Land Law

((New) Land Law - Nature of Land) - Overview

1. Land is a form of __ meaning that it can be _

2. Aka …

3. But English law draws a distinction between..

4. Land is unique to other forms of property in that it cannot…

5. Who is the tehcnical owner of all land in england and wales?

6. A ‘landowner’ actually…

   1. The most powerful of these is to …

7. There are lots of different types of _ that you can hold in a piece of land

1. Property, can be owned

2. Real property

3. Rules applying to land (real VS other types of property (personal property)

4. Be consumers, produced, moved/ physically lost

5. The crown

6. Owns a right in the land

   1. Possess the land indefinitely

7. Rigths - land law deals with these

((New) Land Law - Nature of Land) - Overview

Proprietary Rights v Personal in Land

1. A right in land can either be or

2. Distinction - enforceability

   1. Proprietary rights are… - meaning _ or _ of the land can…

      1. So practically, a court can… or…

   2. Personal rights - can …. For… if the right is _

      1. Cannot recover …. Or…

3. Enforceability against third parties?

   1. Proprietary rights - are…. I.e. a … of the land burdened by the right

   2. Personal rights - will…

      1. So there can… & they will…

4. Is a licence a proprietary right in land? - it is just…

1. Proprietary or personal in nature

2. Enforceability:

   1. Proprietary rights are enforceable by an action ‘in rem’ - possession/ use of the land can be recovered

      1. order specific performance / an injunction

   2. Only be enforced by a personal action for damages if the right is breached

      1. Use of the right or occupation

3. Against 3rd parties

   1. Capable of being enforced against a 3rd party i.e. a new owner of the land burdened by the right

   2. Only bind the original parties to the right, can be no recourse against a new owner of the land - wont be burdened by the right

4. No - it is just a personal permission

((New) Land Law - Nature of Land) - Overview

Proprietary Rights

1. There is a …. Of _ proprietary rights in the land - so only … will have properietary status

   1. These rights are known as __ and …

2. Most PRs are also subject to … for their _ or _

3. A PR in land often has to be _ to be _ against a …

   1. The method of _ is determined by whether… or…

4. Why are there strict rules to be met for a right to be proprietary?

5. So proprietary rights are of being enforceable against… ,but are not _ so!

   1. Whether it is depends upon 2 things

Proprietary rights

1. Closed list of recognised PRs in land - only certain rights have proprietary status

   1. Estates and interests in land

2. Strict formalities for their acquisition/ creation (for validity)

3. Protected to be enforceable against a 3rd party

   1. Of protection - whether the burdened land is registered or unregistered land

4. Because they are a burden on the land - can affect the its use & value

5. Capable of being enforceable against a 3rd party but not automatically so!

   1. Whether the burdened land is registered/ unregistered and applic of the correct enforcement rule

((New) Land Law - Nature of Land) - Overview

Estates in Law

1. An estate is a _ _ to ….

2. A freehold estate is a _ _ to_ the land _ i.e. in…/ …

   1. The owner of a FH estate in a piece of land = what we call the _

   2. Aka a the…

3. A leasehold estate/ a Lease is a _ _ to _ the land for…

   1. This could be i.e… or…

4. a FH estate owner will own the land subject to …

   1. So id a DH owner tried to stop a … from occupying the land , then the … could …

5. No. Of FH and LH estates a piece of land can be subject to?

1. A proprietary right to possess the land/ of possession

2. Proprietary right to possess the land indefinitely i.e. In perpetuity/ forever

   1. Landowner

   2. Fee simple absolute in possession

3. Proprietary right to possess the land for a certain duration

   1. I.e. 1 month, 2000 years

4. Any leases granted over the land

   1. From occupying the land - tenant could recover possession for the duration of their lease

5. Only one FH estate, but can be subject to multiple LH estates (can be of diff durations)

((New) Land Law - Nature of Land) - Overview

Interests in Land

1. These are still _ _ but are more _ in _

2. These do not give the right to … in the way an _ does

3. Instead it gives the interest holder the right to …. Or…

4. Nature of these interest? Some… other…

   1. Why is this distinction important?

5. Legal interests x3

6. Equitable interests x3

1. Proprietary rights, but more limited in use

2. Right to possess the land in way an estate does

3. Do something on the land OR restrict what can be done on the land

4. Can be legal , others can only take effect in equity

   1. Bc of remedies available & enforcement rules

5. Mortgage, easement, right of entry

6. Restrictive covenant, interest in a trust of land, an estate contract

((New) Land Law - Nature of Land) - Overview

Legal Interests in Land

1. A Mortgage - is an …. Granted by… as…

   1. Has very powerful… including … and … if the…

2. An easement - is the right to …

   1. I.e…. (X3 examples)

3. A right of entry = a _ right to…

   1. Example of this right

1. Interest over land granted by a borrower as security for a loan

   1. V powerful rights over the land incl right to possess, and sell the land if the borrower defaults in the mortgage repayments

2. To use or enjoy land belonging to someone else

   1. Right of way/ drainage/ store items

3. Legal right to enter the land

   1. Forfeiture - landlord’s right to end a lease prematurely

((New) Land Law - Nature of Land) - Overview

Equitable Interests in Land

1. Restrictive covenant = a promise…

   1. I.e. re _ - for example to only … for… or a covenant not to … From the land

2. An interest in a trust of land exists where there is a …

   1. Where land is held on _ - there is a _ in the .. and …(Aka _) _

   2. & the legal ownership is held by … for…

   3. The beenficiary of a trust of land is regarded as having an… subject…

   4. How can a trust over land be created?

      1. For instance where someone … of a house but is not… - equity recognises .. and will… - they will be a _ and hold an…

3. An estate contract is a right to an … - whether this be _ or _

   1. The most common type of estate contract is a …

   2. Other types of estate contract x 3

1. Not to do something on the land

   1. Use - only use land for residential purposes, or not to sell alcohol

2. Trust of land

   1. On trust - split between the legal and equitable (aka beneficial) Ownership

   2. The trustees for the benefit of the beneficiaries

   3. Equitable interest in the land, subject to the trust

   4. Expressly or can arise impliedly

      1. Contributes to purchase price of a house, but is not a named legal owner - Eq recognises this contribution and will imply a trust- will be a beenficiary & hold an equitable interest in the land

3. Contractual right to an estate in land - whether FH or LH

   1. A contract to buy land

   2. Contract for lease, an option agreement, a right of pre-emptily

((New) Land Law - Nature of Land) - Overview

Transfer of the FH Estate

1. How many stages in this process? & what are they

2. What stage is not legally necessary to transfer the estate but common practice

3. Before this = a period ‘_- _’ where the parties can … at any time, without…

Stage 1 - Exchange of Contracts (Voluntary)

1. Once this exchange happens, parties cannot…

2. To be valid, the land contract must comply with… : 3 requirements:

   1. The contract….

   2. It must…

   3. It must..

3. For a variation of a land contract to be valid it…

4. It is common practice for incorpoation of all the terms to…

5. Also common practice for both parties to … - and these are then..

6. Equity orders _ _ of a contract for the sale of a…- because each…

7. An equitable interest arises… known as…

1. 3 - exchange of contracts, completion of the deed & registration

2. 1st stage - exchange of contracts

3. Pre-exchange - parties can walk away at any time, without incurring legal liability

1. Walk away without incurring legal liability

2. Comply with s.2 LP(MP) 1989

   1. Must be in writing

   2. Must contain all the expressly agreed terms

   3. Must be signed by both parties

3. Must also comply with these requirements

4. Be included by ref to another document

5. Sign identical copies of the same doc - then physically exchanged

6. Specific performance of a contract for the sale of a FH estate bc each piece of land is regarded as unique

7. Arises from the contract - known as an estate contract

((New) Land Law - Nature of Land) - Overview

Transfer of the FH Estate

Stage 2- Completion

1. This is a stage to affect a legal - so a _ MUST be used to …

2. Completion of the deed is required by…

3. A deed is a document which must comply with… - 3 requirements:

   1. The doc must…

   2. Must…

   3. Must…,- done by…

4. How to execute a deed?

5. NOTE: there is no legal requirement for … but this is …

6. Practically, this stage is when the buyer… and then…

7. For unregistered land …

8. BUT for registered land it is not the point…

Stage 3 - Registration

1. This is the final stage of transfer of a FH estate and is when you… that the buyer is…

1. Compulsory stage to affect a legal transfer - deed must be used to transfer the land

2. S.52 LPA 1925

3. S.1 LP(MP)A 1989

   1. Doc must be intended as a deed

   2. Be validly executed

   3. Be delivered - done by dating the document

4. Sign it in the presence of a witness who must also attest their signature

5. No legal req for the buyer to execute the deed to transfer the land - but is common practice

6. Pays the purchase money and collects keys to the property

7. Legal title passes

8. At which the buyer is regarded as the legal owner of the land

1. Tell the land registry that the buyer is the new owner of the land !

((New) Land Law - Nature of Land) - Overview

Introduction to Land Registration

1. No. Of systems of land ownership? & what?

Unregistered Land

1. This means that the _ information (aka who…) is contained in ….

2. & if the land being transferred is unregistered land, then legal ownership passes…

3. The sale of a piece of unregistered land then triggers… For … - aka ‘_ _ _’

4. But unregistered land will only need to be registered for the… if a … occurs

5. 2 examples of other triggering events

6. Would grant of a 5 year lease be a triggering event to register the unregistered land for the first time?

Registered Land

1. = land which is already …

2. If this land is being transferred, then the … must be _ to keep…

3. At what point is the buyer of a registered FH estate regarded as the legal owner owner of the land?

4. What are known as the ‘official copies’? - the… including x2…

5. The 3 parts of the register

1. 2 - registered and unregistered land

1. Title information, aka who owns the land, is contained in various old paper title deeds

2. At the point of completion

3. A requirement to register the land for the first time - compulsory first registration

4. For the first time, if a triggering event occurs

5. The grant of a first legal mortgage, and a grant of a lease of more than 7 years

6. No

1. Registered at the land Registry

2. Transfer deed must be registered- compulsory to keep the registered title up to date

3. When the transfer deed is registered

4. The title documents, including the register, and a title plan of the land

5. The property register, the proprietorship register, the charges register

((New) Land Law - Nature of Land) - Overview

Introduction to Land Registration

Parts of the Register

1. P1- The Property Register

   1. This contains a …, the… and details of…

   2. I.e. if the land has the _ of an _ - this will appear here

2. P2 - The Proprietorship Register

   1. Contains the _ and _ of the …, the _ of the _ (i.e. if it is _ which is the …) and the details of …. Affecting … to…

3. P3 - The Charges Register

   1. Contains details of … that…

   2. I.e. if the land is _ to a …, … , … or… it would appear here

4. What is the mirror principle? = the principle that the register should…of the .. and .. .that … and … a piece of land

   1. But why hasnt this principle been fully realised ever? Due to …

      1. These are interests which … but will…

      2. I.e. a …. - this does not … and therefore will not… but would still…

1. property register

   1. Description of the land, the type of estate, and details of any interests that benefit the land

   2. I.e. if land has benefit of an easement

2. Proprietorship register

   1. Contains the name and address of landowner, the class of the title (i.e. absolute = best class), & details of ay restrictions affecting the owner’s ability to deal with the land

3. Charges register

   1. Contains details of any interests that burden the land

   2. I.e. if land subject to restrictive covenant, easement, lease, mortgage

4. Mirror principle - the register should reflect ad be an accurate, comprehensive account of the ownership and rights that benefit & burden a piece of land

