Property Land & SAC Flashcards
A solicitor is acting for a client on the purchase of plot of land from a company. Title to the property is unregistered; the epitome of title reveals several previous individual and corporate owners. The local search, water and drainage search, pre-contract enquiries of the seller, environmental desktop search and flood search have been carried out.
Which additional pre-contract searches should be carried out for the plot of land?
A-An Index Map search; Land Charges search against the seller and previous estate owners; company search against the seller.
B-An Index Map search; Land Charges search against the seller; company search against the seller.
C-An Index Map search; Land Charges search against the seller and previous estate owners; company search against the seller and previous incorporated estate owners.
D-An Index Map search; Land Charges search against the seller; company search against the seller and previous incorporated estate owners.
E-An Index Map search; Land Charges search against previous estate owners; company search against the seller.
Option C is correct. An Index Map search is required to check no part of the land is registered and there are no cautions against first registration. A Land Charges search is required against the seller and all previous estate owners to check for the registration of certain incumbrances, which if registered will be binding on the buyer. A company search will check the capacity, the authorised signatories and any existing charges that may exist over the property being sold. Title is unregistered so a company search will need to be carried out against all previous incorporated estate owners revealed by the epitome of title not just the seller.
Option A is wrong because title is unregistered so a company search needs to be carried out against all previous incorporated estate owners revealed by the epitome of title.
Option B is wrong because a Land Charges search is required against the seller and all previous estate owners, and a company search required against the seller and all previous incorporated estate owners.
Option D is wrong because a Land Charges search is required against the seller and all previous estate owners.
Option E is wrong because a Land Charges search is required against the seller, and a company search required against the seller and all previous incorporated estate owners
A client contributed £50,000 towards the purchase price of a matrimonial home. The client’s spouse is the sole legal owner of this property. The client has now left the property as the couple have separated. On checking the Charges Register of the registered title to the property, there is no related entry.
Does the non-owning spouse have a statutory “Home Right” in the property?
A-Yes, because the client contributed financially to the acquisition of the property.
B-Yes, because the client intended the property to be the matrimonial home.
C-No, because the Home Right has not been noted on the Charges Register of the title to the property.
D-Yes, because the Home Right creates a statutory right of occupation in relation to all property held by a married couple.
E-No, because although a Home Right may have existed, such a right would have terminated when the couple separated.
Option B is the correct option because all the conditions required to establish a Home Right under the Family Law Act 1996 (namely the parties are legal married or civil partners and the home is, has been or is intended to be the matrimonial home) have been satisfied on the facts.
Option A is wrong because a financial contribution is not a relevant requirement for establishing a Home Right under the Family Law Act 1996.
Option C is wrong because all the conditions required to establish a Home Right under the Family Law Act 1996 have been satisfied on the facts. Noting the existence of a Home Right on the Charges Register relates to enforceability against successors in title.
Option D is wrong because the Home Right under the Family Law Act 1996 can exist only in relation to the matrimonial home and not any other property.
Option E is also wrong because the Home Right under the family Law Act 1996 would end on divorce but not on separation.
Quick q:
A client is selling an investment property and wants a quick completion. It has three separate parties interested in buying the property and instructs the solicitor acting for it to send contracts out to each of the three parties.
Which of the following best describes the most appropriate course of action for the solicitor to take?
The solicitor must not mislead others so should obtain the client’s consent to informing the three prospective buyers that they will each be sent contracts.
Option B is the best answer. Under paragraph 1.4 of the 2019 Code of Conduct the solicitor must not mislead others, which includes allowing or being complicit in the acts or omissions of the seller. This means that the seller’s solicitor should inform all buyers of the seller’s intention to deal with more than one buyer, but such disclosure requires the client’s consent.
Option A is not the best answer. Whilst there is no specific requirement in the 2019 Code of Conduct to notify the prospective buyers (unlike the 2011 Code) under paragraph 1.4 of the 2019 Code of Conduct the solicitor must not mislead others, which includes allowing or being complicit in the acts or omissions of the seller.
