Revision Guide Flashcards
(133 cards)
1
Q
What are corporeal hereditaments?
A
Tangible things, including those on the surface of the land (such as buildings and plants), below the land (such as mines), and in the air above the land (to the extent the airspace can reasonably be used).
2
Q
What rights does a landowner have re wild animals?
A
A landowner doesn’t own the wild animals on their land, but they have the right to hunt them.
3
Q
What are incorporeal hereditaments?
A
Intangible things such as:
- rights,
- easements, and
- rents.
4
Q
What is a fixture?
A
A fixture is an object affixed or annexed to a land or a building in such a way that it becomes part of the land or building
5
Q
What is a fitting?
A
A fitting is an object on land which doesn’t become part of the land but remains a separate chattel
6
Q
What passes automatically on the sale of land?
A
Ownership of fixtures
7
Q
When will ownership of fittings pass on the sale of land?
A
Only if the fittings are listed in the Fittings and Contents Form in a contract for the sale of land.
8
Q
What two tests are used to determine whether something is a fixture or a fitting?
A
- Degree of annexation test
- Purpose of annexation test
9
Q
What is the degree of annexation test?
A
The greater the degree of attachment to the land, the more likely the item is to be a fixture.
If the thing is so firmly affixed with nails, screws, or the like that removing it will damage the remaining structure, it’s likely to be a fixture
10
Q
What is the purpose of annexation test?
A
Focuses on whether the owner intended to make the item a permanent part of the land, such as a statue which is the focal point of the architectural design of the garden.
11
Q
What happens if there is a conflict between the degree of annexation and the purpose of annexation test?
A
If the results of the tests conflict, the purpose test prevails.
12
Q
What legal estates are there in England and Wales?
A
Only 2:
i. freehold estate (fee simple)
ii. leasehold estate (term of years)
13
Q
What legal interests can exist?
A
There are 5 categories of legal interests:
i. mortgage,
ii. easement,
iii. rentcharge,
iv. profits a prendre,
v. right of entry
14
Q
How must legal interests be created?
A
Generally legal interests must be created by deed
15
Q
What is a mortgage?
A
An interest that secures a loan by giving the mortgagee (the lender) certain rights, including the right to sell the mortgaged property if the mortgagor (the landowner/borrower) defaults on the loan.
16
Q
What is an easement?
A
A right to use one piece of land (the servient tenement) to benefit another piece of land (the dominant tenement)
17
Q
What is a rentcharge?
A
An interest in land (relatively uncommon in practice) requiring the landowner to make a periodic payment in respect of land to the rentcharge owner (typically a former owner of the land).
18
Q
What are profits a prendre?
A
An interest in land enabling someone to take something from the land of another (e.g., timber or fish)
19
Q
What are the types of profits a prendre?
A
- Profit a prendre appurtenant - a right attached to a second parcel of land in the same way as an easement
- Profit a prendre in gross - a right owned personally by the profit holder which is not attached to ownership of a second parcel.
20
Q
What is a right of entry?
A
A right, reserved in a leasehold or rentcharge contract, enabling the holder to enter the premises under certain circumstances
21
Q
What is it called when a number of legal and equitable interests exist in land at the same time?
A
Called concurrent interests
22
Q
What might happen if an attempt to create a legal interest fails because the deed formalities aren’t met?
A
An equitable interest may arise because equity is more interested in fairness than formality.
23
Q
Who are covenants made in a contract relating to land generally binding on? When may it bind others?
A
Generally binding in contract law only on the parties to the contract - the privity of contract.
However, a restrictive (or ‘negative’) covenant may be enforced in equity against a subsequent buyer if they have notice of the covenant?
24
Q
What happens once a person enters into a contract to buy land?
A
They are deemed to have an equitable interest in that land from the date of the contract.
This gives them certain rights + responsibilities.
> For example, the risk of loss from damage or destruction of the property passes to them + they may register the interest to prevent third parties from gaining a superior interest in the land
25
What kind of interest does a person who has an option to purchase land have?
