Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

FLK 2 > Property > Flashcards

Property Flashcards

1
Q

Are proprietary rights enforceable
Are personal rights enforceable

and how? and against who?

A

Proprietary rights enforced by action in rem (use or possession of land is recoverable) + enforceable against 3P

Personal rights - Enforced by personal action for damages + Bind only original parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

proprietary rights x6

A
  1. freehold and leasehold estate
  2. easement
  3. mortgage
  4. restrictive covenant
  5. estate contract
  6. beneficial interest in trust of land
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Determining status of right in land depends on x3

A
  1. nature - substantive characteristics
  2. creation - formality requirements
  3. protection - registration to bind purchaser
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is an estate and what types of estate exist + what duration of each exist

A

proprietary right of POSSESSION

freehold (forever) - fee simple absolute in possession + absolute ownership

leasehold estate (certain duration)
- residue of estate after granting lease = freehold reversion (belong to landowner)
- tenant holding leasehold estate = leasehold reversion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is an interest + is it enforceable?

A

proprietary right of limited use

enforceable in rem + capable of being enforced against 3P

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

3x legal interests + what remedies available

A

Mortgages
Easements (forever / certain term)
Rights of entry

Automatic right to damages + equitable remedies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Equitable interest x4 + what remedies

A

restrictive covenants
Estate contracts
Interests in trust of land
Easements granted for uncertain term

NO automatic right to damages, only at court’s discretion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Stages of sale

A
  1. exchange of contract (optional)
  2. completion of deed
  3. registration
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Formalities for estate contracts

A
  1. writing
  2. expressly agreed terms
    3.signed by BOTH parties
    a. one doc signed by both; or
    b. 2 identical docs signed by each party + copies exchanged
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Formalities of deed - and what deed needed if unregistered land / registered land

A

Unregistered land = conveyance
Registered land = transfer

Formalities
1. intended to be a deed
2. Validly executed
3. Delivered

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

When is legal title acquired - registered or unregistered land

A

registered = only acquired once legal title registered

unregistered = legal title acquired at completion + trigger requirement to register land within 2 months of completion, if not legal title revert back to seller

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

4 methods of transfer of land

A
  1. sale
  2. will
  3. gift
  4. operation of law e.g. bankruptcy = automatic transfer
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

effect of a binding estate contract

A

equitable interest transferred to buyer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

If material term in contract is varied what must you do for it to be valid

A

fulfil all formalities of a valid contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Types of estate contract x5

A
  1. sale contract
  2. contract for lease
  3. option agreement
  4. right of preemption
  5. failed legal estate / interests
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what is a contract for lease + why used

A

landlord + tenant enter contract to commit themselves to enter lease in the future

premises not ready for immediate occupation, but parties want certainty that lease will be entered into

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what is an option agreement + what is its effect?

A

Gives another party right to serve notice of wishes to buy land during option period

If notice served, seller must sell land to buyer, but buyer not obliged to exercise option and buy land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what is a right of preemption + its effect

A

Gives another party right of first refusal if landowner decides to sell land → landowner cannot sell without first offering to right holder

NO obligation to sell, and NO ability for right holder to require land to be sold to them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what are the requirements for a failed legal estate / interest to be recognisable as an equitable estate contract

A

All requirement of land contract met

Remedy of specific performance is available i.e. Claimant has clean hands and NOT breached any contractual terms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

3x remedies for breach of estate contract

A
  1. damages
  2. specific performance
  3. injunction
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Compulsory land registration: when? and what dates?

applies to what type of land?