Option C is wrong. The 2019 Code of Conduct does not provide that a solicitor cannot act for the client in such a situation. This kind of transaction is a legitimate selling technique, so long as all the prospective buyers know that they are engaged in a race.
Option D is not the best answer. The solicitor cannot disclose the fact that the buyers are in a race for the property without their client’s consent as this would breach the duty of confidentiality under paragraph 6.3.
Option E is wrong. There is no requirement in the 2019 Code of Conduct for the solicitor to only deal with one prospective buyer in such a situation.
Quick Q:
A client is selling a commercial freehold property to a buyer. The client acquired the property 12 years ago and has used it for its business which supplies goods that are taxable for VAT. The property has recently undergone a costly refurbishment in anticipation of the sale. The buyer is a business which also makes VAT-taxable supplies. The client is seeking advice about the VAT position on the sale.
Which of the following would be the best advice for the client?
The client should make an election to charge VAT to recover the input tax that it has incurred on the refurbishment.
Option E is correct. The property is an old commercial freehold property. The client has owned it for 12 years so it is more than three years old. This means the sale is exempt from VAT but subject to the option to tax. Because the property has undergone a costly refurbishment, the most appropriate option for the client would be to make an election to charge VAT on the sale so that it can recoup the VAT it paid on the refurbishment (which is known as input tax).
Option A is wrong. The property is an old commercial freehold property so the sale is not standard rated. It is exempt from VAT but subject to the option to tax. It is the sale of a new commercial freehold property (i.e. a property that is within three years of being completed) that is standard rated.
Option B is wrong. The sale will be exempt from VAT but the client does have the option to waive the exemption and charge VAT.
Option C is wrong. Whilst the client can make an election to tax because it makes taxable supplies for VAT, the prospective buyer also makes taxable supplies. This means that the buyer will be able to recover any input tax it pays on its acquisition of the property.
Option D is wrong. The sale of the property is not zero rated. The zero rate applies to the sale of a new build house by a developer.
Three years ago a landlord granted a tenant a 10-year fixed term lease of a bicycle repair shop. The tenant runs several successful businesses but is very disorganised and has often been late in paying the rent, sometimes by several weeks. This month it has already been over two weeks and the landlord still has not been paid.
The lease contains the following clauses:-
“Clause 3 The Tenant shall pay to the Landlord rent of £24,000 per annum in advance by 12 equal monthly payments on the first day of each month.
Clause 18 If the rent is unpaid for seven days after becoming due (whether or not formally demanded), the Landlord may at any time thereafter re-enter the property and the lease will immediately end”
Which of the following is the best approach for the landlord to take in respect of the outstanding rent?
A-Apply for an order of specific performance to compel the tenant to pay the rent.
B-Instruct an enforcement agent to give the requisite notice and then enter the shop and seize all of the bikes on the premises.
C-Sue the tenant for damages.
D-Pursue a debt action against the tenant.
E-Exercise commercial rent arrears recovery and if that does not work, forfeit the lease by forcibly changing the locks.
Option D is the correct answer. The lease contains an express rent covenant and it is well-within the six year limitation period (s19 of the Limitation Act 1980) so the landlord can sue the tenant for the outstanding debt. In addition, the facts suggest that the tenant has the means to pay but is just disorganised, so this could be an effective remedy.
Options A & C are wrong. Neither of these are appropriate remedies for breaches of the rent covenant. Instead, they are typically considered in breach of repair covenant cases.
Option B is wrong because although commercial rent arrears recovery (“CRAR”) is an appropriate remedy for breach of the rent covenant, the premises is a bicycle repair shop, not a shop selling bikes. As such, the bikes on the premises will have been left there by their owners to be fixed and are therefore not the tenant’s goods and cannot be seized and sold in repayment of the rental debt.
Option E is wrong because although clause 18 is a forfeiture clause and the rent has been outstanding for more than seven days, the use of CRAR first would acknowledge the existence of the lease and may therefore waive the landlord’s right to forfeit. In addition, it is a criminal offence to repossess premises by using force (s6 of the Criminal Law Act 1977).