   1. Existence of overriding interests

      1. Don’t appear on the register but still binding on owner of the legal estate & any buyer of it

      2. I.e. a legal lease of 7 years or less - does not need to be registered and therefore wont appear on the register but still will be binding

((New) Land Law - Nature of Land) - Overview

What is Land?/ Real Property

1. The statutory definition is _ and includes far more than just…

2. To summarise, if you own the FH estate to a piece of land, you own:

   1. The ground .., down…

   2. The _ above …, to …- for the _ _ and _ of the land & the structures upon in

      1. Aka the ‘_ _’

      2. Means someone could be trespassing on your land if they … or…- even if it is not… or…

      3. (Note: an owner has no rights in…)

   3. Things… - aka ‘__’

   4. The benefit of… which have…

      1. I.e. an _ over…

1. Broad, the surface of the earth

2. Own:

   1. Ground beneath the surface of land down roughly 300 m

   2. Airspace above the land ‘to such height as it is reasonably necessary’- for the ordinary use and enjoyment of the land & the structures upon its

      1. Lower airspace

      2. Swing a crane over land or have a sign/ Aerial hanging over it- even if not physically touching or causing damage to the land

      3. In the upper airspace

   3. Things attached to the land - fixtures

   4. Benefit of any proprietary rights the lad has but which have no physical substance

      1. I.e. an easement over adjoining land

((New) Land Law - Nature of Land) - Overview

Fixtures

1. Frequent legal issue of whether an item is a _ (& therefore _) or a _ (which is _ _)

2. How can this issue be resolved? By applying …

3. Where will this be relevant? - on the … and when a lender… it has…

4. What does the Degree OA (first test) test ask?- how..

   1. The more…, & the more…, and the more..

   2. This first test … which can…

5. What does the Purpose OA (2nd test) ask?

   1. Is it to …. Or to ….?

   2. If the latter - then the item…

6. But note: if an item is not attached to the land, but … i.e. a __ - it can …

7. Also if an item is not physically attached to the land, but … it will probably be … - i.e. a _

8. Fixtures become a …. And must be … VS chattels can be …

9. Chattels are _ _, not _ (also aka as _)

10. Which test prevails in determining if an item is a fixture or chattel? The … - this can…

11. Note: just because an item is physically… does not mean it will always… - have to ask…

    1. And in the same way, an item not …. Can still be a … if it …

12. Chattels will only pass on sale of land if…. VS fixtures are … and therefore… to buyer on transfer.

13. What about bike shed? Unless this cannot be…, then it is likely to be a _

14. Statute resting on own weight? - unless this form part of …., then it is likely to be a __

15. Painting of property designed to be displayed & complement the entrance hall of a house - although this can be …. It is likely to be a _ due to it being part of …

1. A fixture (land) or a chattel (personal property)

2. the degree and purpose of annexation test

3. On the sale of land, and when a lender takes possession of land it has a mortgage over

4. How firmly an item is attached to the land

   1. The more firmly an item is attached to the land, & the more damage will be done by its removal, and the more likely it is a fixture

   2. Raises a presumption which can be rebutted by the Purpose of Annexation test (2nd test)

5. Why a item is attached to the land

   1. Enjoy the item as a chattel or to enhance the land

   2. If latter- more likely to be a fixture (i.e. built in bookcase)

6. Not attached to the land, but forms part of the architectural design i.e. a statute - can still be a fixture - so think is there any indication that it is part of this?

7. But would be destroyed by removal - probs a fixture - shed

8. A part of the land and must be included in the sale VS chattels can be removed by the homeowner on sale

9. Personal property, not land, aka fittings

10. The purpose of annexation test - can override/ rebut the degree of annexation test

11. Physically attached to the land, does not mean it will always be a fixtures - have to ask why! Attached

    1. Not physically attached to the land, can be a part of the land still if it complements the design of the land

12. Expressly included in a sale, fixtures are part of the land and therefore automatically pass.

13. Be moved without destruction, likely to be chattel

14. Of the architectural design of the property, likely to be chattel

15. Be removed, likely to be fixture, due to being part of the overall architectural design of the property

((New) Land Law - Mortgages) - Overview

Legal and Equitable Mortgages

1. What is a mortgage ? = a _ right in … granted by… as…

2. It grants …, such as a right to … and … in…

3. The mortgagor? =A _ - can be…

4. The mortgagee? = a _ - often a …

5. So the mortgagor gets …. And the mortgagee gets…

6. Can a mortgage be a legal interest in the land?

   1. So …. A mortgage must be …. Using a …. That is then …

7. When will a requirement to trigger the land for the first time be triggered in this context?

8. The conseq of registration means a legal mortgage will be …

   1. BUT in practice, the mortgage will be discharged when … x2

   2. It is an interest in the land only intended to…

9. Equitable mortgages priority for different ones = depends on the order in which …

   1. If they are protected, then they take interest over…

1. Proprietary right in the land granted by a borrower as security for a loan.

2. It grants powerful rights to the lender, such as a right to possess and sell the land in the event of default

3. The borrower -An indiv or company

4. The lender - often a bank

5. A loan of money, mortgagee gets rights over the property

6. Yes if the correct formalities are complied with

   1. To be legal, a mortgage must be granted by ALL the legal owners of the estate, using a deed, that is then registered at the land registry

7. Where there is the grant of a first legal mortgage over unregistered land

8. Enforceable agaisnt a third party

   1. When it is paid off, or the land is sold

   2. Last for the duration of the borrower’s ownership of the estate

9. They were created ! (Not protected - don’t have to be)

   1. All subsequent mortgages - legal or equitable

((New) Land Law - Mortgages) - Overview

Legal and Equitable Mortgages

1. What is a mortgage ? = a _ right in … granted by… as…

2. It grants …, such as a right to … and … in…

3. The mortgagor? =A _ - can be…

4. The mortgagee? = a _ - often a …

5. So the mortgagor gets …. And the mortgagee gets…

6. Can a mortgage be a legal interest in the land?

   1. So …. A mortgage must be …. Using a …. That is then …

7. When will a requirement to trigger the land for the first time be triggered in this context?

8. The conseq of registration means a legal mortgage will be …

   1. BUT in practice, the mortgage will be discharged when … x2

   2. It is an interest in the land only intended to…

1. Proprietary right in the land granted by a borrower as security for a loan.

2. It grants powerful rights to the lender, such as a right to possess and sell the land in the event of default

3. The borrower -An indiv or company

4. The lender - often a bank

5. A loan of money, mortgagee gets rights over the property

6. Yes if the correct formalities are complied with

   1. To be legal, a mortgage must be granted by ALL the legal owners of the estate, using a deed, that is then registered at the land registry

7. Where there is the grant of a first legal mortgage over unregistered land

8. Enforceable agaisnt a third party

   1. When it is paid off, or the land is sold

   2. Last for the duration of the borrower’s ownership of the estate

((New) Land Law - Mortgages) - Overview

The Equity of Redemption

1. Mortgages is an area of law where there tends to be … between…

   1. Especially in a __ context - where the borrower…

2. SO the courts & parliament have… And are prepared to declare… to be … and…

3. This protection afforded to borrowers is know as? & it is essentially a bundle…

   1. What are these x4?

   2. _ right…_ the …

   3. No … or…

   4. No…

   5. No…

1. Inequality of bargaining power between borrowers and lenders

   1. Residential context - borrower needs to borrow £ to buy a home

2. Intervened in this relationship - prepared to declare terms agreed between the parties void & unenforceable

3. The equity of redemption - bundle of rights the borrower is recognises as having:

   1. Equitable right to redeem supplements legal right to redeem

   2. No Postponement or prevention of redemption

   3. No collateral advantages

   4. No unconscionable terms

((New) Land Law - Mortgages) - Overview -Equity of Redemption

The Equitable Right to Redeem

1. Redeem= _

2. A borrower cannot redeem/ repay…. Until… as specified…

3. Historically the borrow could only… and if they did not do so the the lender… - very harsh So equity intervened

4. SO borrowers now have the right to …. Anytime … the …. Has

   1. Called the …

5. When is the legal right of redemption usually in residential contexts? Within…

1. Repay

2. Their mortgage loan, until the legal date of redemption specified in the mortgage agreement

3. Redeem the mortgage on this one day, if didn’t then lender could keep the property

4. Equitable right to redeem the mortgage anytime after the legal date of redemption has passed

   1. Equitable right to redeem

5. Within the first 6 months of the mortgage term

((New) Land Law - Mortgages) - Overview -Equity of Redemption

No Postponement or Prevention of Redemption

1. So a clause which prohibits or postpones redemption (i.e. by …) may…

   1. Because it prevents… from being able to arise

2. A clause preventing redemption altogether will…

3. A postponed legal redemption date… depending…

   1. Must consider …

   2. For instance, if the … is more equal i.e. where the estate mortgaged is __ and the borrower is _

      1. Then a delayed redemption date…

      2. Particulalry if the borrower….

4. Is borrower likely to succeed in redeeming a commercial mortgage early, 10 years into the term, where mortgage term of 30 years, clause postponing legal date of redemption for 20 years into this. Borrower obtained v favourable interest rate due tot his postponement? & why - the postponement does… the borrower’s … and the borrower received …

   1. So here it does not create an _ _ & will be _

   2. Not all postponements are….!

   3. Especially in _ context - due to …

1. (By having a delayed legal redemption date), may be declared void

   1. prevents the equitable right to redeem from

2. Be void

3. May be declared void depending upon the circumstances

   1. Context in which the term imposed

   2. I.e. if the bargain power is more equal - estate mortgaged is freehold and the borrower is commercial

      1. May be upheld

      2. Received favourable terms in exchange

4. No - the postponement does not excessively fetter the borrower’s right to redeem & borrower received a favourable interest rate in exchange

   1. Undue burden & will be upheld

   2. Automatically invalid!

   3. Commercial context - equality of bargaining power

((New) Land Law - Mortgages) - Overview -Equity of Redemption

Options to Purchase

1. A clause which provides for the transfer of the …to… / or affords … an option to…, which is a…. To request …. May be _

2. Such a clause is ___ with the nature of a mortgage- should be …, rather than an….

3. Exercising such a clause would also prevent….

4. So the basic position is that an option granted to a lender…

5. BUT if an option is granted to a lender in a…., then the option…

   1. Courts will look at the … of such an arrangement

1. Mortgaged property to the lender/ affords the lender an option to purchase the land - a contractual right to request the land be transferred - may be void

2. Inconsistent - security for a loan only, rather than an opp for the lender to take additional benefits

3. The borrower’s right to redeem from arising

4. Will be declared void

5. Truly independent agreement - then the option will be valid

   1. True substance

((New) Land Law - Mortgages) - Overview -Equity of Redemption

No Collateral Advantages

1. A term which confers… _ and _ the _ and _ of the loan may…

2. A lender should not use the mortgage & their position to … i.e. to provide _ treatment to …

3. But: not every …

   1. & must consider the …

4. When will a collateral advantage usually be upheld by the court? - where it is in… and the advatnage…

   1. Typical example of this = a ‘ _ _’- where a supplier i.e. a…. Lends money to …. And in addition to granting this mortgage, the borrower also agrees… for…

1. On the lender an additional benefit above & beyond the security & repayment of the loan may be struck out as void

2. Extract further obligations from the borrower - favourable treatment to the lender’s business

3. Collateral advantage will fail

   1. Context in which the advantage is granted to the lender

4. In a commercial context & the advantage ends within the mortgage term

   1. A solus tie - supplier i.e. brewery, lends money to pub owner, borrower also agrees to buy all their beer from the brewery for the duration of the mortgage term.

