under s 84 LPA 1925
The Lands Chamber may make an order if it is satisfied that one of the conditions in s 84(1) LPA 1925 is fulfilled:
- Covenants are obsolete or
- of no substantial benefit
Disadvantages
1) Difficult to obtain for recent covenants
2) Takes some time to obtain a decision
Modification and discharge of restrictive covenants - Insurance
- This relates to restrictive covenants only.
- An insurance policy is purchased for a one- off premium.
- In the event of the dominant owner(s) seeking to enforce the breach of a restrictive covenant, the insurer accepts the financial risks of such action.
- It would be a requirement of the insurance policy that you did not try and obtain the covenantor’s consent to the changes in advance, which would put him on notice.
- A restrictive covenant insurance policy is generally not available where an approach has been made to a person with the benefit of the covenant alerting them to their rights.
- Insurance is not a usual option for recent covenants and where the person with the benefit (covenantor) is still very much around.
How do easements appear in title deeds (wording)
Easements will often appear in a conveyance beginning with the words ‘EXCEPTING AND RESERVING’ or ‘SUBJECT TO…’
What is a positive covenant
An obligation to maintain a positive act.
What is a restrictive covenant
An agreement by a landowner to refrain from doing something on the land.