Seven years ago a bank lent a company £300,000 to purchase a registered freehold retail unit (“the property”). The bank and the company signed a mortgage deed, but due to a clerical error, the mortgage was only registered at Land Registry three years ago. Five years ago the company borrowed a further £200,000 from a building society and this mortgage deed was immediately registered at Land Registry. The company has not paid the last five months’ mortgage payments to the bank.
Which of the following statements best describes how the proceeds of any sale will be distributed if the bank decides to exercise its power of sale?
A-The bank must firstly pay off the building society’s mortgage, then the expenses of sale and its own mortgage. If there is any money left over it must pay it to the company.
B-The bank must firstly pay off its own mortgage, then the cost of redeeming the building society’s mortgage, before paying the expenses of sale and distributing any money left over equally between themselves and the building society.
C-The bank must firstly pay off the cost of redeeming the building society’s mortgage, then its own mortgage, before paying the expenses of sale and giving any money left over to the company.
D-The bank must firstly pay the expenses of sale, then pay off the building society’s mortgage, before paying off its own mortgage and giving any money left over to the company.
E-The bank must firstly pay off the building society’s mortgage, then the expenses of sale, then its own mortgage, before distributing any money left over between themselves and the building society in proportion to the size of each party’s loan.
Option A is correct. It is the only answer which correctly lists the order in which the proceeds of any sale must be distributed, hence all of the other options are wrong. The order is found in s105 of the Law of Property Act 1925 and is as follows:-
(a) the costs of redeeming any prior mortgages (ie mortgages with priority over the selling lender’s mortgage);
(b) the lender’s expenses of sale;
(c) the lender’s own mortgage; and
(d) the balance (if any) to the person(s) entitled to the equity of redemption (ie a subsequent lender and/ or the borrower).
The order of priority between mortgages in registered land is determined by the order in which they are registered at Land Registry (s48 Land Registration Act 2002). Accordingly, although the bank’s mortgage was created first, the mortgage to the building society has priority because it was registered first.
The other options are wrong because they do not follow the order set out in s105 for the distribution of sale proceeds.
A student has signed an agreement called a “licence agreement” (not in the form of a deed) to occupy a bedroom with private bathroom in a house. There are four such bedrooms with private bathrooms in the house and each of them is occupied under separate agreements which all started on different dates. The house also comprises a communal lounge and kitchen area. The student’s agreement has been granted for the duration of one year and the student is paying a monthly rent. The agreement also provides that the house owner could require the student and the other occupiers to change rooms without notice.
Which of the following statements most accurately describes the basis on which the student occupies the house?
A-The student has a lease because they are paying a monthly rent.
B-The student has a licence because the agreement was not in the form of a deed.
C-The student has a licence because they do not appear to have exclusive possession.
D-The student has a lease because it has been granted for a certain duration.
E-The student has a licence because the agreement is called a “licence agreement”.
Option C is correct. One of the essential characteristics of a lease is exclusive possession for the occupier. The facts of this question are very similar to the facts of AG Securities v Vaughan ([1990] 1 AC 417). The occupiers of the house all occupy under separate agreements entered into at different times, only the lounge and kitchen are shared and it would appear that the house owner has retained control of the house by providing that the occupiers could be required to switch rooms. This strongly suggests that the student does not have exclusive possession and therefore only has a licence.
Option A is wrong because the payment of rent is not an essential characteristic of a lease, as established in a line of cases beginning with Ashburn Anstalt v Arnold ([1989] Ch 1). Although it is an indication that the parties might have intended a formal relationship of landlord and tenant, there are more arguments in favour of a licence existing on these facts.
Option B is wrong. Although a lease does not have to be created by deed, the essential characteristic of exclusive possession does not appear to be present on the facts, as noted above in the explanation for Option C.
Option D is wrong. The student’s occupation of the house has been granted for a certain duration and certainty of duration is one of the two essential characteristics of a lease. However, the other essential characteristic of a lease is exclusive possession and as noted above in the explanation for Option C, this does not appear to be present on the facts.