A person who has an option to purchase land is deemed to have an equitable interest which can be protected by registration.
26
When is a deed required?
A deed is required to create and transfer most legal interests + estates in land
27
What is needed for a deed to be valid?
A deed must:
i. be in writing,
ii. state on its face that it is a deed,
iii. be signed by the grantor in the presence of a witness who attests their signature, and
iv. be delivered
28
When can a contract for land be used to create an equitable interest?
i. failed legal interests,
ii. estate contracts,
iii. equitable mortgages, and
iv. equitable leases
29
What equitable interests require only a writing signed by the grantor?
i. covenants, and
ii. equitable easements.
30
What formalities are needed for a contract for land?
A contract for land must:
i. be in writing,
ii. include all the terms to which the parties have agreed, and
iii. be signed either by all the contracting parties or by someone who has their written authority
31
When can proprietary estoppel be used?
Proprietary estoppel can supply a remedy when it would be unconscionable to permit a party to gain or lose proprietary rights because of a lack of formalities.
32
What does proprietary estoppel require?
i. an assurance,
ii. the claimant's reasonable reliance on the assurance,
iv. that the claimant acted to their detriment (such as spending money on or working the land), and
v. that it would be unconscionable to not grant the remedy
33
When must a seller 'deduce' title to the buyer?
If the land is unregistered
34
What does it mean to 'deduce' title?
This is when the seller proves that they own the estate that they are trying to sell.
35
What is needed when deducing title of freehold estates?
Typically, this means showing:
i. good root title, and
ii. unbroken chain of ownership spanning at least 15 years
36
What will a buyer of unregistered land be bound by?
Legal interests even if they aren't aware of the interests, and
Equitable interests if the buyer is aware of them/
37
How can a person identify any legal interests of 3rd parties of unregistered land?
Generally, by examining the property's deeds or physically inspecting the property.
38
What is needed for an equitable right or interest to be enforceable against a subsequent buyer of unregistered land?
The equitable right or interest must usually be registered on the Land Charges Register.
- This constitutes actual notice to all persons, making the right or interest binding on all subsequent owners.
39
What are the different classes on the land charges register?
1. C(i) - puisne mortgage
2. C(iii) - general charge registration, e.g., equitable mortgage,
3. C(iv) - estate contract
4. D(ii) - restrictive covenant
5. D(iii) - equitable easement
6. F - used by a non-owning spouse/civil partner to register their statutory right of occupation.
40
What is a puisne mortgage?
A mortgage not protected by deposit of the deed with the lender.
With unregistered land, a lender with a first mortgage will usually take possession of the property's deed to secure the loan.
- If a second lender takes a mortgage, they can't take the deed + so they must register their mortgage as a second legal charge.
41
Who are land charges in the unregistered system registered against?
The full name of the property owner
42
What will someone who receives unregistered property as a gift be bound by?
A person who receives unregistered property as a gift takes it subject to the equitable interest regardless of whether they have notice of interest
43
How can title to unregistered land be lost?
Through adverse possession
44
What can a successful adverse possession claim of unregistered title result in?
An award of possessory title
45
What must the claimant show in a claim of adverse possession of unregistered land?
1. They have had actual, physical, and exclusive possession of the land,
2. For at least 12 years,
3. Without permission of the landowner.
46
What events involving unregistered land will trigger an application for first registration?
1. Conveyance on sale of freehold land,
2. A deed of gift,
3. An assent,
4. A grant of a lease for a term exceeding 7 years,
5. A grant of a legal mortgage,
6. An assignment on sale of a lease having an unexpired term exceeding 7 years
47
When must the application for first registration be made following a triggering event?
Application for first registration must be made within 2 months from the date of the triggering event.
48
What is the effect of failing to register a conveyance?
Means that the transfer of the legal estate to the buyer becomes void + the legal estate reverts to the seller
49
What is the effect of failing to register a lease or a mortgage?
