Property Law in England and Wales

Question 1

how is a property right distinguished form a personal right

Answer 1

it is alienable (it can be given away or sold) and it is enforceable against people who are not involved in creating it

Question 2

what is the case for distinguishing property and personal rights

Answer 2

National Provincial Bank v Ainsworth [1965] AC 1175

Question 3

what are the different types of personal property

Answer 3

tangible
intangible
digital assets

Question 4

what is a case for personal property

Answer 4

Colonial Bank v Whinney (1885) 30 CH D 261

Question 5

what is tangible property

Answer 5

choses in possession also known as chattels- these are moveable items that you can touch

Question 6

what is intangible property

Answer 6

they are choses in action

Question 7

what is the case for intangible property

Answer 7

Torkington v Magee [1902] 2 KB 427

Question 8

what are new forms of personal property

Answer 8

• the EU carbon emission allowances: carbon credits are held to be ‘if not choses in action then certainly a form of other intangible property’
• bitcoins
• crypto assets

Question 9

what is the case for EU carbon emissions

Answer 9

Armstrong v Winnington [2012] EWCH 10

Question 10

what is land defined under

Answer 10

s. 205(1)(ix) Law of Property Act 1925

Question 11

what is land defined as

Answer 11

“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings and an easement, right, privilege or benefit in, over, or derived from land.

Question 12

how is land and chattels distinguished

Answer 12

use the test of ‘degree of annexation’ to the land

Question 13

using the degree of annexation test what case was ruled real property (land)

Answer 13

Elitestone v Morris [1997] 1 WLR 687

Question 14

using the degree of annexation test what cases were ruled to be chattels

Answer 14

Chelsea Yacht and Boat Co v Pope [2000] 1 W;R 1941
Mew v Tristmere Ltd [2011] EWCA Civ 912

Question 15

what is tenure

Answer 15

it involves the notion of one person holding rights in land from someone with a greater set of rights

Question 16

where can the rules on estates be found

Answer 16

s. 1 Law of Property Act 1925

Question 17

what is a freehold estate

Answer 17

it lasts indefintely

Question 18

what is a leasehold estate

Answer 18

created by the freeholder of land which carves out a lesser right of the freeholders land

Question 19

what is commonhold

Answer 19

a subspecies of freehold under s.1 Commonhold and Leasehold Reform Act 2002, but it is rarely used

Question 20

how do estate holders create third party rights or interests in their land

Answer 20

a freehold or leasehold estate in land is able to grant lesser rights in their land, but this is always subject to law and the estate owner doesn’t have a free hand

Question 21

what is the case for creating third party rights or interests in land

Answer 21

Hill v Tupper (1863) 2

Question 22

what is essential for a lease

Answer 22

• area or premise is clearly defined
• the tenant has exclusive possession
• it is granted for a fixed term (not uncertain)
• granted with proper formalities: by a deed unless is a short lease exemption for leases of 3 years or less
• tenant is required to pay rent but is not essential

Question 23

what is the case for exclusive possession

Answer 23

Street v Mountford [1985] AC 908

Question 24

what is the case for granted fixed term

Answer 24

Lace v Chantler [1944] K.B. 368

Question 25

what is the act which covers leases for three years or less

Answer 25

s. 52(1) and s. 54(2) Law of Property Act 1925

Question 26

what are easements and mortgages examples of

Answer 26

'rights either to do something on someone else's land or to control the way that the land is used by its owner. They are sometimes described as third party rights'

Question 27

what is an easement

Answer 27

a right over one piece of land for the benefit of another piece of land

Question 28

what case is used for easements

Answer 28

Re Ellenborough Park [1956] Ch 131

Question 29

what is the criteria easements must follow

Answer 29

1. there must be a dominant tenement and a servient tenement 2. it must accommodate the dominant tenement 3. dominant and servient owners must be different people 4. the right must be capable of forming the subject matter of the grant

Question 30

what is a mortgage

Answer 30

it is an agreement to lend money against the security of the borrower's property and it is both: - a contractual agreement between the borrower and lender - a proprietary interest that has the capacity to be legal

Question 31

what act cover the mortgage proprietary interest

Answer 31

s. 1(2)(c) Law of Property Act 1925

Question 32

what is said in s. 87 of the LPA

Answer 32

'the mortgagee shall have the same protection, powers and remedies' as the mortgage

Question 33

what is a trust

Answer 33

assets are held by a trustee for the benefit of another person but they can't enjoy the asset but is subject to obligations in equity

Question 34

what is a covenant

Answer 34

a promise made in a written deed where the covenanter bears the burden and the covenantee gets the benefit

Question 35

what is a freehold covenant

Answer 35

it is 'private planning law' but is used in conjunction with easements for developments with interdependent properties but also for neighbouring private landowners

Question 36

what is a leasehold covenant

Answer 36

they are set out in the lease and are used by the freeholder to set rules for the leaseholder.

Question 37

what are positive covenants

Answer 37

a promise to do something which is a personal right that is only enforceable between the parties to the deed

Question 38

what is a restrictive covenant

Answer 38

a promise not to do something and it is capable of being proprietary right that runs with the land

Question 39

what is the case for restrictive covenant

Answer 39

Tulk v Moxhay