A

Each time unregistered land sold for the first time

If transfer for value: 1990
if transfer not for value (gift): 1998

BOTH registered -> update register - failure to do so = not legally recognised transaction

and unregistered -> first registration OR voluntary registration (reduced fees)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

4x triggering events of compulsory land registration

A

TRANSFER of freehold estate by sale + gift + court order

GRANT of lease >7 years

Assignment of lease of unregistered land with >7 years left to run

First legal mortgage of freehold / leasehold >7 years left to run

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the mirror principle of land registration

A

Register reflect who owns + 3P rights that bind property

except overriding interests

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the curtain principle of land registration

A

Records legal title (i.e. ownership), but not beneficial title

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the insurance principle of land registration

A

Accuracy of register guaranteed by State → if error, it will be corrected + anyone suffering loss will be compensated

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

what does property register include

A

Description of land (address) by reference to title plan

Type of estate (freehold / leasehold)

Rights BENEFIT land (easements)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

what does proprietorship register include

A

Name + address of landowner

restrictions affecting right to sale

class of title

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

what does charges register include

A

rights BURDENING land

  • mortgages in favour of lender
  • restrictive or positive covenants
  • easements
  • leases
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is land x3

A

Surface (inc. mines and minerals); AND

Physical things attached to land – fixtures; AND

Benefit of proprietary rights attached to land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

what airspace included in land

A

such height necessary for ordinary use + enjoyment of land

includes lower airspace (e.g. structure cannot overhang in your property) but NOT upper airspace

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

what ground below land included

A

up to 300m except gold, silver and treasure, coal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Legal test to determine if fixture or chattel x2 and what takes priority

Examples of fixtures x2

A
  1. degree of annexation - presumption of fixture
  2. purpose of annexation - takes priority by looking objectively at purpose

a. Incorporated chattels into architectural design = fixture

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

who is the mortgageee

A

lender who loans

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

who is the morgagor

A

borrower who grants right over property as security for loan

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Formalities of legal mortgages

A
  1. deed
  2. registered
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

formalities of equitable mortgages
1. mortgage of equitable interest
2. defective legal mortgage

A
  1. mortgage of equitable interest
    a. writing
    b. signed by guarantor
  2. defective legal mortgage
    a. writing
    b. all agreed terms
    c. signed by BOTH parties
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Once mortgage repaid in full what do you do on the register

A

CANCEL mortgage entries at charges register at Land Registry
a. if over whole of land: DS1
b. If over part of land: DS3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What is equity of redemption

A

recognises borrower as true owner + right to redeem and can repay loan at any time after legal date of redemption

(equity = market value - outstanding debt)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What does equity of redemption protect x3 =

A
  1. Clauses postponing or preventing redemption
  2. Collateral advantages
  3. Unconscionable terms
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

2 types of undue influence

A

Acts of improper pressure or coercion

Taking advantage of influence in a relationship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

what relationships have irrebutable presumption that influence of trust and confidence exists + what relationship does not

A

Parent - minor child
Guardian - ward
Trustee - beneficiary
Solicitor - client
Doctor - patient

NOT husband - wife or parent- adult child

41
Q

What does party alleging undue influence have to prove

A
  1. Relationship of trust and confidence (or if fall within irrebutable presumption); and
  2. Transaction which requires explanation (e.g. suspicious transaction / high value)

NB: husband/ wife offering matrimonial home as security for loan is NOT a transaction which requires explanation
–> need to prove unfair advantage taken off rs

42
Q

What are the limits on equitable relief granted if undue influence proven x2

A

If delay in making claim → delay DEFEATS equity

If C does not come with clean hands

43
Q

what is effect if C successfully argues undue influence

How can a lender avoid claim of undue influence

A

mortgage will be unenforceable against them

Lender can give notice of risk of undue influence IF one party in non-commercial setting standing as surety for another party
(does NOT apply if purpose of loan for joint benefit of co-owner)
1. write to party not benefitting from mortgage to seek confirmation from independent solicitor
2. must not lend until confirmation received

44
Q

what must a nominated independent solicitor do if lender gave their client notice of risk of undue influence x4

A

Meet party NOT benefiting face-to-face + on their own

Explain transaction fully

Keep written detailed attendance note

Send certificate to bank

45
Q

What is the order of priority of mortgages over registered land - for legal mortgages and equitable mortgages

A

Legal mortgages =
1. Priority depends on order entered on REGISTER
2. If created at same time → application for registration specifies order