The transferor has full legal title but holds as a bare trustee who must follow the lawful instructions of the lessee or mortgagee as it relates to those interests.
50
What will HMLR issue following first registration?
Each registered parcel of land is given a unique title number.
HMLR will issue a Title Information Document which includes a Proprietorship Register specifying the class of title held.
50
Who bears the costs of remedying any failure to register property following a trigger for first registration?
The party in default
51
What are the most common classes of title?
1. Absolute freehold title
2. Possessory title
3. Good leasehold title
4. Absolute leasehold title
52
What is absolute freehold title?
The 'best' class of title - means that the registered proprietor takes the legal estate together will all interests subsisting for the benefit of that estate
53
What is possessory title?
A class of title based on factual possession of the land rather than documentary evidence (used when title deeds have been lost or property has been adversely possessed).
54
What is good leasehold title?
A class of title used when the freehold title hasn't been produced to HMLR on application to register the lease
55
What is absolute leasehold title?
A class of title awarded when HMLR has inspected all superior leasehold titles + the freehold title.
56
What estates can be substantively registered at HMLR?
1. Estates in land (freehold + leasehold)
2. Rentcharges
3. Franchised
4. Profits a prendre in gross
57
Who can register a caution against first registration with HMLR?
A party with an interest in unregistered land
58
What happens if a caution against first registration is lodged with HMLR but the cautioner doesn't have the interest claimed?
The owner of the estate against which the caution has been lodged can apply to the Registrar for the caution to be cancelled.
59
What will HMLR if a caution against first registration is registered?
HMLR will notify the cautioner when an application is made for registration + they will be given a specified period in which the object to registration
60
Under the registered system, what dispositions don't operate until they are registered?
1. Transfer of a freehold estate - title doesn't pass until the transfer is registered,
2. The grant of a legal lease with more than 7 years to run,
3. The express grant or reservation of legal easements and legal profits,
4. A first legal mortgage
61
How is the Title Information Document for a parcel of land divided?
Into 3 registers:
i. the Property Register,
ii. the Proprietorship Register,
iii. the Charges Register
62
What does the Property Register of the Title Information Document include?
I. Identifies the property by its postal address,
II. Specifies the legal estate held, and
III. Indicates any rights in other property (such as an easement) that benefit the property.
63
What does the Proprietorship Register of the Title Information Document do?
Specifies any restrictions on title + the class of title held
64
What does the Charges Register of the Title Information Document do?
Contains details of encumbrances on the land, such as legal easements + legal mortgages.
65
What third-party rights must be registered on a title? Why?
There are 2 main examples:
i. legal mortgage of registered land, and
ii. legal easement.
These interests take effect at law only if they are registered, but they could still take effect in equity even if they fail at law.
66
What is a notice on the register of title?
A notice relates to something that burdens the land (e..g, an estate contract or a covenant).
Entry of a notice means the interest will be binding, and failure to enter a notice means the interest will not bind a purchaser for valuable consideration.
67
What is a restriction on the register of title?
A restriction is used to prevent any dealing with the land otherwise than in accordance with the terms of that restriction.
E.g., a Form A restriction in the case of Tenants in Common.
68
What does it mean to be an overriding interest?
These interests continue to exist after unregistered land is registered, even if the interest doesn't appear on the affected register of title.
69
What interests are overriding?
1. A legal lease granted for 7 years or less,
2. Implied legal easements, or profits a prendre, subject to conditions,
3. Interest in land belonging to a person in actual occupation
70
When will implied legal easements or profits a prendre be overriding?
If:
i. the buyer knew of the easement/profit or it would be obvious from reasonable inspection, or
ii. the easement or profit is exercised within 1 year of the disposition.
71
What is required for an interest in land belonging to a person in actual occupation to be overriding?
The person must have a property right in the land, not just a personal right.
The interest will not be binding if:
i. the occupier failed to disclose their occupation upon reasonable enquiry, OR
ii. the occupation wasn't obvious on a reasonably careful inspection of the land at the time of the disposition and the buyer didn't have actual knowledge of the interest
72
Why are the interests of a non-owning spouse/civil partner not overriding interests?
The right of occupation (the right to live in the property) enjoyed by a non-owning spouse or civil partner under the Family Law Act 1996 cannot be overriding because it is not an interest in land.
73
How can a non-owning spouse/civil partner protect their rights in property?
With a notice on the registered proprietor's register of title.
74
How does adverse possession work in the registered system?
The person in adverse possession doesn't acquire any rights in the land - they merely acquire the right to apply for registration of title.
The squatter can apply for registration after 10 years of possession.
- Possession must still be physical, exclusive + without the owner's permission.
Upon the squatter's application, the registered owner will be notified by HMLR and given a chance to object.
Generally, if the registered owner objects, the application is rejected.
75
When will a registered owner's objection to application made under adverse possession not result in the application being rejected? Result?
If it would be unconscionable or if there was a mistake in boundaries between 2 pieces of land.
If the application is successful, the squatter will be registered as the proprietor.
76
How can co-owners hold the legal estate in land?
As joint tenants.
77
How do joint tenants own land?
Joint tenants each own an undivided, equal interest in the whole of the property.
78
What is the right of survivorship? When does it apply?
Joint tenancy includes the right of survivorship.
On death, the deceased's interest is automatically vested in any joint tenant still living.
79
What is the max. amount of legal owners for land?
No more than 4
80
How old do you need to be to be a legal owner of land?
At least 18 years old.
81
What happens when land is owned by more than 1 person?
A trust of land automatically arises and the co-owners have behind-the-scenes, beneficial equitable interests in the property/
82
How can the equitable interests of a property be owned?
Either in joint tenancy or as tenants in common
83
What does it mean to own property as tenants in common?
Whilst tenants in common own undivided interests, they can own unequal shares, especially if they contributed unequal amounts to the purchase.
There is no right of survivorship.
84
What is a declaration of trust?
It sets out the agreement between co-owners as to how their beneficial interest is to be held.
85
What is the effect of a declaration of trust?
A declaration of trust is conclusive as to the agreement between co-owners.
86
How can a joint tenancy be converted into a tenancy in common?
Through severance.
87
How can severance occur?
1. By 1 joint tenant properly serving the other joint tenant(s) with written notice clearly indicating the desire to sever,
2. By a party treating their share as separate (e.g., by contracting to sell it), or by dealing with the equitable interest,
3. By mutual agreement of the co-owners or a course of dealings indicating a shared intent to sever,
4. By bankruptcy of one of the joint tenants or by forfeiture.
88
What will happen if the intention of co-owners as to how they hold their beneficial interest is unclear?
E.g., if there is no declaration of trust.
A court will presume equity follows the law + the beneficial interests are the same as the legal interests in the property.
Since the legal title must be held as joint tenants, equity will presume a joint tenancy too.
89
What must a solicitor acting for a buyer always be aware of?
Even if the legal estate is held by 1 party, there could be behind the scenes co-owners who may have a claim on the property.
90
How may a buyer take free of a beneficiary's interest under a trust when purchasing property?
Through a legal process called overreaching - happens automatically if the purchase money is paid to 2 or more trustees.
91
What does overreaching do?
Transfers the beneficiaries' interests from the land to the funds used to buy the land.
92
How can overreaching take place if there is only 1 legal owner/trustee?
The buyer will need to ensure that a second trustee is appointed.
Alternatively, the buyer may obtain a written release from the beneficiary of their rights, which is generally done by having the non-owning party sign the contract prior to exchange.
93
What happens if co-owners can't agree how or when to dispose of property?
Sections 14 and 15 of the Trusts of Land & Appointment of Trustees Act may assist them by allowing the courts to intervene.
94
What does section 14 of the Trusts of Land & Appointment of Trustees Act do?
Enables 1 co-owner to apply to the court for an order relating to a trustee's duties, including:
i. an order to sell,
ii. relieving the trustee of the need to obtain consent, or
iii. declaring the nature of a person's interest
95
What does section 15 of the Trusts of Land & Appointment of Trustees Act do?
Sets out the factors a court must consider in determining an application for an order under section 14, including:
i. the intentions of those who created the trust.
ii. the purposes for which the property subject to trust is held, and
iii. the welfare of any minor who occupies (or might reasonably be expected to occupy) any land subject to the trust as their home.
96
What will the court consider when considering the division of property after a relationship breaks down?
It will first consider whether there is a declaration of trust.
If so, it will usually be conclusive, but a challenger may be able to prove a different common intention.
The court will consider all the circumstances + may give each party the proportion that the court considers fair.
97
What is an assignment?
When a tenant disposes of their entire remaining interest in the lease.
The original tenant drops out of the title entirely and is replaced by the assignee.
98
What will usually be required of an assignee when a lease is assigned?
Assignee will usually be required to sign a licence to assign along with the landlord, creating privity of contract between them so the landlord can hold the assignee liable for obligations in the lease.
99
What happens if a tenant disposes of less than their entire remaining interest in a lease?
A sublease or underlease is created.
The lease between the landlord + original tenant is known as the 'head-lease'.
A subtenant is not in privity with the landlord + so the landlord can't hold a subtenant liable for breaches under a lease.
100
Why is the lease/licence distinction important?
A lease comes with a raft of statutory protections, none of which benefit a mere licencee, and a licence cannot be assigned or sublet.
A lease is an estate in land.
A licence is a personal right.
101
What are the essential characteristics of a lease?
1. Certainty of term,
2. Exclusive possession,
3. Appropriate formalities.
Note - rent is not essential
102
What is needed for multiple tenants to share exclusive possession?
For each tenant's interest to be considered a lease interest, they all must be:
i. granted at the same time,
ii. in the same title document, and
Each party must be granted:
iii. the same interest, and
iv. the same right of possession.
Known as the 4 unities:
- time,
- title,
- interest, and
- possession.
This makes them joint tenants.
103
What happens if any of the essential characteristics of a lease are missing?
There cannot be a lease, but only a licence.
104
What will be considered if it is unclear whether the parties have created a lease or a licence?
The courts will consider the substance of the agreement, not the form.
105
What are common types of leases?
1. Fixed term tenancy
2. Reversionary lease,
3. Periodic tenancy,
4. Tenancy at will
106
What is a fixed term tenancy? Features?
A tenancy for a fixed term, such as 3 months or 10 years.
Rent in a long lease cannot be increased unless the lease so provides, usually with a rent review clause.
A long lease may include a break clause allowing a party to terminate early + this will not affect certainty of term.
107
What is a reversionary lease?
A lease which provides that it won't take effect until a later date
108
What is a periodic tenancy?
A tenancy defined by a period of time such as a 'yearly tenancy'.
These tenancies automatically renew for another period until 1 of the parties gives notice that they are bringing the lease to an end.
If the lease doesn't provide a notice period, it is usually defined by whatever the period of the lease is (the notice period is as long as the period of the tenancy).
109
When might the court imply a periodic tenancy?
If the parties haven't entered into a written agreement, a court may imply a periodic tenancy if the tenant has gone into possession + started to pay rent.
110
What is a tenancy at will?
A personal arrangement between the landlord + another party which is not an estate in land.
<> e.g., when a landowner allows a buyer to take possession of the land before entering into any written agreement to sell.
111
How must a legal lease generally be created?
Generally, a legal lease must be created by deed.
112
When does a legal lease not need to be made by deed?
A lease for 3 years or fewer may be created orally without any formalities if:
i. the tenant takes possession of the leased premises, and
ii. it is at the best rent which can be reasonably obtained (market price without up-front fees or premiums).
113
How may a lease still be enforceable if not created by deed + is not a short lease?
It might still be enforceable in equity is:
i. the lease is in a writing,
ii. incorporating all terms expressly agreed, and
iii. signed by both parties.
114
How will an equitable lease be treated, and who will it not be enforceable against?
May be treated as a contract for the disposition of land.
However, the tenant won't be able to enforce the lease against someone who buys the landlord's reversion unless the lease is registered with HMLR or the holder is in actual occupation.
115
What express covenants does a lease typically include?
1. Covenant to pay rent,
2. Covenant of quiet enjoyment,
3. Covenant setting out the landlord's and tenant's duties to repair the premises,
4. Covenant specifying the uses to which the tenant may put the premises,
5. Covenant restricting alteration of the premises,
6. Covenant regarding insurance
116
What is the effect of a qualified alterations covenant?
Allows a tenant to make non-structural alterations to the leased premises with the consent of the landlord.
- e.g., "tenant may make non-structural alterations with Landlord's consent."
Withholding of consent must be reasonable.
117
What is the effect of an absolute bar on alterations in a lease?
Prohibits a tenant from making structural alterations to the leased premises.
The tenant can seek the landlord's consent anyway, but here the withholding of consent need not be reasonable.
118
What covenants will be implied into residential leases by statute? Effect?
They cannot be excluded by express terms.
Include that the landlord must keep in repair the structure + exterior of the dwelling + keep in repair and working order certain installations in the dwelling house.
- E.g., the supply of water, gas, and electricity.
119
What rights does a landlord have if a tenant in a wholly commercial premises fails to pay the agreed rent? Procedure?
The landlord has a statutory right to take control of the tenant's goods and sell them.
This right applies even if the lease doesn't expressly include this right.
The landlord must provide 7 days' notice of enforcement before a bailiff or enforcement agent can enter the property.
120
When is forfeiture of a lease an available remedy?
Forfeiture will not be implied into a lease as a remedy for a tenant's default.
- It is available only if it is expressly included in the terms of the lease
121
What is forfeiture?
The right of a landlord to end the lease early + to re-enter the premises.
122
What protections does a tenant have when faced with forfeiture?
There are statutory protections for the tenant, including:
i. the right to settle the arrears, and
ii. the right to apply for relief from forfeiture to avoid losing the premises.
123
What must the landlord do to forfeit a lease?
The landlord must:
i. serve a notice on the tenant specifying the breach,
ii. provide a specified reasonable time to allow the tenant to remedy the breach, and
iii. set out any compensation payable to the landlord because of the breach.
124
What remedies are available if a party to a lease fails to carry out their repairing obligations imposed by the lease?
The other party may be able to claim damages or obtain specific performance.
The lease may include a 'self-help' clause (Jervis v Harris Clause).
125
What is a Jervis v Harris Clause?
A self-help clause in a lease giving the landlord the right to enter the premises + make a repair if the tenant breaches a covenant of repair, the landlord gives the tenant notice of the work to be done, and the tenant fails to comply.
If the landlord resorts to self-help, they may recover the costs of the repair as a debt.
126
When does the tenant have the right to assign the lease or grant subleases?
Unless prohibited by the lease, a tenant has the right to assign the lease or to grant subleases out of their interest in the property.
127
When will tenants be automatically released from their covenants under a lease?
For leases made after 1995, tenants are automatically released from their covenants upon assignment of the lease to a third party.
128
When will tenants be released from their covenants for leases made before 1996?
The original landlord + original tenant automatically remain liable to each other under the lease for the entire lease period, even after an assignment, unless one of them expressly releases the other.
129
What can a landlord require as a condition of consenting to an assignment?
A landlord can require an outgoing tenant to enter into an 'Authorised Guarantee Agreement' and act as guarantor for their immediate successor in title.
Commercial leases may include a provision requiring the tenant to provide such an agreement on assignment, but residential leases may not.
130
What is needed for an assignment of a lease?
An assignment of a lease must be by deed even if the original lease was oral.
131
When will a lease be 'surrendered'?
If the parties agree the tenant will give up possession to the landlord
132
When will a lease be 'merged'?
If the parties agree that the landlord will transfer the reversion to the tenant.