Option E is wrong because it is not the label given to the agreement that determines what it is (Street v Mountford ([1985] 1 AC 809). It is the substance of the agreement and not its form that matters.
A solicitor acts for an investment company client who purchased the freehold of a property three years ago last February. The property is subject to an occupational tenancy in favour of a vet who has always paid his rent on time and has not breached any other lease covenants. It is currently January and the lease expires on 30 October this year. The client now wants to refurbish and then use the property for its own administrative headquarters. The vet has told several of his long-standing clients that he does not want to give up the premises which are ideally located for his client base.
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Which statement best describes the action that the client should be advised to take by the solicitor to protect its position?
A-The client must serve a section 26 notice under the Landlord and Tenant Act 1954 (the 1954 Act) between six and 12 months before the contractual expiry date.
B-The client should serve a section 25 notice under the 1954 Act on the vet specifying a termination date in April of this year to allow time to organize the refurbishment plans.
C-The client can rely on the fact that it intends to occupy the property as a ground for opposing a new tenancy under section 30 of the 1954 Act immediately.
D-The client can rely on the fact that it intends to occupy the property as a ground for opposing a new tenancy under section 30 of the 1954 Act but cannot serve a s 25 notice until February this year.
E-The client can allow the vet to stay in the property and then serve a s25 notice in February next year but in the meantime apply to court for a higher interim rent to be imposed on the tenant.
Option D is correct. The client wants to recover the property to occupy it for its own business. The client will therefore be opposing the renewal of the tenancy under s 30(1)(g) of the 1954 Act. If the tenancy is terminated by a s25 notice giving 12 months’ notice served in February this year, the rule in ground 30(1)(g) (that the client has owned its interest for at least five years) is satisfied. However, the client should be reminded that the tenant might pre-empt the client and serve a section 26 request for a new tenancy earlier, which would deny the use of this ground.
Option A is wrong because the client would need to serve a section 25 notice to establish one or more of the grounds under the 1954 Act justifying termination of the lease.
Option B is wrong because the termination date cannot be earlier than the contractual expiry date of 30 October this year and the client must give no less than 6 months’ notice.
Option C is wrong because the client purchased the freehold only three years ago last February. The client cannot rely on the ground set out in s.30(1)(g) of the 1954 Act, namely that it intends to occupy the holding for its own business, as a reason for opposing the renewal of the tenancy unless it has owned its interest for at least five years before the ending of the current tenancy.
Option E is wrong because even though the five-year rule is satisfied the vet would carry on paying rent at the current level which may be below market value.
A solicitor is acting on behalf of a client who is purchasing a property. Title to the property is registered and a man is registered as sole legal owner.
The solicitor has discovered that the man’s friend has a beneficial interest in the property because she contributed to the purchase price when the man purchased it. The client wants to buy the property free from the friend’s beneficial interest.
Which of the following best describes how the client could achieve this?
A-The client should pay the purchase monies to the man because he is the current legal owner. By doing so, the client will successfully overreach the friend’s interest.
B-The client should ask for the man to be formally appointed as a trustee and for an additional trustee to be appointed and pay the purchase monies to both trustees. By doing so, the client will successfully overreach the friend’s interest.
C-The client should ask for another trustee to be appointed and pay the purchase monies to the man and to the additional trustee. In doing so, the client will successfully overreach the friend’s interest.
D-The client should pay the purchase monies to the man because he is the legal owner. It is not necessary to overreach the friend’s interest because she is not a legal owner.
E-The client should pay the purchase monies to the man because he is the legal owner. It is not necessary to overreach the friend’s interest because the purchaser will be Equity’s Darling.
Option C is the correct answer. Overreaching is a statutory mechanism by which a purchaser can buy a property free of the interests of any person with a beneficial interest under a trust. In order for overreaching to occur, the purchaser must pay the purchase monies to a minimum of two trustees. The trustees are the legal owners of the property. In this scenario, the man is the sole legal owner and the sole trustee. The friend has a beneficial interest under a trust. Therefore, in order to successfully overreach the friend’s interest, the purchaser must insist that a second trustee is appointed (i.e. another trustee in addition to the man) and pay the purchase monies to both trustees. If that occurs, then the purchaser will acquire the property free from the friend’s beneficial interest. The friend’s interest will detach from the property and attach to the sales proceeds.