Equitable mortgages =
1. Priority: order of CREATION

  1. Equitable mortgage may be protected by entering notice on charges register → take priority over ALL subsequent mortgage (legal / equitable)
    NB: entry of notice does NOT affect priority between equitable mortgages
46
Q

How can lenders expressly agree to modify the order of priority by postponing a pre-existing interest:

A
  1. enter deed of priority / intercreditor deed; and
  2. registered
47
Q

what is a legal lender with secured legal mortgage’s rights in event of default of repayment x5

A
  1. Debt action
  2. Possession
  3. Sale
  4. Receiver
  5. Foreclosure
48
Q

what is the test for unconscionable terms e.g. extremely high interest rates for a borrower

A

a. is term imposed in a morally reprehensible manner

b. is there clear imbalance of bargaining power - void UNLESS borrower has poor credit history / lender in financial difficulties

49
Q

can a clause postpone or prevent redemption

A

Cannot prevent redemption totally; but
May postpone IF no clog or fetter on equity of redemption

50
Q

can a lender benefit from collateral advantages

A

yes - if it ends within mortgage term

and is not unconscionable (Except solus tie - seller make condition that borrower buys all its supplies from lender)

51
Q

can lender include option to purchase mortgaged property

A

depend on substance of transaction -> can be upheld if independent of mortgage + in substantially separate transaction

52
Q

what is debt action

+ what is the limitation period

A

Action against borrower used in addition to other remedies

if value of mortgaged property < outstanding mortgage debt = negative equity

Lender may take possession / sell property and pursue debt action to recover shortfall

recovery of capital = 12 years

recovery of interest = 6 years

53
Q

how does lender take possession?

A

last resort remedy - lender must explore alternative arrangements e.g. extending mortgage term / scheduling new payment plans

Taking physical possession (initial step before sale) enables lender to offer property for sale with vacant possession + free from rights of borrower

54
Q

who is the receiver and why does lender appoint them

A

deal with tenant issues

generate income from land before sale + apply income toward outstanding mortgage debt

acts as borrower’s agent - lender not liable for receiver’s negligence

55
Q

how does foreclosure work + what is its advantage

A

Freehold vests in lender + borrower lose all rights – even if small outstanding amount of debt

Lengthy procedure – court usually order sale INSTEAD especially if value of property significantly > outstanding debt

Even after final judgement of foreclosure – borrower can reopen case if have means to pay

ADV for borrower’s pov: order of foreclosure extinguishes all other secured mortgages

56
Q

When does lender’s right to repossess arise + what can court do?

A

when mortgage deed signed

Court expects lender to attempt alternative steps before possession of RESIDENTIAL property

-> court order NOT necessary, but good practice to avoid risk of criminal offence of forcing into property

Court may postpone possession for reasonable period
–> adjourn / stay IF borrower likely able to repay before end of mortgage term / borrower effect sale themselves (evidence of exchange of contracts)

57
Q

Lender’s right to sell - how does it arise?

A
  1. express power of sale (set out in mortgage document)

OR

  1. implied power of sale
    a. if capital + interest mortgage -> arises as soon as one payment becomes due
    b. If interest only –> becomes due at legal redemption date

Criteria:
a. Notice requiring payment of whole loan served by lender + borrower defaulted
b. unpaid interest arrears for 2 months
c. Breach of mortgage provision

58
Q

Lender’s duties when exercising right to sell x4

A
  1. After sale, lender = trustee of surplus sale proceeds + must hand to next entitled person (another lender / borrower)
  2. Duty to borrower to take reasonable care to obtain true market value/ proper price for property NOT perfection to price
  3. Unfettered discretion as to when to sell, NOT expected to delay
  4. duty to take expert advice to method of sale
59
Q

What is an easement

A

proprietary right to use land which belongs to somebody else

  • more limited than exclusive right to occupy
60
Q

what is difference between granting or reservation of a lease

A

Grant = = landowner sells/ leases part of land + GIVES buyer/tenant easement over land they retained

RESERVATION = landowner sells/leases part of land to buyer/tenant + RETAINS right over land in their favour (strictly construed to the specified amount reserved)