((New) Land Law - Mortgages) - Overview -Equity of Redemption

Unconscionable Terms

1. The courts will…

2. These terms are more than _

3. & courts will only strike down a clause which is deemed _ or _ - meaning it has been imposed in a …. Such that the …

4. The key cases in this area concern _ _

5. The factors courts will consider in determining if a term is unconscionable include (x3):

1. Strike these out

2. Unreasonable

3. Oppressive or unconscionable - imposed in a ‘morally reprehensible manner’ such that lender’s conscience should be affected

4. Interest rates (I.e. penalty ones)

5. Factos:

   1. The equality of bargaining power betw parties

   2. The borrower’s need for the loan

   3. The context in which the mortgage was grated incl if legal advice was sought

((New) Land Law - Mortgages) - Overview

Undue Influence

1. If a party successfully shows that they were unduly influenced to enter into a mortgage loan then…

2. UI is an issue where one party grants.. that… , where there is a …. Between it and the …

   1. I.e. where two… over their _ as security for a loan for….

   2. Therefore the loan is only for the … of only…

3. For Undue influence - in addition to a relationship of trust and confidence what else must be shown for claim to succeed? A transaction which requires an… - initiates the Q… - i.e. bc it is not for…

4. Common examples where a relationship of trust and confidence will exist x3

5. In this situation what must the lender granting the loan do? - ensure it… to…

   1. This includes requiring…

   2. Steps which must be followed here = aka the _ _

6. If the lender does do this, what does this ensure? - ensures… will… and the party cannot then…

1. It can be set aside

2. A mortgage that is not for their direct benefit , where there is a relationship of trust and confidence between it and the other grantor of the mortgage

   1. Two homeowners grant mortgage over their property as security for a loan for one of the homeowner’s business

   2. Direct benefit of only one of the homeowners

3. A transaction which requires an explanation - transaction initiates the Q; WHY has X signed this? - i.e. bc it is not for their direct benefit

4. Between partners, friends, a parent and a child

5. Takes steps to bring home the risks of the mortgage To this party

   1. The party to seek independent legal advice

   2. Etridge guidelines

6. Ensures that the lenders interest in the property will rank in priority & party offering their property as security for the other person’s benefit cannot then argue they have been unduly influenced

((New) Land Law - Mortgages) - Overview

Priority of Mortgages over Registered Land

1. A landowner may grant… - not uncommon

2. So issues of priority arise where the loan is … and there is not …

   1. Then need to determine…

3. Legal mortgages over registered lands must…

4. & where there is more than one legal mortgage - priority is governed by…

5. A legal mortgage will rank ahead of …

   1. An equitable mortgage does not need…

   2. But an equitable mortgage can be protected by… On…

   3. If an equitable interest has not been protected this way then a … will rank..

6. Between competing equitable mortgages what determines priority?

7. What if an equitable mortgage is protected by entry of notice on the charges register then it will…. Of a subsequent legal mortgage

1. More than one mortgage over their land

2. Loan is in default and there is not enough money to pay back all the lenders

   1. Which lender (i.e. which mortgage) takes priority

3. Be registered!

4. The order in which the mortgage was registered

5. Ahead of any unprotected equitable mortgage

   1. To be registered as part of its creation

   2. The entry of a notice on the charges register

   3. Subsequently granted legal mortgage will rank ahead of it in priority

6. The order of creation

7. Rank ahead

((New) Land Law - Mortgages) - Overview

Rights of the Lender

1. If a borrower defaults in their mortgage loan repayments, then the lender… incl… For…

2. What is the best remedy open to the lender?

3. What if there is a business run from the property that needs management? Then… To… over… to… before then…

   1. Then lender would benefit from receiving… to … without having to … - which can be _

   2. Who does a receiver owe a duty to act with due diligence to?

   3. But having a receiver means that the lender is not…

4. Why might the lender foreclosing on the property to take full ownership & cover debts not be as preferable an option in some circumstances?

   1. Because foreclosure _ the borrower’s …. And could be a more _ approach than necessary

   2. A court also will not generally allow this if …

   3. Foreclosure is _ used

   4. Advantage of foreclosure for borrower in negative equity? - all subsequent _ and the _ _ are _

      1. Foreclosure operates as full… - so when the lender takes the property they cannot pursue…

5. For commercial properties does the lender have a duty to consider extending the loan term as per the pre-action protocol?

6. What about suing for debt owed by tenants? - this may be a … and less - as if unable to pay mortgage payments, unlikely to be able to … & in the event of insolvency this would rank as an _ _

The Lender’s Right to Posses

1. When does this technically arise? When…Aka as…

2. But the agreement will usually… until the borrower…

3. 2 ways the lender can exercising its right to possess. By:

   1. _-_ - …. And .., or

   2. … for a…

4. Unless the premises are _ and _, the lender should always seek a … - otherwise the lender will… if it _ or uses _ to secure entry

5. S.36 - If the premises are residential/ part residential, then After an application to court by the lender…

   1. The court must be satisfied that the borrower is…., and any… within,,,, (which is the …)

6. Note: the lender’s right to posses is a and does not require a _ _ - the lender may choose to apply for one but…

   1. Why might a lender choose to apply to the court for an order for possession though?

1. Has several different options available to it - incl a debt action for the amount of arrears owed

2. To possess and then sell the mortgaged property

3. Would be appropriate for the lender to appoint a receiver over the mortgaged property to manage it before then selling it

   1. Receive regular payments to cover the debt, without having to take ownership of the property - complex

   2. The borrower (not lender!)

   3. Not liable for the receiver’s negligence

4. Foreclosure?

   1. Extinguishes the borrower’s equity of redemption, and more drastic method

   2. If there is any equity in the property

   3. Rarely used

   4. Advantage? - subsequent mortgages and the contractual debt are extinguished

      1. Full settlement of the mortgage debt - cannot pursue borrower for any shortfall

5. No

6. Long process, less effective than appointing reciever, if borrower unable to pay mortgage, likely unable to repay debt & woudl rank as an unsecured debt.

1. The ink is dry on the mortgage deed - as soon as the mortgage has been granted

2. Postpone the right until the borrower is in default of its repayments

3. By:

   1. Self-help- peaceably entering the premises and changing the locks, or

   2. Applying to court for a possession order

4. Empty and unoccupied, lender should always seek a court order for possession, otherwise lender will commit a criminal offence if it threatens/ uses force to secure entry

5. The court may postpone a possession order

   1. Borrower is able to pay the arrears, any interest accrued, within a reasonable period (remainder of the mortgager term)

6. A right and does not require a court order - lender may choose to apply to one but does not have to

   1. To avoid possible criminal proceedings - alleges of use of force of entry

((New) Land Law - Mortgages) - Overview

The Lender’s Rights to Sell and Duties When Selling

1. What would be practical steps to enable a lender to then exercise its power of sale - … or…

2. Is a court order required for the lender to sell the proeprty & why? - this is usually… and if not … into a ..

3. But, lender cannot exercise the right to sell until… and…

4. When does the statutory power arise? - as… I.e. the … or for interest-only loans

5. If statutory, the power of sale becomes exercisable if:

   1. _ requiring… is_ and the borrower _, or

   2. (More usually) if …. Is in …, or

   3. There is some…

6. Then the lender is under a duty to sell… and seek…

7. The lender must also…

8. But the lender does not have a duty to … or … - even if this would increase the price of property on sale

   1. As the older has an _ _ as to when to _

9. Pre-action protocol ? Set out expectation that lenders will explore … with a borrower before…

10. What if a lender exercises its power of sale under a legal mortgage but the sale proceeds are insufficient to discharge the mortgage debt? - the lender may… for the… = a _ remedy

    1. (Incl interest??)

1. Taking possession of the mortgaged property or appointing a receiver

2. No - as it is a right of the lender (Usually express in the mortgage loan) , if not, right will be implied by statute Into a legal mortgage

3. The power of sale has both arisen and become exercisable

4. As soon as one portion of capital is due i.e. the first repayment date , or interest-only loans - at the legal redemption date

5. Exercisable if:

   1. Notice requiring payment of the whole is served and borrower defaults, Or

   2. If interest on the loan is in arrears of at least two months, or

   3. There is some other breach of the mortgage loan agreement

6. Property at market value, and seek expert advice as to the manner of sale

7. Return any surplus money to the borrower

8. Improve the property, or delay a sale

   1. Unfettered discretion as to when to sell

9. Alternative arrangements w a borrower, before taking possession of residential properties

10. Sue the borrower in contract for the outstanding debt - contractual remedy co-existing with the proprietary remedy of the right to sell

((New) Land Law - Easements) - Overview

Introduction to Easements

1. What are Easements? - they are _ rights over…

2. Common examples (x3) - these are examples of _ easements

3. A right granted over land to use or enjoy it in some way could either be an easement, or it could just be a _

   1. For a right to be an easement and not a _, it must be _ of …, _ as an… and _ against any…

4. Can an easement be a legal interest in land?

   1. But to be - must be granted… to a … i.e. … or for…

5. What about an easement granted for an uncertain term?

6. Easements can be granted or reserved when …. Or …

7. Who is granted an easement? - a _/_ who…

8. Who is reserving an easement? - a _/ _ who…

9. An easement is a __ right in the land

10. For a right to be an easement it must be … and … as an easement

11. If the burdened land has been sold to a new owner, the right… in accordance with…

12. Acquisition - can be by long user… - aka __

    1. There must be at least…

    2. & the right must have been used without … (x3)

13. An easement for an __ term cannot be a _ easement even if it were to be granted by _

1. Private rights over land belonging to another

2. Right of way, right to park, right of storage - positive easements

3. Licence

   1. Capable of being an easement, acquired as an easement, and enforceable against any new owner of the servient land

4. Yes they CAN be

   1. For a term equivalent to a legal estate in the land i.e. forever or for a certain period

5. This can ONLY be an equitable interest in the land

6. Land is sold or leased

7. Tenant/ buyer who recieves the benefit of an easement

8. Landlord/ seller who receives the benefit of an easement

9. Proprietary

10. Capable of being an easement & acquired as an easement

11. Must be protected in accordance with the enforcement rules

12. Of the right - prescription

    1. 20 years of uninterrupted use by a FH owner

    2. Secrecy, force or permission

13. Uncertain term, cannot be a legal easement, even if it were to be granted by deed

((New) Land Law - Easements) - Overview

Capability Rules

1. A right must satisfy the … for an easement

2. Which were established in the case…

3. These capability requirements are that:

   1. There must be a … and ….

      1. This means that there must be a piece of land… (the…) and a piece of land… (the …)

   2. The right must accommodate…

      1. Aka the right must… (not just…)

      2. & there must be _ between … and …

         1. What about land 3 blocks away?

   3. There must be …

      1. Meaning the … and … must be … by …

      2. You cannot have ….

   4. The right must…

      1. Meaning the right must…

      2. Practically this means:

         1. There must be …

         2. The _ and _ of the right must….so it could… or by…

            1. I.e. what about a right to a scenic view? The… and so…

         3. The right must have been…

            1. X5 examples of these

1. Capability criteria

2. Re Ellenborough Park

3. The criteria:

   1. A dominant and servient tenement

      1. That benefits from the right (dominant land) and a piece of land burdened by the right (the servient land)

   2. The right must accommodate the dominant land

      1. The right must benefit the dominant land, not just the owner

      2. There must be proximity between the dominant and servient land

         1. Not sufficiently proximate

   3. There must be diversity of ownership

      1. Dominant and servient land must be owned/ occupied by different people

      2. So you cannot have an easement over your own land!

   4. The right must ‘lie in grant’

      1. Means that the right must be capable of being included in a deed

      2. Practically, this means:

         1. There must be a capable grantor/ grantee

         2. The nature & extent of the right must be clear so it could be described in words/ by reference to a plan

            1. The nature & extent of this is not clear so could not be an easement

         3. Judicially recognised

            1. Right to park, rights of storage, rights of support, rights of drainage, rights to use sporting & leisure facilities

((New) Land Law - Easements) - Overview

Disqualifying Factors

1. BUT a right satisfying the Re Ellenborough Park criteria can be _ from being an easement and therefore not be _ if any of the _ _ factors are present