Option A is wrong because in order for overreaching to take place, the purchase monies need to be paid to a minimum of two trustees. Although the man is a trustee (because he is the sole legal owner), if the purchaser paid the purchase monies to him alone then overreaching would not occur.
Option B is wrong because the man is already a trustee as he is sole legal owner. It is not necessary to formally appoint him as a trustee.
Option D is wrong because if the client wants to buy the property free from the friend’s beneficial interest, then the purchaser will need to ensure that overreaching occurs. The fact that the friend is not a legal owner is irrelevant. As stated above, paying the purchase monies to the man only will not satisfy the requirements for overreaching.
Option E is wrong because (a) if the client wants to buy the property free from the friend’s beneficial interest, then the purchaser will need to ensure that overreaching occurs. Paying the purchase monies to the man only will not satisfy the requirements for overreaching; (b) Equity’s Darling is only relevant in unregistered land and this is registered land; and (c) even if this were unregistered land, the purchaser appears to have notice (at least imputed) of the friend’s beneficial interest meaning that the purchaser would not satisfy all the requirements of Equity’s Darling.
A trainee solicitor has been asked to draft the contract for sale of a residential freehold property. The Charges Register refers to two entries which relate to the seller’s mortgage.
Should the trainee solicitor include mention of the mortgage in the Specified Incumbrances section on the front page of the contract?
A-No because the entries in relation to the mortgage are covered by the Standard Conditions of Sale.
B-No because although the mortgage is an incumbrance, the property will not be sold subject to the mortgage.
C-No because the mortgage is not an incumbrance.
D-Yes because the mortgage is an incumbrances and must be mentioned.
E-Yes because the entries in relation to the mortgage are not covered by the Standard Conditions of Sale.
Option B is correct. The purpose of the Specified Incumbrances section on the front page of the contract is to list all existing incumbrances (burdens) which will continue to bind the land after completion. A mortgage is an incumbrance but the property is not being sold subject to it as it will be discharged on completion.
Option A is wrong. The Standard Conditions provide that the property is sold free from incumbrances unless they are specified in the contract and/or of a type listed in SC 3.1.2. SC 3.1.2 (e) provides for entries in any public register except those maintained by the Land Registry. Therefore, entries in the Charges Register would need to be mentioned but for the fact that the property is not being sold subject to the mortgage.
Option C is wrong. The mortgage is an incumbrance, but the property is not being sold subject to it as it will be discharged on completion.
Option D is wrong. The purpose of the Specified Incumbrances section on the front page of the contract is to list all existing incumbrances (burdens) which will continue to bind the land after completion. The mortgage is an incumbrance, but the property is not being sold subject to it as it will be discharged on completion. Therefore, these entries do not need to be mentioned as Specified Incumbrances.
Option E is wrong. The Standard Conditions provide that the property is sold free from incumbrances unless they are specified in the contract and/or of a type listed in SC 3.1.2. SC 3.1.2 (e) provides for entries in any public register except those maintained by the Land Registry. The mortgage is referred to in the Charges Register (so is not covered by the SC), but will not bind the land after completion so does not need to be mentioned as a Specified Incumbrance.
The freehold owner of a commercial property (“the Property”) grants exclusive possession of it by deed to an occupier for a period of four years. Both parties sign the deed. The occupier’s signature on the deed was witnessed but the freehold owner’s signature was not.
Which of the following best describes the nature of the occupier’s interest?
A-The occupier has a legal lease because a valid deed has been executed.
B-The occupier has a legal lease because the parties clearly intended to create a legal lease and equity will see as done that which ought to be done.
C-The occupier has an equitable lease because the deed was signed by both parties.
D-The occupier has an equitable lease because the deed was signed by both parties and at least one signature was witnessed.
E-The occupier is a licensee of the Property, as no lease was created due to the failure to create a valid deed.