61
Q

What case established the rules to determine if it is an easement or just a licence

A

Ellenborough park test

  1. Right is CAPABLE of being an easement
  2. NO disqualifying factors apply
  3. Right acquired as an easement
62
Q

how is a right CAPABLE of being an easement x4

A

a. dominant AND servient land

b. right must accomodate dominant tenement
–> not expressly personal right
–> if connection between biz and land, right benefitting biz will also benefit land
–> proximity between d + s land

c. diversity of ownership

d. right has been GRANTED + valid deed
-> capable grantor: >18 y/o + own legal estate
-> capable grantee = indv, not group
-> reasonably exact description (clear nature + extent of right)
-> must NOT be negative in nature

63
Q

what are the disqualifying factors preventing a right from being an easement

A

a. additional expenditure

b. no exclusive possession of servient tenant - must be of reasonable use

c. permission

64
Q

how can a right be ACQUIRED as an easement + formalities involved

A

a. EXPRESS grant of easement -
1. express legal easement - deed + registered
2. express equitable easement - writing + signed by grantor
3. failed legal easement recognised as equitable easement - writing + all terms + signed by both partied

b. IMPLIED by 4 methods
1. necessity
2. common intention
3. wheelbarrow v burrows
4. LPA1925, s62

65
Q

what are the requirements for implication of easement by necessity

A
  1. Impliedly GRANTED or reserved -> into deed OR contract
  2. only if essential for use of dominant land
    -> right of way to OTHERWISE landlocked land
    -> no alternative options
    -> right for vehicles, even if right on foot exists
66
Q

requirements for implication of easement by common intention of parties

A
  1. Impliedly GRANTED or reserved -> into deed OR contract
  2. land sold/ leased for particular purpose which CANNOT be fulfilled without easement sought
  3. parties did not have opportunities to reserve this right - e.g. including in a second lease
67
Q

requirements for implication of easement by wheeldon v burrows

A
  1. Impliedly GRANTED (NOT reserved) -> into deed OR contract
  2. before transfer of part - common owner + occupier of whole land who enjoyed quasi-easement right
  3. quasi- easement right must be:
    a. continuous + physical evidence of existence
    b. necessary for reasonable use -> enhances land (e.g. more convenient than alternatives)
    c. used by common owner in recent past
68
Q

requirements for implication of easement by LPA1925, s62

A
  1. Impliedly GRANTED (NOT reserved) -> into deed (NOT contract)

Two situations
a. land divided BEFORE informal permission given
(1) prior diversity of occupation
(2) informal permission granted
(3) subsequent conveyance upgrades informal permission + implied into new lease

b. land divided for FIRST TIME
-> similar to wheeldon v burrows
(1) continuous + physical evidence

UPGRADES informal permission into legal easements

69
Q

requirements of acquiring right of easement by prescription

A
  1. 20 years continuously
  2. right used without
    a. force
    b. secrecy
    c. permission

only between 2 freehold owners (not tenant)

70
Q

What must dominant owner have to enforce easement

A
  1. benefit of easement -> will pass with dominant land
71
Q

enforceablity of express OR implied LEGAL easement against servient owner

registered land

A

registered land
1. express legal easements = always enforceable

  1. implied = binding as overriding interest provided:
    a. new owner aware; OR
    b. obvious on reasonably careful inspection; OR
    c. exercised within 1 year before transfer
72
Q

enforceablity of express OR implied LEGAL easement against servient owner

unregistered land

A

unregistered land –> for both express + implied
1) legal interests bind the world = automatically binding

2) transfer of servient land triggers compulsory first registration = binding as overriding interest on first registration

73
Q

enforceablity of express OR implied EQUITABLE easement against servient owner

registered land

A

Express equitable easement
1. always enforceable against grantor but must be PROTECTED to be enforceable against new servient owner
a) enter notice in charges register