2. These 3 Disqualifying Factors:

   1. Exercise of the right must not amount to … of the _ land

      1. (As the _ landowner should not be …)

      2. Meaning, does the _ landowner …. Of it?

   2. Exercise of the right by the _ landowner must not involve… by the _ owner

      1. So if exercise of the right will… then it will be _

   3. Exercise of the right must not depend on _ each time the …

      1. While there will be an …, the right should thereafter be exercised …

1. Disqualified, capable, 3 disqualifying factors are present

2. 3 DFs:

   1. Exlcusive possession of the servient land

      1. Servient landowner should not be deprived of reasonable use of the land

      2. Servient landowner retain possession and control

   2. By the dominant landowner, must not involve additional, unavoidable expenditure by the servient owner

      1. Cost the servient landowner money- will be disqualified

   3. Permission each time the dominant landowner wants to exercise that right

      1. Initial permission, ‘as of right’

((New) Land Law - Easements) - Overview

Express Acquisition

1. Most easements are created _ and included …, … or _

2. But easements can also be created _ as part of a …

3. Express acquisition involves…

Easements Capable of Being Legal

1. Where the right is granted for… or …

2. It must be … and then …

   1. The _ must be:

      1. _ as a _

      2. Executed by … (i.e…)

      3. And _ - meaning _

3. What happens if these formality requirements are not complied with? - then the right …

   1. IF! It … For a …

      1. Meaning - it must be …, contain… and signed…

      2. Then it will be a type of ..

Easements Only Capable of Being Equitable

1. Aka it is granted for…

2. Then it must be … and signed .. (i.e…)

Does a right (The easement) ‘lie in grant’?

1. Is there a ….?

2. Is it capable of …?

3. And has the right been …? I.e. a right of way

1. Expressly, included within a contract, transfer deed, or lease

2. Expressly, a separate deal

3. Formalities

1. Forever, or for a certain time

2. Granted by deed, and then registered at the land registry

   1. Deed must be:

      1. Intended as a deed

      2. Executed by the grantor i.e. the servient landowner

      3. Delivered - meaning dated

3. An equitable easement

   1. IF it complies with the requirements for a land contract

      1. In writing, contain all the agreed terms, and signed by both parties

      2. Estate contract

1. An uncertain term

2. Must be in writing and signed by the grantor (the servient landowner)

1. A capable grantor/grantee

2. Is capable of forming the subject matter of a deed

3. Been judicially recognised as an easement t

((New) Land Law - Easements) - Overview

A Prescriptive Easement

1. This must be exercised …x3

2. If i.e. a right of way is exercised for a _ year _ period / by _ user

3. Meaning of without force?

   1. Force includes the …, or ignoring… i.e. _

4. Can a tenant acquire a right this way?

   1. A prescriptive right can only be created…

Right to Light

1. Is there a general right to light?

2. A right to light must be via … ie.. a…

3. Right to light do not attach to … or …

4. Would a FH owner of property concerned about building works taking place on neighbouring land which would block sunlight to their garden have an easement for a right to light potentially?

A man grants a women a right of way over their lane, lane is in very poor state of repair, making it almost impossible to drive across - does he need to repair it?

• the man need…. But must…

• There is no _ on the _ _ to…

1. Without force, without secrecy, and without permission

2. 20 years Uninterrupted period or long user

3. Force

   1. Removal of obstructions, or ignoring protests of the servient owner - incl ignoring signage

4. No!

   1. Between two freehold owners

1. No

2. A defined aperture i.e. window

3. Gardens or open land

4. No

Need not repair the lane but must allow the woman access to do the repairs

• no obligation on the servient owner to carry out the repairs

((New) Land Law - Easements) - Overview

Implied Acquisition

1. Where someone has not acquired an easement expressly, it may be possible to show that… i.e. by _

2. How many methods are there of implied acquisition?

3. If successfully established, the easement would be…

   1. The document is usually a … or .. between the parties or can be a _

4. The easement then takes its status (whether _ or_ ) from the…

   1. Most easements acquired impliedly are implied into a … or… so the status of most implied easements are _

   2. But if an easement were implied into a _, it would only be _

5. Implied legal easement - these operate as _ _ provided that one of the _ below are met:

   1. The right must be…, or

   2. Have been …., or

   3. Is within the _ _ of the _

Implied by Necessity

1. This is a very _ mode of acquisition

2. But can work for either a or of an easement

3. An easement can only be implied by necessity where … that is otherwise _ - so it is …!

1. It has been acquired impliedly i.e. by circumstance

2. 4

3. Implied into a document

   1. Transfer deed or lease betw the parties, or can be a contract

4. Legal or equitable, from the status of the document it is implied into

   1. A transfer deed or legal lease - legal

   2. Contract - would be equitable

5. Overriding interests provided one of conditions met:

   1. Right must be obvious on inspection

   2. Have been used within the prev 12 months,

   3. Within the actual knowledge of the purchaser

1. Very narrow mode

2. Grant or reservation

3. A right of way is being claimed to land that is otherwise inaccessible - so it is necessary to access the land!

((New) Land Law - Easements) - Overview

Implied Acquisition by Common Intention

1. This mode is also very _ in scope but will work in respect of either a _ or _ of an easement

2. An easement can only be implied by common intention where the land … For the … or …without the ….

3. There must be a … which must be ..

4. And the easement must be _ for this … to be achieved

5. Will also work when a right is necessary for the …

   1. I.e.a. Right of way to access the parking is implied by common intention to be able to enjoy…

1. Narrow , a grant or reservation of an easement

2. Cannot be used for the purpose It was sold or leased for, without the benefit of the easement

3. Specific purpose which must be known to the parties

4. Must be essential for this specific purpose to be achieved

5. Enjoyment of an expressly granted easement

   1. The expressly granted right to park!

((New) Land Law - Easements) - Overview

Implied Acquisition Under the Rule in Wheeldon v Burrows

1. Only works for the _ of an easement

   1. So a _ or _ cannot use this mode to _ an easement

2. This mode will apply where land is … (by _ or _ of part of it), and a right is claimed over… that was used by the _ _ (i.e. the _ or _) before…

3. This right is called a ‘_ - _’- meaning a _ easement

4. I.e. a landowner parks on their drive not bc they have an easement to park but bc they own the land. But if the land is subsequently divided, the right (quasi-easement) could become an easement if:

   1. The right is and - meaning the right must have been … and there must be some…

   2. The right is necessary for … - meaning it …

   3. The right was in… at the …

5. This mode will _ an easement into a _

   1. SO it can operate to create….

6. What about path over retained land used by landowner to access a scenic viewpoint? Identifable by a visa able track. - easement for purchaser to use path to access this? - appropriate method of acquisition = by the…

   1. Bc the land was originally _ and _ by the _ in such a way suggesting that a _-_ existed before it was sold

   2. The path was used _ and was _- physical evidence of it

   3. And it is necessary for the ordinary use of the land in that it … to the purchaser

1. Grant

   1. Landlord/ seller cannot use this to reserve an easement

2. Divided for the first time (By sale or lease of part of it), & a right is claimed over the land retained By the common owner (seller/ landlord) before the land was divided

3. Quasi-easement - a potential easement

4. Example

   1. Continuous and apparent. Used reasonably regularly and must be some physical evidence of it

   2. The reasonable use of the dominant land - enhances the dominant land in some way

   3. In use by the seller/ landlord at the date of the transfer/ lease

5. Imply a easement into a contract

   1. Operate to create implied equitable easements

6. The rule in wheeldon v burrows

   1. Owned and used by landowner in such a way suggesting a quasi-easement existed before it was sold

   2. Used continuously and apparent

   3. Enhances the land sold to the pruchaser

((New) Land Law - Easements) - Overview

Implied Acquisition Under LPA 1925, s._

1. Section number?

2. This mode of acquisition only works in respect of the …

3. It will also work if there is a ‘_’ to imply …

   1. Meaning a _ _ or _ _

4. It therefore operates only to …

5. What is the ordinary effect of s.62? To … Over land to… on _ /_

6. How many circumstances are there in which s.62 can be used to imply an easement?

The Upgrade Effect of S.62

1. Where land has been _ by _ or _ add an…

2. This informal permission ie.. to store can be … if the land is… or …

The Platt v Crouch Interpretation of S.62

1. Where land is being sold or leased for …, then any quasi easement (i.e. _ _ Used by the … prior to …)that are _ and _ can be acquired as easements for …. Or… to the …

2. What does continuous mean?

3. What does apparent mean?

4. This mode of acquisition therefore works in the same set of circumstances as the rule… but there are…

   1. Key disctintion = is that the rule in … will also imply an easement into a _

   2. Whereas s.62 requires there…

1. S.62

2. Grant of an easement

3. Conveyance, to imply the easement into

   1. Meaning a legal lease, or transfer deed (NOT a contract!)

4. Create implied legal easements

5. Transfer the benefit of any existing easements over land to the new owner of the dominant land on sale/ lease

6. 2

1. Divided by sale or lease, and an informal permission is granted

2. Can be upgraded to an easement if the land is sold/ leased again

1. For the first time, any quasi easements (potential easements used by the common owner prior to sale/ lease) that are Continuous and apparent can be acquired as easements for the benefit of the land sold or leased to the tenant/ buyer

2. The right must have been used reasonably regularly by the common owner

3. There must be some physical evidence of it

4. In wheeldon v burrows - but there are fewer conditions to satisfy

   1. W v b will also imply an easement into a contract

   2. Whereas s.62 requires there to be a conveyance

((New) Land Law - Easements) - Overview

Enforceability of Easements and Remedies

1. If the servient land has been _, then any easement will only be enforceable if … With..

2. This _ rule depends upon if the servient land is _ or _ land

For Registered Land:

1. Express legal easements - must… as part of their creation. Conseq, they will… of the _ land and will …

2. Implied Legal Easements - are a type of _ _ - meaning it will be ….. despite the fact that…

   1. In order to be an interest, the right must have … or must be _ on …

3. Express Equitable Easements - can be created… . To be enforceable against a …, it must be …. In the ..

   1. If not protected, then a _ (someone who…) would… but a …

4. Implied Equitable Easements - These are very _. They should be … in the … of the …

   1. But given that the easement is _ this is …

   2. & an implied equitable easement is therefore…

5. What about homeowner sells registered property to buyer, neighbour had had a right of way over that property, but did not register this. Can the neighbour enforce this against the new buyer? - yes/no & because the easement… and therefore… as a …

   1. It would not be an overriding interest because only _ _ easements will be these

1. Sold, any element will only be enforceable if protected in accordance with the relevant enforcement rule

2. Enforcement rule depends on if the S land is registered or unregistered land

Registered Land:

1. Be registered as part of their creation - will appeal in the charges register of the servient land & will be enforceable

2. Type of overriding interest - will be binding on a purchaser of the land despite the fact it does not appear on the register

   1. Overriding interest- been exercised in the prev year, or must be obvious on reasonable inspection of the land

3. Without registration. To be enforceable against a purchaser of the servient land, the equitable easement must be protected by notice in the charges register.