Option C is correct. A deed is required to create or transfer a legal estate or interest in land. The requirements for a deed are set out in s1 of the Law of Property (Miscellaneous Provisions) Act 1989. In this case, the deed does not comply with s1 because the freehold owner’s signature has not been witnessed. A legal lease therefore has not been created. However, where the correct formalities for the creation of a legal lease have not been followed, equity may intervene to recognise an equitable lease so long as there is a contract (or invalid deed) that complies with s2 LP(MP)A 1989 (ie the contract must be in signed writing which incorporates all the agreed terms). As the signed document complies with s2, an equitable lease has been created.
Option A is wrong because in order to be a valid deed under s1 LP(MP)A 1989 both signatures must be witnessed.
Option B is wrong because it is immaterial what the parties intended. The document must comply with the formalities in s1 LP(MP)A 1989 to be a valid deed.
Option D is wrong because although the occupier’s interest is an equitable lease, this is because it was signed by both parties. There is no requirement under s2 LP(MP)A 1989 for the signatures to be witnessed.
Option E is wrong because although incorrect execution means the occupier does not have a legal lease, this does not mean that the occupier is only holding under licence, but is instead has an equitable lease in the Property for the reasons set out above.
A solicitor is acting for the buyer of a registered freehold commercial property to be bought with vacant possession on completion. Contracts have been exchanged incorporating the Standard Commercial Property Conditions (Third Edition – 2018 Edition) and completion is due to take place in three weeks’ time. The buyer’s solicitor is sending the seller’s solicitor a completion information form in which the buyer’s solicitor asks the seller’s solicitor for certain information relevant to completion.
Which of the following items does the buyer’s solicitor request in the completion information form?
A-What sum is required to discharge the seller’s mortgage.
B-Details of the seller’s solicitor’s bank account.
C-A more up to date copy of the seller’s title.
D-The draft transfer deed for the buyer’s approval.
E-The date on which the seller will be vacating the property.
Option B is correct because the buyer’s solicitor will be sending the completion money to the seller’s solicitor’s bank by electronic means.
Option A is wrong because the seller’s solicitor will send the seller’s lender the amount required to discharge the seller’s mortgage.
Option C is wrong because the seller’s solicitor will already have sent the buyer’s solicitor a copy of the sellers’ title and cannot be required to send them a more up to date copy.
Option D is wrong because it is the buyer’s solicitor that drafts the transfer.
Option E is wrong because the sale is with vacant possession on completion and the contract provides for the completion date.
A solicitor acts for a buyer of a freehold registered property. The solicitor’s investigation of title has revealed a unilateral notice on the charges register of the official copies. The unilateral notice was created 20 years’ ago and refers to an agreement between the seller and the owner of an adjoining property.
What is the best advice to the buyer as to how to proceed with the purchase?
A-The notice shows the presence of an unknown easement and the buyer should require the seller to confirm how this benefits the property.
B-The notice shows the presence of a valid unknown interest and the buyer should immediately walk away from the transaction.
C-The notice shows the presence of an unknown interest but the age of the entry means the buyer does not need to take any further action.
D-The notice shows the presence of unknown covenants and the buyer should obtain restrictive covenant indemnity insurance.
E-The notice shows the presence of an unknown interest and the buyer should require the seller to cancel the notice before proceeding.
Option E is the best answer. Unilateral notices are used where a registered proprietor has refused to consent to an entry or has not been asked about it. It is correct to say that the entry relates to an unknown interest. The person entering the unilateral notice is not required to explain the nature of the interest. Unilateral notices may be in respect of a variety of interests including contracts for sale, covenants or leases. The entry does not guarantee the validity of the interest but before proceeding to exchange, the buyer should require the seller to secure cancellation of the notice by Land Registry.
Options A is wrong. Notices in the charges register are in respect of a burden of an interest rather than the benefit. There is no indication that the interest is an easement.
Option B is not the best answer. Although the notice indicates an unknown interest its presence does not guarantee the validity of the interest. Walking away from the transaction may be disproportionate if the entry can be removed.