Implied equitable easement
-> defeated if servient land sold

74
Q

enforceablity of express OR implied EQUITABLE easement against servient owner

unregistered land

A

must be PROTECTED to enforce against new servient owner

1) class D(iii) Land Charge

75
Q

Formalities for a covenant

A
  1. writing
  2. signed by grantor
76
Q

What does successor covenantEE to enforce covenant against successor covenantOR must show:

A

BENEFIT of covenant passed to successor covenantee; = enables them to sue

BURDEN of covenant passed to successor covenantOR = enables them to be sued

77
Q

What test determines if covenant is positive or negative

A

Haywood ‘hands in pocket’ test

If covenant requires expenditure by covenantor of money/ effort/ time = POSITIVE covenant

Look at substance not form

78
Q

equitable rules: does the burden pass to the successor covenantor? + what case establishes the 4x requirements

A

Burden is enforceable directly against person in breach:

Tulk v Mohay Rule :
1) RESTRICTIVE covenant; and

2) Covenant accommodates the dominant land;
a) covenantee + successor hold interest in dominant land at time of creation and enforcement
b) covenant touch + concern land - i.e. only benefit dominant owner whilst own land, affects nature/use of land, not personal
c) dominant + servient land proximity

3) Intention for burden to run -
a) express
b) implied - covenant deemed to be made by covenantor on behalf of its successor (unless contrary intention)

4) Notice
a) Registered land = entry of notice on charges register
b) Unregistered land = Class D(ii) Land Charge

79
Q

2x equitable remedies if successor covenantee wants to enforce breach directly against successor covenantor

A
  1. injunction
    a. ongoing or threatened breach = prohibitory injunction
    b. breach occurred = mandatory injunction
    NB: delay defeats equity -> claimant must apply immediately after breach
  2. damages - if injunction too oppressive
80
Q

common law rules: does the burden pass to the successor covenantor?

+ what remedies available to covenantee for breach by covenantor

A

General rule = burden does NOT pass to a successor → covenant is UNENFORCEABLE against successor covenantor

Continuing liability of original covenantor – burden remains with them = can be sued for own breaches + breaches of successors
a) Expressly; or
b) Implied by statute

Remedy = damages against original covenantor

81
Q

Exception to the general rule that burden does not pass to successor covenantor

A

doctrine of mutual benefit + burden - Halsall v Brizell

Burden can pass to a successor covenantor IF covenantee grants: benefit of easement to the covenantor + imposes a connected burden

  1. clear link between burden + benefit
  2. genuine choice to take benefit
  3. benefit + burden conferred in same transaction

OR

Grant of long lease exception - all covenants in leases enforceable by and against successors in title via privity of estate

82
Q

passing benefit by equitable rules

A
  1. Covenant touch + concern dominant land (Tulk v Mohay)
  2. Passed by either:
    a) annexation
    b) assignment
    c) building scheme
83
Q

how does annexation pass benefit to successor covenantor - equitable rules

A

occurs when covenants CREATED + intend benefit becomes permanent part of dominant land + passes automatically if sold

a) expressly; OR - covenant made for named land, noy people

b) implied by statutory UNLESS excluded expressly / impliedly

84
Q

how does assignment pass benefit to successor covenantor - equitable rules

A

occurs at time dominant land is SOLD + benefit exists as separate interest from land, must be passed every time land is transferred

1) writing; and
2) signed by person disposign of benefit

85
Q

how does BUILDING SCHEME pass benefit to successor covenantor - equitable rules

A

ONLY applies to RESTRICTIVE covenants

PASS IF: Parties’ intention to create scheme of mutually enforceable obligations

86
Q

How can benefit pass to successor covenantor at common law + what formalities

A

1) express assignment
a) writing
b) notice

2) implied assignment - automatically passes every time land transferred
a) covenant touch + concern land
b) Intention that benefit run with dominant land (express / implied by statute)
c) Original covenantee has legal estate when covenant made
d) Successor covenantee hold legal estate at enforcement

87
Q

Methods to discharge a restrictive covenant x4

A

1) automatic discharge - same person becomes owner of both dominant + servient land