   1. Donee (someone who is gifted/ inherits the land) would be bound by an easement, but a purchaser would not be

4. Very rare. Should be protected by notice in the charges register of the burdened land

   1. Implied - unlikely to have been done

   2. Vulnerable if the servient land is sold.

5. No bc the easement was not registered and therefore doesnt bind the buyer as a third party purchaser

   1. Only implied, legal easements

((New) Land Law - Easements) - Overview

Enforceability of Easements and Remedies

Unregistered Land

1. Express and Implied Legal Easements - over unregistered land are … under the principle …

2. Express and Implied Equitable Easements - over unregistered land must be… against …

   1. If not done then the easement will.. But would…

Remedies

1. If someone stops …, an _ is the best remedy to seek to …With … or to…

What is the correct term for a benefit which landowners enjoy over their own property?

What is a negative easement? = one which is _ from the … and does not involve… or…

1. Automatically binding under the principle ‘legal interests rule the world’

2. Be protected by a land charge registered against the name of the servient landowner

   1. Not bind a purchaser of the land But would bind a donee

1. Stops a party using a valid and enforceable easement, an injunction is the best remedy to seek to prevent interference with the right or remove any obstruction

A quasi-easement - could be enjoyed as an easement if land becomes divided later.

Enjoyed from the dominant owner’s own land, does not involve entering/ Using the servient land at all

((New) Land Law ) - Overview

Formalities for Land Contracts v for Deeds

1. Land contract x3

2. Deed x3

1. Land contract:

   1. In writing

   2. Contains all the agreed terms

   3. Signed by both parties

2. Deed:

   1. Clearly labelled/ intended as a deed

   2. Validly executed by the grantor

   3. Delivered (dated)

((New) Land Law ) - Overview

Estate Contracts that can be Deliberately Created

1. Sale Contract? - where a and commit to…

2. Contract for Lease? - where a _ and _ commit to …In…

3. Right of Pre-emotion - a right of _ _ in the event that the …

4. Option Agreement? - a right to … during … that the party…

1. Buyer and seller commit to buy/ sell land

2. Landlord and tenant commit to enter into a lease in the future

3. A right of first refusal in the event the seller decides to sell their land

4. A right to serve notice during a period of time that the party wishes to buy the land

((New) Land Law ) - Overview

Principles of Land Registration

1. The Mirror Principle - idea that the register should… that the property… and all …

2. The Insurance Principle - the idea that the _ of the _ is _ by the _, any _ will usually be… and if a _ is affected they…

3. The Curtain Principle - Idea that the register should….. (the _ _). But … matters are…

1. Reflect all matters the property has the benefit of and all matters the property is subject to

2. Accuracy of the register is guaranteed by the state & any errors will usually be rectified & if a person is affected, they may claim compensation

3. The register records the ownership of the legal estate in the property/ the legal title - But equitable ownerships/ matters are kept off the register

((New) Land Law - Freehold Covenants) - Overview

Introduction to Freehold Covenants

1. Covenantor = the person who…and owns…

2. Covenantee = the person who…

3. Example: Alice sells a house to Bob, in the sale agreement Alice promises / covenants that she will not build any structure higher than two storeys on the property.

   1. Who is the covenantor?

   2. Who is the covenantee?

4. Example 2: what if a landlord grants a lease to a tenant, and the tenant promises to pay rent?

   1. Covenantor?

   2. Covenantee?

5. The covenantee owning the land which has the benefit of the covenant is able to _ the covenant if it is _

6. The legal issue in relation to FH covenants is whether these are _ against _ in title to the original parties - bc there is no _ _ between these and the original parties

7. A sucessor in title to the dominant landowner (the successor _) must show …. To be able to enforce the covenant

8. & if there is a sucessor covenantor they want to enforce it against - must also show that…

1. Makes the covenant/ promise (/enters into the covenant subject to the burden of the promise) And owns the servient land

2. The person who receives the benefit of the covenant/ promise

3. Example

   1. Alice

   2. Bob

4. Example 2

   1. Tenant - makes promise to pay rent

   2. Covenantee - receives benefit of that promise

5. Enforce the covenant/ sue if it is breached

6. Enforceable against successors in title to the original parties - bc no contractual relationship between these

7. (Successor covenantee) That the benefit of the covenant has passed to them

8. The burden of the covenant has passed to that sucessor covenantor

((New) Land Law - Freehold Covenants) - Overview

Introduction to Freehold Covenants

1. A FH covenant is a _ in respect of _ _

2. To be validly granted a FH covenant need only be… and..

   1. (But they are often…)

3. A restrictive (_) covenant is an… in the land

4. The original parties to a covenant? & between these a covenant is _ as a matter of…

5. Is a covenant enforceable when the dominant land and/ or servient land is transferred to new owners?

   1. For the covenant to be enforceable by a new owner of the servient land….

   2. For the covenant to be enforceable by a new owner of the dominant land…

6. What are the two sets of rules for passing the benefit and burden of a covenant? & cannot _ these

7. What rules used if restrictive / negative covenant?

8. What rules used if positive covenant?

Positive & Restrictive Covenants

1. If a covenantor must put in … x3 to comply with the covenant then it will be positive

2. If a covenant must put can be complied with by _ - it will be restrictive/ negative

3. But note: a covenant can also be … and contain… - it then cannot be _ into…

   1. Instead you must ascertain the covenant’s…

   2. I.e. a covenant not to build without the consent of the adjoining landowner

4. The overall correct approach to be taken when detemrining if covenants are positive/ negative or mixed? - look at the … of the covenant rather than the … used

1. Promise in respect on FH land

2. In writing and signed by the grantor

   1. (Often contained within a transfer deed)

3. Negative covenant = an equitable interest in the land

4. The covenantor and Covenantee - enforceable as a matter of contract law

5. Enforceable if land transferred to new owners?

   1. The burden must pass

   2. The benefit must pass

6. Equitable rules and common law rules- cannot mix!

7. Equitable rules

8. Common law rules

1. Time, effort, money

2. Inaction

3. Mixed, contain both positive and restrictive parts - cannot then be split into 2 separate covenants

   1. Overall effect

4. Underlying substance, rather than precise words used

((New) Land Law - Freehold Covenants) - Overview

Equitable Rules: Burden

1. The equitable rules should be…. Because at common law the GR is that the burden of a covenant will…

2. To pass the burden of a covenant in equity to a successor _, the covenant must pass the _ in … which has _ conditions:

   1. The covenant must…

   2. The covenant must …

      1. Meaning it must…

      2. And there must be…

      3. The original covenantee and their successor must also … At the time of…

   3. There must be _ for the … to run

      1. This can be _ in the _’s _ or will be _ by statute if not - unless the covenant is expressed to be …

      2. Would the wording ‘with the intention of binding land known as …’ be suff for express intention that the burden should run?

   4. There must be _ of the covenant - this involves application of …

      1. For registered land - the covenant should be ….

      2. For unregistered land - the covenant should be … by… against … at the …

→ if not done for either of these - then the covenant would…. But would…

& if the covenant passes all these conditions, then it can be …

Appropriate remedy to stop a breach might be?

1. Considered first , not pass to a successor

2. Covenantor, rule in Tulk v Moxhay - 4 conditions:

   1. The covenant must be restrictive/ negative

   2. Accommodate the dominant tenement/ land

      1. Benefit it

      2. Proximity betw the d and servient land

      3. Hold an interest in the land i.e own the FH estate At time of creation and enforcement

   3. Intention For the burden of the covenant to run

      1. Express in covenants wording, or implied by statute if not - unless personal to a named party

      2. Yes

   4. Notice of the covenant - the relevant enforcement rules

      1. Regd- protected by entry of a notice in the charges register of the burdened land

      2. Unregd - protected by entry of a land charge against the name of the covenantor at the Land Charges Registry

→ would not bind a purchaser of the land , but would bind a donee (gifted/ inherits)

Enforced against a successor covenantor in equity

An injunction

((New) Land Law - Freehold Covenants) - Overview

Equitable Rules: Benefit

1. If the Dominant land has been sold, then a successor _ will only be able to enforce a _ _ if the benefit has…

2. For the benefit to pass in equity, the covenant must … and pass by… (x3)

3. Annexation - occurs at the time… and means the benefit becomes… , passing…

   1. Can be _ if the covenant is expressed as…

   2. Of if no annexation, it will occur by - unless the effect of the has been _- i.e. if the covenant is …

4. Assignment = is the _ of the _ each time the …

   1. Must be … and … by the party _ the benefit

5. A building scheme - applies where a … is built and all the houses sold are..

1. Covenantee, a restrictive covenant, if the benefit has passed in equity

2. Benefit the dominant land & pass by annexation/ assignment/ a building scheme

3. A covenant is created, means the benefit becomes a permanent part of the dominant land, passing each time the dominant land is sold.

   1. Express, if covenant expressed as benefitting the d land

   2. If no express annexation - will occur by statute unless effect of the statute has been excluded - if personal to a named party

4. Trasnfer of the benefit each time the dominant land is sold

   1. In writing, signed by party transferring the benefit

5. New housing estate is built, and all houses sold are subject to the same restrictive covenants

   1. See Ellions v reacher?

((New) Land Law - Freehold Covenants) - Overview

Common Law Rules: Burden and Indirect Enforcement

1. These rules must be applied for…

2. The GR at common law is that the burden of a covenant …

   1. & the original _ remains _ for any _ of the covenant by its ..

   2. What is the only remedy that can be sought against the original covenantor in these circumstances & why?

   3. If the original covenantor has to pay damages for breach by its _- it may be able to _ anything it has… if it took an _ _ from its… when …

      1. = chain as a means of indirect enforcement - with each party…

         1. But this chain can easily break down if… or…

1. Positive covenants

2. Cannot pass to a successor

   1. Original covenantor remains liable for any breaches of the covenant by its successors in title

   2. Damages, as they are no longer in control of the land

   3. Successor, recover anything it has to pay out if it took an indemnity covenant from its successor, when it sold the burdened land

      1. Suing their sucessors along the chain

         1. A party dies or is declared bankrupt.

((New) Land Law - Freehold Covenants) - Overview

Common Law Rules - The Doctrine of Mutual Benefit and Burden

1. There is a _ exception to the GR that the burden of a covenant does…

2. & this applies if the servient landowner receives… that… and is…

3. This is known as…

4. The benefit, which will be an… (I.e. to use facilities), must be _ _ to the burden covenant (I.e. to contribute to the maintenance of the facilities) & must have been …

5. There must also be a … (the easement)

   1. If the servient landowner chooses not to …, then they will not have to … And it will not _

   2. But if they do choose to take the benefit, then the,,,

1. Limited exception, does not pass at common law

2. An associated benefit that relates to and is closely linked to the burden

3. Doctrine of mutual benefit and burden

4. Easement to do something, closely linked , been conferred in the same transfer deed

5. A genuine choice to accept the benefit

   1. Take the benefit of the easement, they will not have to submit to the burden of the associated covenant & it will not pass.