Option C is not the best answer. The notice indicates an unknown interest but the age of the interest is irrelevant in determining its validity and importance. The interest should not be ignored.
Option D is wrong. There is nothing to suggest that the interest protected by the notice is a covenant.
A solicitor is acting for the buyer of a registered freehold commercial property. Contracts have been exchanged and incorporate the Standard Commercial Property Conditions (Third Edition – 2018 Revision) and completion is due to take place in two weeks’ time. The buyer’s solicitor wishes to ensure that completion takes place smoothly and successfully.
Which one of the following correctly identifies what the buyer’s solicitor will do on completion?
A-Date the transfer deed.
B-Send the certificate of title to the lender’s solicitor.
C-Release the deposit held by the seller’s solicitor as stakeholder.
D-Send the balance of the purchase price to the seller’s solicitor from an account held in the name of the buyer at a clearing bank.
E-Make an OS1 search in the name of the lender.
Option C is correct. At completion, the buyer’s solicitor will release the deposit paid on exchange to the seller’s solicitor.
Option A is wrong because the transfer deed will be dated by the seller’s solicitor.
Option B is wrong because the certificate of title will have been sent to the lender’s solicitor before completion.
Option D is wrong because Standard Commercial Property Condition 9.7 provides that the balance of the purchase price will be sent from an account held in the name of the buyer’s solicitor (not the buyer) at a clearing bank.
Option E is wrong because the OS1 search will have been made before completion. This search checks whether any new entries have been made since the date on which official copies were produced.
The freeholder of a house, set in extensive grounds, granted a two year lease of a cottage at the bottom of the garden to a tenant. The cottage has a separate access to a lane connecting to the main road to the village. Shortly after the lease was granted the freeholder gave the tenant oral permission to share the use of the driveway to the house for a more convenient route to the local village. The lease expired and the owner sold the cottage to the tenant, now the freehold owner of the cottage (‘the owner of the cottage’). The transfer deed made no reference to the use of the driveway, but the use of the driveway has continued. The house has recently been sold and the new owner of the house has told the owner of the cottage that they have no right to use the driveway and asked them to stop.
Does the owner of the cottage have a right to use the driveway?
A-No, because there is nothing in writing to confirm the right to use the driveway.
B-No, because the right to use the driveway is not capable of existing as an easement as it does not accommodate the dominant tenement.
C-Yes, because the owner of the cottage has acquired an implied easement of necessity to use the driveway.
D-Yes, because the owner of the cottage acquired an implied easement under s.62 Law of Property Act 1925 on the sale of the cottage.
E-Yes, because the owner of the cottage acquired an implied easement under the rule in Wheeldon v Burrows on the grant of the lease of the cottage.
Option D is correct. The easement in relation to the driveway was created by implication by s. 62 LPA 1925. There was an existing privilege (the freehold owner’s oral permission to use the driveway as a convenient route to the village), there was diversity of occupation (the freehold owner owning the servient land, the house, and the tenant occupying the dominant land, the cottage) and there was a conveyance (the transfer of the freehold of the cottage to the tenant). The effect of the conveyance is to create a legal easement in relation to the use of the driveway.
Option A is wrong. Despite having nothing in writing the owner of the cottage will have a right, an implied easement under s.62 LPA 1925 (as per the answer to Option D above).
Option B is wrong as the easement does accommodate the dominant tenement (the cottage), there is sufficient proximity between the dominant and servient (the house) tenement and arguable that the right benefits the land itself and not just the owner in their personal capacity.
Option C is wrong. The right to use the driveway is for a more convenient route to the village; it is not a case that without the right the land has no means of access to it.
Option E is wrong. For Wheeldon v Burrows to apply the right must be continuous, apparent, necessary for reasonable enjoyment of the cottage and used as a quasi-easement at the time of the sale of part. This would only apply at the date of granting the lease to the cottage. At the time of the sale of the freehold of the cottage there was already diversity of occupation. It is also hard to argue the right is necessary for the reasonable enjoyment of the land; the cottage has a separate access to the lane connecting to the main road to the village.