2) expressly agreed - enter deed

3) impliedly agreed - doing nothing when covenant breached openly

4) statutory discharge / modification - apply to Upper Tribunal (Lands Chamber)

88
Q

Grounds for applciation to Upper Tribunal (Lands Chamber) to discharge a restrictive covenant x4

A

Become obsolete due to changes in character of property or neighbourhood

Continued existence impedes reasonable use of land
a. no practical value
b. contrary to public interest

Dominant owners expressly/ impliedly agree a release

Dominant owners will NOT suffer injury

89
Q

Basic rule of priority for registered land + its effect + who it applies to

A

ONLY applies to donees

take land subject to all pre-existing rights (regardless of protection)

90
Q

Exception to basic rule of priority for registered land + its effect + who it applies to

A

Registrable disposition of registered estate made for valuable consideration (most land transactions)

take land subject to protected rights + overriding interests but NOT unprotected pre-existing rights which are lost forever

91
Q

what are 5 legal interests that are registrable dispositions

A

TRANSFER of FREEHOLD / LEASEHOLD estate

GRANT of new LEASE >7 years

Express LEGAL EASEMENT

GRANT of LEGAL MORTGAGE

Grant of landlord’s RIGHT OF ENTRY

92
Q

How can equitable interest be binding and enforceable against 3P

A
  1. entry of notice
    OR
    entry of restriction (interests in trust of land + short legal leases 3 years or less)
  2. overreaching - only for interests in trust of land
93
Q

what happens if overreaching fails

A

beneficial interest will remain in the land and bind a purchaser as an overriding interest IF the beneficiary is in actual occupation (not automatically binding)

94
Q

3x overriding interests

A
  1. legal leases 7 years or less
  2. equitable interests held by those in actual occupation
    a. equitable interest in trust of land
    b. equitable leases
    c. option to purchase
  3. Implied legal easements
95
Q

2x exceptions for an equitable interest to be binding as an overriding interest even if actual occupation

A
  1. Interest holder asked about right AND failed to disclose – when reasonably expected to do so
  2. NO obvious occupation on reasonably careful inspection AND person who made disposition NO actual knowledge about interest
96
Q

Pre-1926 vs. Post-1926 are legal interests enforceable against 3P

A

Pre and Post: legal rights bind the world = automatically enforceable

Post-1926 exception = puisne mortgage must be registered as a Land Charge to be protected

97
Q

Pre-1926 vs. Post-1926 are equitable interests enforceable against 3P

A

Pre-1926:
1. NOT automatically binding on successor in title → Only binding IF successor aware / should have been aware of interest

  1. if successor = bona fide purchaser for value of legal estate without notice of prior interest i.e. equity’s darling -> takes land FREE from interest (doctrine of notice)

Post-1926:
1. need protection as Land Charge

2, but not all equitable interests can be protected so doctrine of notice applies
a.Equitable easements and restrictive covenants created before 1926
b. Equitable interests in trust of land NOT overreached

98
Q

Class of land charge for:
Puisne mortgage
Estate contract
Restrictive covenant created after 1926
Equitable easement created after 1926
Spouse’s matrimonial right of occupation

A

Class C(i)
Class C(iv)
class D(ii)
Class D(iii)
Class F

99
Q

what needs to be included in an entry of a land charge

A

name of landowner according to name in title deed, not birth certificate

if fail to enter correct name = VOID

100
Q

What are the requirements to be equity’s darling and take land free of all equitable interests

+ what is effect of equitable interest against equity’s darling

A

bona fide - good faith
Purchaser for value – acquire interest in land by paying and otherwise than by law (e.g. intestacy)
legal estate - freehold / leasehold / charge by legal mortgage
WITHOUT notice - inspects land but finds no evidence of equitable interest
a) actual notice - buyer know of interest
b) imputed notice - notice of interest by buyer’s agent
c) constructive notice - investigation of title deeds + inspection of land -> presence of tenant on land places buyer on constructive notice of tenant’s interest

Equitable interest is VOID against equity’s darling and cannot be revived

101
Q
A

FLK 2 (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions