SQE 1 - Land Law

What is the difference between real and personal interests?

Real (immovable):

• Land or interest in land.

• Corporeal property such as trees or fixtures. 

• Incorporeal property such as rights, easements and rents.

Personal:

• Everything that is not land.

• Moveable items (chattels), tangible objects known as chooses in possession. 

• Intangible rights which do not physically exist and can only be realised by court action (debts, stocks etc). Known as choses in action. 

What is included in land ownership?

• Airspace

• Things in the ground

• Hunting wild animals (you cannot own the wild animal, but you can hunt it). 

• Objects found on the land - if the true owner cannot be found and the item is not classed as ‘treasure’, the finder can generally claim the object.

What are the two legal estates in land?

Freehold and leasehold.

What are the five equitable interests in land?

FEMBE

1. Freehold covenants

2. Estate contracts

3. Matrimonial home rights

4. Beneficial interests under a trust

5. Equitable mortgages

Who does an equitable interest bind?

MERRP

Third parties who are bona fide purchasers for a value of a legal estate with notice of the equitable interest.

What are the five legal interests in land?

1. Mortgages

2. Easements

3. Rights of access

4. Rent charges

5. Profits á prendre (in gross = can exist independently of land and can be bought/sold; appurtenant = right is attached to a particular piece of land). Relates to an interest entitling someone to take something form the land of another, such as fishing. 

Who does a legal interest bind?

Everyone, including third parties.

How is a legal interest and/or legal estate created?

Via deed. For a deed to be valid it must be:

• in writing

• intended to be a deed

• validly executed with a signature, attestation (witness) and delivery.

How do you sell an unregistered piece of land?

By physically producing the documentary evidence of ownership, dating back to at least 15 years which shows an unbroken chain of ownership from the root of the title to the current seller. 

What is a triggering event for unregistered land and what does it lead to?

CADLAG

Unregistered title become compulsory registerable on the happening of certain events (triggering events).

Main transactions that trigger first registration are:

C - Conveyance of sale of freehold land

A - Assent

D- Deed of gift

L -Creation of first legal mortgage over unregistered land

A - Assignment on sale of a lease having an unexpired term exceeding 7 years.

G - Grant of lease for a term of more than 7 years.

What sections are included in the register of title on HM Land Registry?

1. Header section (inc. title number, edition date, date and time of official copy etc).

2. Property Register (inc. postal address of the property, reference of title plan, legal estate, and rights benefiting the property).

3. Proprietorship Register (inc. class of title held and name of current holders. Also includes restrictions).

4. Charges Register (inc. encumbrances on land).

5. Title plan (inc. extent of property, edged in red).

What are the 5 classes of title?

1. Absolute freehold 

2. Qualified title

3. Possessory title (based on possession of the land rather than documentary evidence. Would be used where title deeds have been lost or someone successfully claims adverse possession. Can be upgraded to absolute freehold if possessory title has not been challenged for 12 years since it was granted). 

4. Absolute leasehold title (highest level of a leasehold property ownership, granting the leaseholder undisputed rights over the property for the duration of the lease without any legal challenges)

5. Good leasehold title (UK Land Registry accepts the validity of the lease itself but has not been able to fully verify the landlord's (freeholder's) superior title, often because it's unregistered or evidence is missing)

What are notices and name the two types.

Notice: an entry on the register in respect of the burden of an interest affecting the registered estate or charge. On transfer of the legal title, the new owner takes the land subject to the interest protected by the notice.

1. Agreed notice - party gains consent from the registered proprietor of the land against which the notice is to be registered. Where consent is not obtained, evidence will need to be submitted.

2. Unilateral notice - registered without consent and applicant must indicate the grounds on which they are applying for the notice to be entered onto the register but need not submit documentary evidence.

What are restrictions?

These are used to prevent any dealings with the land otherwise than in accordance with the restriction.

Appears on the proprietorship register.

Most common is a Form A (restriction on dispositions by sole proprietors, which denotes the existence of a beneficial interest).

What are overriding interests and do they bind third parties?

Overriding interests do not appear on the register of title but are still capable of binding a buyer of the land. They only apply to registered land. 

Most commons types are:

1. Leases for 7 years or less - those over 7 years must be registered in their own right, but under 7 years can be overriding interests, legal easements or profits á prendre. 

2. Persons in actual occupation - Someone with a right in the property (possibly contributed to purchase price). If buyer makes enquiry of an occupier and they do not disclose that they are an occupier, they will not have an overriding interest. They could be entitled to remain in the property, even after sale, so essential that buyer physically inspects the property and the solicitor checks the Property Information Form (TA6) which discloses non-owning occupiers.

Name the three ways in which an equitable lease be created?

1. Agreement

2. Failure to create legal lease

3. Following a lease being granted over an equitable estate (rare).

How do you create an equitable mortgage?

1. By deed and then registering.

Name the four types of easements. 

1. Express legal easement (created by deed for duration equivalent to legal estate, and registered)

2. Implied (no formalities but must be impliedly acquired for duration of legal estate and implied into a deed). 

3. Legal easement that has arisen by implication due to long use, despite arrangement not being in writing. 

4. Express equitable easement  (in writing, containing all agreed terms, signed by both parties and capable of specific performance). 

What is the principle of Walsh v Lonsdale?

An agreement for a lease is as good as a lease itself in equity (e.g. an agreement for a lease can be enforced as if the lease had been formally granted).

This principle is based on the equitable maxim that "equity looks on that as done which ought to be done". If a written agreement for a lease exists and is specifically performable, equity will treat it as creating the same rights and obligations as a legal lease, even if the formal deed has not been executed

For a land charge to be binding in unregistered land, what must it be?

Registered against the correct name. Registration constitutes actual notice to all of the interest or right that is registered, making it binding on all subsequent owners of the land.

Name the 6 Land Charges

1. Class C(i) - Puisine mortgage that is not protected by the deposit with the lender of the title deeds. 

2. Class C (iii) - General equitable charge not covered elsewhere. 

3. Class C (iv) - Estate contract.

4. Class D (ii) - Restrictive covenant.

5. Class D (iii) - Equitable Easement

6. Class F - Protects non-owning spouses/civil partners statutory right of occupation in the matrimonial home under the Family Law Act 1996. 

In unregistered land - what is the doctrine of notice?

Third party rights that do not appear on the list of land charges will only bind the purchaser if they are not equity’s darling.

What is equity’s darling?

A bona fide purchaser for the value of a legal estate without notice.

Name the three types of notices of an equitable interest in unregistered land. 

1. Actual notice

2. Constructive notice - purchaser will have constructive notice of all interests reasonably discoverable by inspection of the property, this includes a duty to enquire about potential interests. 

3. Imputed notice - Notice received by the purchasers agent will mean that the purchaser will be held to have imputed knowledge.

How do you protect equitable rights on registered land?

By notice or restriction on the register of an existing title. Registration protects the priority of the interest against that of a subsequent registrable disposition for value.

How do you protect legal leases for both registered and unregistered land?

Registered:

7+ years - lease must be registered.

Less than 7 years (inc. less than 3) - Overriding interest binding the buyer.

Unregistered:

Becomes legal interest that can automatically be enforced against buyer.

How will an equitable lease bind third parties for both registered and unregistered land?

Registered: As a notice on the charges register. However, if the land is acquired via gift, the new owner will be bound regardless of whether it was registered. 

Unregistered: registered as a Class C (iv) land charge.

How do you protect a legal mortgage in both unregistered and registered land?

Registered: Notice on the Charges Register

Unregistered: First legal mortgage must be in writing and will bind the world. The lender will hold the unregistered title deeds as security.

Subsequent charges must be registered as a C(i) land charge.

How do you protect an equitable mortgage in both registered and unregistered land?

Registered - Registered on charges register.

Unregistered - registered as a C(iii) land charge.