   2. Burden of the associated covenant will pass

((New) Land Law - Freehold Covenants) - Overview

Common Law Rules - Benefit:

1. If the Dominant land has changed hands and the successor is looking to enforce a _ _ against the original _ Or a _ Then the …

2. At common law, the benefit can pass by either:

   1. _ assignment - must be … and _ with _given to the…

   2. _ assignment - if the conditions established in _ are satisfied. These are:

      1. The covenant must…

      2. There must be _ that the _ should _ - either _in the covenant _ or if not will be …

      3. The original covenantee must have owned a _ _ in the _ when the covenant was _

      4. The sucessor covenantee must own a _ _ in the _ when the covenant is …

1. Positive covenant against the original covenantor / Successor, then the benefit of the covenant must have passed

2. Can pass at CL by either:

   1. Express assignment - in writing, signed, notice given to original covenantor

   2. Implied assignment - P&A Swift. Conditions:

      1. Benefit the dominant land

      2. Intention that the benefit should pass - express in covenant wording or if not will be implied by statute unless excluded

      3. Own a legal estate in the land when the covenant was granted

      4. Legal estate in the land when covenant is being enforced

((New) Land Law - Freehold Covenants) - Overview

Discharge, Modification and Release of Covenants

1. _ covenants can potentially …

2. Covenants can become _

3. There are various ways in which a covenant can be _ or _

4. What happens if the dominant and servient land comes under the same ownership? - then the covenants are … by _

5. There can also be _ _ of a covenant, where the dominant landowner agrees…

   1. This can be done by _

   2. Or it could be argued that a covenant has been _ _ if the dominant landowner does …

6. An _ can also be made to the _ _ (_ chamber) for _ _ or _ of a covenant of the grounds, i.e. that is has become _ due to changes in the … or _, or that its existence_ the _ _ of land

1. Restrictive covenants can potentially last forever

2. Can become obsolete

3. Discharged or modified

4. Automatically extinguished by merger

5. Express release, agrees to discharge the covenant

   1. By deed

   2. Impliedly discharged - does nothing when the covenant is breached openly

6. Application can also be made to the Upper Tribunal (Lands Chamber) for statutory discharge or modification of a covenant on the grounds i.e. that it has become obsolete due to changes in the character of the property or neighbourhood or that its existence impeded the reasonable use of the land

((New) Land Law - Freehold Covenants) - Overview

Other notes/ Info

1. Express annexation makes the _ of the covenant a _ _ of the dominant landowner - allowing it to … without needing..

2. the benefit does not need to be _ _ each time the dominant landowner is transferred it it was _

3. Covenants can be enforced by sucessors if properly _ or _

4. NOTE: the rule in … passes the _ of a covenant in _, not the _

5. GR at common law = that the burden of a covenant does not pass. When the servient land is sold, is the burden lost and therefore cannot be enforced? - Y/N & Why

   1. What remedy can be sought against the original covenantor once the servient land has been sold ?

6. What is the only means of passing the benefit of a covenant to a successor at common law?

   1. & formalities for expressly doing so?

7. The most usual way for the benefit of a covenant to pass at common law is by…

8. What type of covenants can be discharged or modified by the tribunal under statute?

1. Benefit of the covenant, a permanent part of the dominant landowner, allowing it to pass automatically to sucessors in title without needing specific mention in the transfer deed

2. Expressly assigned each time the dominant land is transferred if it was annexed

3. Annexed or assigned

4. Tulk v moxhay , passes the burden of a covenant in equity, not the benefit

5. No - the burden remains with the original covenantor who ca be sued for any breaches by their successor

   1. Damages only - no longer have land, cannot carry out an injunction/ order for specific performance

6. Assignment - express/ implied

   1. In writing, notice given to the covenantor

7. Implied assignment

8. Restrictive covenants only

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Introduction to Enforcement

1. A _right in the land can bind a … of the _ land

2. Whether it is actually enforceable depends upon application of the …

3. If the burdened land is registered land then the enforcement rules under… need to be applied

   1. This act places all _ and _ in land into one of _ categories

   2. What are these x3?

4. The enforcement rules are the law behind the process of … - which is undertaken by a … before..

A Purchaser for Value/ Valuable Consideration

1. = a …

2. They will be bound by x2: _ _ _ (which you can identify from …- the _ _) and any _ _ over the land

   1. These are interests which … but will still…

3. Who is not a purchaser for value?

   1. They will still be bound by… - regardless of whether these have been protected…

   2. This is known as the ..

1. Proprietary right in the land can bind a 3rd party new owner of the burdened land

2. Relevant enforcement rule

3. LRA 2002 (land reg act)

   1. Estates and interests, into one of 3 categories

   2. Registrable dispositions, interests protected by entry, overriding interests.

4. Title investigation - undertaken by a buyer’s solicitor before exchange of contracts

1. A buyer of the land

2. Properly protected interests - can idenitfy from the registered title/ the official copies , and, Any overriding interests over the land

   1. Do not appear on the registered title but will still be bringing on a purchaser

3. A donee - someone who is gifted / inherits the land

   1. All properly created interests - been protected in accordance w the relevant enforcement rule or not

   2. Basic rule of priority

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Registrable Dispositions: Legal Interests

1. Legal _ and _ (subject to only a couple of __), cannot … without,…

   1. This _ is compulsory to transfer/ create the _ or _

   2. So these are Known as _ _

2. What are the exceptions to these? … x2 - these are both types of …

3. Registrable dispositions - so a buyer of a registered FH estate does not acquire legal title/ ownership until…

4. & a tenant does not acquire legal lease for more than 7 years unless the deed granting the lease is …

5. A legal _, express _ _, and landlord’s right of _ are also not validly created unless deed granting the right is registered at the land registry

6. So legal estates and interests are transactions which must be _ registered

1. Legal estates & interest, subject to only couple exceptions, cannot exist without registering the transaction

   1. Registration, create the estate or interest

   2. Registrable dispositons

2. Legal leases of 7 years or less, and implied legal easements - overriding interests

3. The transfer deed is registered at the land registry

4. Registered at the land registry

5. Legal mortgage, express legal easement, landlord’s right of entry

6. Substantively

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Equitable Interests Protected by Entry and Overreaching

1. But an equitable interest in the land can be created & validly exist without…

2. BUT to bind a purchaser (not donee) of the land, the interest must… & can do so via either:

   1. A _ in the _ _ of the _ land , or

   2. A _ in the _ register of the _ land

3. All equitable interests but what can be protected by the entry of a notice?

4. Note: practically both registrable dispositions and equitable interests appear in the _ register- little difference in appearance

5. A restriction in the proprietorship register restricts the … without the ….

   1. & there are different types of _

6. A beneficiary’s interest in a trust of land can be protected by …

   1. & this alerts a _ to the fact that..

   2. This then triggers…

7. But note: a beneficiary’s interest in a trust of land can still be _ without a _- a restriction just .. .

1. Registration at the land registry

2. Be protected

   1. A notice in the charges register of the burdened land, or

   2. A restriction in the proprietorship register of the burdened land

3. An interest in a trust of land cant

4. Charges register

5. The owner’s ability to deal with the land, without the conditions of the restriction being met

   1. Different types of restriction

6. The entry of restriction

   1. Alerts the purchaser to the fact that the land is held on trust

   2. The process of overreaching

7. Overreached without a restriction - ensures it happens/ triggers the process

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Overreaching

1. When must this be considered? - whenever a… exists - & it only applies here

2. It applies equally to _ or _ land

3. Overreaching is the process by which a beneficiary’s _ interest in land under… is _ from the land into the _ paid (by either the … or …)

4. To overreach a beneficiary’s interest, the monies must be paid to …

   1. The trustee(s) is who… as the…

   2. What if there is only one legal owner? Then… - would usually be ../ ..

5. What if the monies are paid only to one trustee/ i.e. a sole legal owner? - then overreaching … and the interest of the beneficiary…

   1. Whether the interest will then be binding & enforceable against a buyer/ lender involves application of …

      1. which ofc depends on on whether the _ land is _ or not

      2. If the land is _ then the interest will be enforceable as an… if the beneficiary is in…

1. A trust of land

2. Registered or unregistered land

3. Equitable interest in land under a trust is transferred from the land into the monies paid (by either buyer of land/ a lender)

4. At least 2 trustees

   1. Registered at the land registry as the legal owner(s)

   2. A second trustee can be appointed - beneficiary or solicitor usually

5. Does not occur, and the interest of the beneficiary remains in the land

   1. The enforcement rules

      1. Burdened land registered or not?

      2. Registered - enforceable as an overriding interest - if the beneficiary is in actual occupation of the land

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Overriding Interests

1. How many categories & what?

2. Legal leases of 7 years or less - these are not _ _ and will be … as an overriding interest

3. Interests of persons in…

   1. I.e. the equitable interest held by the … that has not been _

   2. In order to have an OI under this category there must be an… and the _ holder must be in …. - the burdened land

   3. What will not defeat actual occupation? provided there is,,,

      1. Could this include if someone is in hospital or travelling for several months provided they have an intention to return?

   4. Exceptions:

      1. If the interest holder….,

      2. Or the interest is not …. On… of the land,

      3. And the purchaser …

      4. Then the interest will not be _

4. What about if the interest held be a beneficiary of a trust of land has been overreached and in actual occupation? & explanation

1. 3 - legal leases of 7 years or less, interests of persons in ‘actual occupation’ of the land, implied legal easements.

2. Not registrable dispositions, will be binding on a new owner of the burdened land as an OI

3. In actual occuaption of the land

   1. Beneficiary of a trust in the land that has not been overreached

   2. Interest in the land, & the interest holder must be in actual occupation of the land which is subject to the interest- the burdened land

   3. Temporary absences from the land - provided there is an intention to return.

      1. Yes

   4. Exceptions:

      1. If the interest holder fails to disclose their interest upon request, or

      2. The interest is not obvious on reasonable inspection of the land, and

      3. The purchaser does not actually know about it

      4. Will not be overriding

4. Cannot be an overriding interest - as if overreaching has occurred, there is no longer an interest in the land!

((New) Land Law - Registered Land: Enforcement of Interests) - Overview

Overriding Interests

1. Implied Legal Easements

   1. Only applies to easements that have arisen _!

   2. I.e. under the rule in… or by operation of …

   3. AND are _ in status

2. Where does an implied easement get its status from?

   1. When will an implied easement be legal in nature? - when… x2

   2. When will an implied easement only be equitable in nature and therefore not be overriding?

3. An implied legal easements will only be overriding if: x2 requirements

   1. It is … - so there is some … of the right, or

   2. It has been… to …

1. Implied legal easements

   1. Impliedly

   2. Wheeldon v Burrows , operation of s.62 LPA 925

   3. Legal in status

2. From the status of the document it is implied into

   1. When implied into a legal transfer deed or legal lease

   2. When implied into a contract

3. 2 requirements:

   1. Obviously on reasonable inspection of the land- so there is some physical evidence

   2. Exercised in the 12 months prior to the completion of the sale

((New) Land Law - Unregistered Land: Enforcement of Interests) - Overview

Introduction to Enforcement Over Unregistered Land

1. A proprietary right in the land can bind a …. Of the burdened land

2. Whether it will actually be enforceable depends upon application of…

3. If the burdened land is unregistered land, then a buyer will need to… Of the ..

   1. These title deeds include… of the land - from which ownership to the seller can be traced

4. Upon completion, the buyer will then need to … - aka …

5. A buyer will want to know what…. Upon completion

6. Whether an interest will be binding upon a purchaser will depend upon whether the interest is … or .. in nature

   1. & if _ - the year the interest…

7. All __ interestS will be binding under what principle?

   1. So i.e. a legal right of way/ easement will binding on a … of … under this principle

8. What is the only exception to this rule? A … - aka a …

   1. Which should be _ by _ of a _ _

9. Most equitable interests should be _ by the… against the … at the time the…

10. What are the only equitable interests which cannot be protected by a land charge? X3

11. These interests remain…

1. 3rd party new owner

2. The relevant enforcement rule

3. Conduct a detailed review of the Title deeds for the property

   1. Old conveyances of the land

4. Register the land for the first time - compulsory first registration

5. Proprietary rights they will be bound by upon completion

6. Legal or equitable in nature

   1. If equitable - year created

7. All legal interests - principle ‘legal rights bind the whole world’

   1. New owner of unregistered land

8. A second legal mortgage/ puisne mortgage

   1. Should be protected by entry of a land charge

9. Protected by the entry of a land charge against the name of the landowner at the time the interest is granted

10. Equitable restrictive covenants and easements created before 1926 (v rare) AND the equitable interest of a beneficiary of a trust in land that has NOT been overreached

11. Subject to the doctrine of notice

((New) Land Law - Unregistered Land: Enforcement of Interests) - Overview

Land Charges

1. These are a means of protecting the … created over _ land post _

2. What are the different classes of land charge?

3. Need entry of a land charge, against,,, act the time the right is _/ _

4. What name do you enter the land charge against? The name…

5. What happens if a land charge is entered against the wrong name?

6. A buyer of unregistered land carries out a search at … against the full name of the _ and the other …. Of the land (as spelt in the _ _) to determine if there are any… over the land

7. What does entry of a land charge mean ? Re the interest & the purchaser?

8. What if there is no entry of a land charge? - then the interest will… (even if the consideration… and the buyer…), but would still be…

1. Majority of equitable interests created over unregistered land post 1926

2. Different classes:

   1. Class C (IV) - Estate Contract

   2. Class D (II) - restrictive covenant

   3. Class D (III) - equitable easement

3. The name of the landowner at the time the right is granted/ created

4. In the title deed

5. Then it would be invalid

6. Land charges department, full name of the seller and other historic owners of the land (title deeds), to determine if there are any equitable interests over the land

7. Means the interest will be binding on a purchaser

8. Not be binding on the purchaser of the land (Even if nominal consideration, and buyer actually knows about it), but would still be binding on a donee.

((New) Land Law - Unregistered Land: Enforcement of Interests) - Overview

The Doctrine of Notice

1. This continues to apply to … and ….(Very rare) AND interests… that have not…

Overreaching

1. This must be considered whenever a … exists

2. It applies only to…

3. & applies equally to .., and …

4. Overreaching is the process in which a beneficiary’s…. Under a _ is _ from the _ into… (by either… or …)

5. To overreach a beneficiary’s interest what must happen? The monies must…

   1. What if there is only one legal owner?

   2. Who is this usually? X2

6. What happens if monies are only paid to one legal owner/ trustee? - then … and the interest…

7. Whether the interest will then be binding & enforceable against a buyer/ lender depends on?

   1. & these ofc depend on?

   2. What if it is unregistered land? - then the interest will be__ unless… (& this involves application of the doctrine of notice)

1. Pre-1926 equitable easements and restrictive covenants (v rare) & interests in a trust of land held by a beneficiary that have not been overreached

1. Trust of land

2. Trusts of land

3. Registered and unregistered land

4. Equitable interest in land under a trust is transferred from the land into the monies paid by either buyer of land/ a lender

5. Be paid to at least two trustees

   1. Then a second trustee can be appointed

   2. The beneficiary of a solicitor

6. Overreaching does not occur and the beneficiary’s interest remains in the land

7. Application of the enforcement rules

   1. Whether land is registered/ not

   2. Enforceable unless the purchaser/ lender is equity’s darling

((New) Land Law - Unregistered Land: Enforcement of Interests) - Overview

The Doctrine of Notice

Equity’s Darling

1. Pre-1926 equitable easements and restrictive covenants and interests in a trust of land that have not been overreached will be binding on everyone except..

2. Who is equity’s darling? - a … for… without _

3. What does bona fide mean?

4. Purchaser? - anyone who… - other than … (i.e. not obtaining land upon _ - this would be …)

5. Value - means … - so a _ can never be equity’s darling

6. Legal estate - means … or … (or…)

7. Without notice - means without … x3 notice

   1. & what these mean?

   2. A_ - the purchaser…

   3. c_- is what the… - it places the buyer… & … the land

   4. I_ - is the _ that the … has - anything that…. Or… about will…

1. Equity’s darling

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

3. Buyer must act in good faith

4. Acquires an interest in the land other than by operation of law (i.e. obtaining land upon intestacy=e.g. of operation by law)

5. For money - donee can never be equity’s D

6. Actual, constructive or imputed notice

   1. Actual - purchaser knows of the equitable interest

   2. Constructive notice -is what the buyer should reasonably have found out about - places buyer under an obligation to investigate the title deeds and inspect the land

   3. Imputed notice- the knowledge that the buyer’s agent has - anything that the buyer’s agent knows/ or should know about will be imputed to the buyer

((New) Land Law - Co-Ownership) - Overview

Introduction to Trusts of Land

1. Co-ownership exists where… own the …

2. In this situation what is imposed?

3. & this has the effect of what?

The Legal Title

1. Held by?

2. These are the … at the …

3. & they have …

The Equitable Title

1. This is also known as?

2. Held by?

3. Names are …

4. And arrangements relating to the equitable title do not… (principle?)

5. Note: a person can and often will be …

1. 2+ people together own the same piece of land

2. A trust of land

3. Separating the legal title to the land from the equitable title (the ownerships)

1. Trustees

2. Registered owner(s) at the Land Registry

3. Powers and duties of management

1. The beneficial ownership

2. Held by the benefciaries

3. Kept private

4. Do not appear on the register (the curtain principle)

5. Both a trustee & a beneficiary of land

((New) Land Law - Co-Ownership) - Overview

Introduction to Trusts of Land

Types of Trust

1. A trust of land can be _created or can also arise _

2. E_ - the _ of trust must be … and …

   1. Where is there an option for buyer(s) of land to do this ?

3. I_ - there are no … for the creation of this - instead it will exist because of …

   1. I.e. if someone …, but they are not…. - then a … will be implied

      1. The person who made the contribution will be a … and hold…

Concepts & Rules on Legal and Equitable Titles

1. Legal title/ ownership - can only be held by a max… & who cannot hold this?

   1. Must be held as …

2. Equitable title/ beneficial ownership - no. People it can be held by? & this includes?

   1. How can this be held? As

1. Expressly created, or arise impliedly

2. Express - declaration of trust must evidenced in writing and signed by the declarant(s)

   1. In the land registry standard form transfer deed - form TR1

3. No formalities - certain circumstances

   1. Contributes to the purchase price of a property But they are not a named legal owner - a trust of land will be implied.

      1. A beneficiary and hold the equitable title

1. Max 4 adults, minors cannot hold this

   1. A joint tenancy

2. Unlimited no. People, including minors

   1. Can be held as an joint tenancy or a tenancy in common

((New) Land Law - Co-Ownership) - Overview

Introduction to Trusts of Land

2 Forms of Co-Ownership - Joint Tenancy and Tenancy In Common

1. Joint tenants are seen as a?

2. What must the co-owners have to have a joint tenancy?

   1. & what are these + explain each

   2. Unity of P_ - the co-owners must be equally… the … rather than having … of… (this distinguishes co-ownership from …)

   3. Unity of i_ - All co-owners must… i.e. the …

   4. Unity of t_ - the co-owners’ interests must have…

   5. Unity of t_ - the co-owners must have … from… (i.e the…)

1. Single collective entity

2. The 4 unities of title

   1. Unity of possession - co-owners must be equally entitled to possess the whole of the premises rather than having exclusive possession of their own defined part (distinguishes it co-ownership from sole-ownerships)

   2. Unity of interest - all co-owners must hold the same interest in the land i.e. the FH estate

   3. Unity of time - started at the same time

   4. Unity of title - must have derived their interest from the same document - i.e. the same transfer deed

((New) Land Law - Co-Ownership) - Overview

2 Forms of Co-ownership

1. Where co-owners are JTs (in legal/ equitable ownership) then what right will apply?

   1. This means that on the … of one of the JTs, their interest…

   2. So it will not pass in… or…

2. tenants in common (equitable ownership only), have a but share in the land

   1. Can reflect the _ made when the land was acquired i..e…

   2. Does the right of survivorship apply here?

   3. What happens if a tenant in common dies ? Their beneficial ownership will…

   4. What is the only unity TICs need to have? - but the other unities may be present

1. So co-owners must hold the legal title as a JT, but can choose to hold the equitable title as a JT or TIC - it is a good idea for the parties to make a what as to how they wish to hold the equitable title?

   1. In the absence of this, what is the presumption of?

   2. UNLESS the land is acquired as a… or the purchase of … has been…

1. The Right of survivorship

   1. Death of one of the JTs - their interest accrues to the surviving joint tenants

   2. In accordance with the deceased’s will or under the intestacy rules

2. Distinct but undivided

   1. Contribution - i.e. 25%

   2. No

   3. Pass in accordance with their will or under the intestacy rules if there is no will

   4. Unity of possession

1. Express declaration

   1. A joint tenancy

   2. Unless acquired as a business asset or purchase of non-domestic property has been paid in unequal shares

((New) Land Law - Co-Ownership) - Overview

Severance

1. If co-owners hold the equitable title as JTs they may wish to change their form of co-ownership or events may happen which…. - this process is _

2. What cannot be severed & why?

3. What is the effect of severance? - the equitable JT who initiates it …

   1. & practically this means that what will no longer apply in respect of their equitable interest?

4. What happens if there are only 2 equitable JTs on severance? - they will bold hold… Aka an _ share

   1. This is regardless of what? Any..

5. What happens if there are more than 2 JTs on severance? - the remaining JTs will… And the co-owner who initiated the severance will… As a … - based on what?

   1. So what if there were 4 equitable JTs, on severance the co-owner initiating action would hold… and the three remaining JTs would hold… as…

6. Severance can be by… or …

7. The notice in writing by the serving co-owner must be given to…

   1. Does it need to be signed?

   2. What must it demonstrate? - an… to … ( can be inferred)

   3. The notice must be … by …, … or … to the last… or .. of the other equitable JTs

   4. When does severance take place? - so it doesn’t matter if what..

1. Automatically change the form to a TIC -process= severance

2. The legal title - bc it must be held as a JT

3. Becomes a TIC

   1. The right of survivorship

4. A 50% share as a TIC - equal share

   1. Any initial contribution

5. Continue to hold the equitable title as JTs, co-owner initiating severance will hold an equal share as a TIC - based on no. JTs

   1. 25%, remaining JTs hold 75% as a single entity

6. Notice in writing or other acts of things

7. All the other equitable JTs

   1. No just in writing

   2. Must demonstrate an unequivocal and irrevocable intention to sever the equitable JT immediately

   3. Validly served by hand delivery, first class post or registered post to the last known place of residence/ business of the other equitable JTs

   4. At the moment the notice is served, so doesnt matter if the notice is not read

((New) Land Law - Co-Ownership) - Overview

Severance By Other Acts/ Things

1. Means by one of three methods - what are these?

Unilateral Act by one Joint Tenant

1. Subdivided into what? X3

2. _ alienation - occurs when the … of their … by way of … or …

3. _ alienation- They only _ dispose of …, by way of … or…

   1. I.e. serving co-owner grants a … over… - this has the effect of … the co-owner’s equitable interest

4. _ alienation - they are …Then severance of their equitable interest…

Mutual Agreement

1. Occurs when … agree that …. Is severed

2. I.e. all agree that they will…

3. The agreement need not be … or … and the parties can subsequently… ,

1. A unilateral act by one JT, mutual agreement, mutual conduct

Uni Act by One JT

1. Acts of total alienation, partial alienation, involuntary alienation

2. Total alienation - serving co-owner gets rid of their equitable interest permanently by sale/ gift

3. Partial alienation - temporarily dispose of their interest - by mortgage or lease

   1. Grants a mortgage over their equitable interest (not legal mortgage) - serving

4. Involuntary alienation - declared bankrupt - happens automatically

Mutual Agreement

1. All equitable JTs agree that one person’s interest is severed

2. Buy one out

3. In writing or enforceable, parties can subsequently change minds,

((New) Land Law - Co-Ownership) - Overview

Severance By Other Acts/ Things

Mutual Conduct

1. Occurs where _ equitable Joint Tenants in such… that… as _

2. Ie.. the making of … which are inconsistent with the …, has been held to severe an equitable joint tenancy by mutual conduct = these are almost…

3. What is an example of something that will NOT be an act of severance? = one JT…

1. All equitable JTs behave in such a way that demonstrates that they all regard the interest as separate !

2. Making of mirror wills, inconsistent w the law of survivorship = almost identical wills

3. Making a will leaving their interest to someone else

((New) Land Law - Co-Ownership) - Overview

Resolution of Disputes Relating to Co-Owned Land

1. The Trusts of Land and Appointment of Trustees Act 1996 TOLATA gives what? - … to … regarding …

2. S.14 - any person who is a _ or has… subject … can make… under this section

   1. Includes ? (X3)

3. The court can make an order for what? Or any…

4. But in making its decision the court must… - these are:

   1. The _ of the person(s) (if any) who…

   2. The _ for which the… Was _ & whether this…for the…

      1. If it is continuing then…

   3. The _ of any _ who occupy the land & how they…

   4. The interests/ wishes of the … of any _

      1. If a beneficiary is not …., may weigh heavily..

   5. The _ and _ of any _ of _ _ or (in the case of dispute), the _ according to value of …

      1. Allows the court to consider circumstances such as the _ of the _

5. What happens if the court makes an order for sale? - this will…. Held by… in the same way that paying … will

   1. So (practically means that) any purchaser of land sold subject to an order for sale need not worry about…

1. Court jurisdiction to hear applications re co-owned land disputes

2. Trustee or has an interest in property subject to a trust of land can make an application to the court for an order under this section

   1. Incls beneficiaries, mortgagees, trustees in bankruptcy

3. For sale or any order it sees fit

4. Consider & balance the factors in s.15

   1. Intentions of person(s) who created the trust

   2. Purposes for which the property subject to trust was bought & whether this Still continues For majority co-owners

      1. Weighs in favour of not making an order for sale

   3. Welfare of any minors occupying the land & whether would be impacted by an order for sale

   4. Secured creditor of any beneficiary

      1. If ben not making repayments - weighs in favour or order for sale

   5. Circumstances and wishes of any ben of full age / the majority according to value of their combined interests

      1. Health of the beneficiaires

5. Overreach all the equitable interests in the land held by beneficiaires in the same way that paying the purchase monies to two trustees will

   1. Being bound by any equitable interests held by a beneficiary

((New) Land Law - Co-Ownership) - Overview

Other Information

1. Which type of ownership allows for individual shares in the property which can be according to contributions if wished?

2. What type of ownership allows each co-owner to pass their share according to their will/ differently?

3. What type of ownership includes the right of survivorship?

   1. This means that upon a death of one of the JT, their interest in the property… & this is irrespective of any…

4. Joint tenancy - notion that joint tenants are considered as a … owning the …

5. Can a joint tenant unilaterally sever the joint tenancy without the need for agreement from the other JTs?

   1. & does the notice need to be signed by the severing JT to be effective?

   2. But it must…

   3. Does it need to be read?

6. 3 friends are beneficial JTs of a property, one wants to sever their share. Prior, they had paid of 70% off the outstanding mortgage loan on the property. Initial contributions towards purchase price were equal. They give the required notice in writing to others to sever the JT. How will the equitable title be held after severance & what about the difference in contributions?

7. A good description of the legal owners where there is a trust of land = they are…

8. A & B (a couple) buy a registered property together, each contributing 50% of the purchase price and being registered jointly as the legal owners as the Land Registry - is a trust imposed in the circumstances?

   1. They are both the .. .and ..

9. Whenever land is co-owned (as w A and B), a trust is ..

10. Can the legal and equitable title be held by the same people? Yes/ no - you can be…

1. Tenancy in common

2. Tenancy in common

3. Joint tenancy

   1. Passes automatically to the surviving joint tenant(s) - irrespective of any will provision

4. Single entity owning the whole property

5. Yes

   1. No

   2. Clearly express intention to sever

   3. No just delivered/ validly served

6. The severing indiv holds 1/3 share as a tenant in common, other two hold 2/3 share together as joint tenants still. Doesnt matter about contirbutions difference/ immaterial - get equal share.

7. Trustees acting in an administrative capacity

8. Yes automatically imposed- A & B hold the property on trust for themselves -

   1. both the legal and equitable owners

9. Automatically imposed

10. Yes - can be both a trustee & beneficiary

((New) Land Law - Co-Ownership) - Overview

Other Information

1. What unity is essential in order for co-ownership to exist?

2. Unity of possession means that the co-owners interest..

3. What is more accurate description of concept of survivorship? - when a JT dies their share immediately accrues to the surviving JTs or their notional interest does so? & why

4. A tenancy in common = a distinct share in the whole property but why is it also ‘undivided”? - because a holder cannot say…

5. Example of when an equitable tenancy in common will be PRESUMED & in non-domestic cases only - presumption can be rebutted by ..

6. which title can be severed?

7. A and B (couple) bought a property together, paid 75% and 25% of purchase price each. Declared themselves to be equitable JTs, A then severed the JT - position in equity now? & why!

8. Should one factor of the s.15 TOLATA factors be given greater weight than the others?

1. Unity of possession

2. Must all take effect at the same time

3. Latter- notional interest accrues - bc JTs dont have ‘shares’!! They are seen as one single entity

4. That any particular part is theirs

5. Unequal contirbutions to purchase price, presumed in non-domestic cases only, can be rebutted by express declaration of an eq JT

6. Only the equitable title! → TIC

7. Both TIC with 50% share each - Bc cannot have just one JT!

8. No/ not indicated by the act

((New) Land Law - Essential Requirements of a Lease) - Overview

Introduction to Leases

1. A Lease/ LH estate is created when one person (with… = the _) grants… to … (the _) to …. That land _

2. Can a piece of land be subject to a no. Leasehold estates?

   1. Each over… of …OR of the same part but… - i.e.a … or an…

3. What type of right is a lease?

   1. & this means that it can be … To recover… for the…

4. Is a lease capable of binding a third party?

   1. Meaning that a new… of the land will own the _ subject to …

5. Contrast to a _ which is just a personal right/ permission to be on someone’s land

   1. In comparison, essential requirements must be met for a right of occupation to be a lease not just a _

   2. X3 requirements

   3. X1 not required

6. Note: any label…. Is not _ - instead the courts will always look at…

1. With an estate in the land (landlord) grants a temporary right to another person (tenant) to use and enjoy that land exclusively

2. Yes

   1. Each over different parts of the land, or over the same part but for a shorter duration i.e. sublease, under lease

3. A proprietary right in the land

   1. Enforced by an action To recovery possession of the land for the duration of the lease

4. Yes

   1. New FH owner of the burdened land will own the FH subject to the lease!

5. Licence

   1. Licence

   2. Certainty of term, exclusive possession, compliance with correct formalities

   3. Payment of rent is not required!

6. Label given to arrangement is not decisive - always look at the true substance of the arrangement

((New) Land Law - Essential Requirements of a Lease) - Overview

Certainty of Term

1. Means that the tenancy must be granted for a … so that the parties…

2. 2x ways this can be evidenced by:

   1. A…. Or

   2. A …

3. Most common? - this is where the … of the arrangement is known… i.e. …

4. A _ term = can be … x4 - this runs from .. to … until…

   1. Each period is seen as…

   2. How can this be entered into? - latter if an occupier is in occupation of premises and …

   3. The term of a periodic tenancy references …, not how it is …

   4. So what if the rent is £10,000 pa, payable monthly? - it will be an…

1. For a certain duration, so parties know when the arrangement will end

2. Fixed term or periodic term

3. A fixed term- max duration of the arrangement is known from the outset - i.e. 5 years, 10 years, 100 yrs

4. Periodic term - weekly, monthly, quarterly, annually - runs from period to period until a notice to quit is served

   1. A certain term

   2. Expressly or impliedly - Paying rent by ref to a period

   3. How the rent is calculated, not how it is payable!

   4. Annual periodic tenancy

((New) Land Law - Essential Requirements of a Lease) - Overview

Exclusive Possession

1. This is the right to…, including …

2. It is a question of _, with courts looking at the … of the arrangement

3. What will not be decisive? If a landlord…

4. What if the landlord has a right to access the property?

   1. If Landlord has unrestricted access?

   2. If landlord has restricted access? & 2 examples of when this might be common

5. What if the landlord provides services i.e. cleaning? Then the occupier… and will…

6. What if the landlord can relocate the occupier to alternative accommodation?

7. What if the landlord can share occupation or introduce others to the property?

8. In business context, what if landlord retains excessive control over how the occupier runts its business?

Genuine Clause/ Sham?

1. A clause in an agreement which might defeat EP will only be upheld if it is _

2. Courts will look at the … and will strike out any … which are inserted into an agreement to make it look like a _

3. Cosniderations when determining if clause is genuine/ a sham

   1. Would it be …

      1. i.e. to introduce another on the factors considering the nature of the accommodation & relationship between occupiers

   2. How _ is the clause _?

      1. If it is … then it is more likely to …

   3. Has the clause been…?

      1. If it has then it is likely to… and may well then…

1. To exclude all others from the property, including the landlord

2. Fact, true substance of the arrangement

3. Retains a key to the premises

4. Depends

   1. Occupier wont have EP

   2. Evidence of EP - upon 24 hours notice, or in event of an emergency

5. Will not have EP - and will be a lodger

6. Occupier wont have EP

7. Occupier wont have EP

8. Business occupier wont have EP

1. Genuine

2. Substance of the agreement, strike out any sham clauses inserted to make agreement look like a license

3. Considerations

   1. Realistic to exercise the clause in the circumstances?

   2. How widely is the clause drafted

      1. If very wide - more likely to be a sham

   3. Has the clause been exercised in the past

      1. - if yes by landlord in past then likely to be a genuine clause & may well prevent occupier from having EP of premises

((New) Land Law - Essential Requirements of a Lease) - Overview

Multiple Occupancy of a Lease

1. If there is more than one occupier of the premises, what do the occupiers need to show?

2. What are the occupiers seen as where there is a JT? - a _ _ which has…

3. Practical consequence of holding lease as a JT = means that the tenants are … for the whole rent

   1. So what if one of the occupiers moved out? - the other(s) would be …

4. What are the 4 unities of title needed for a JT

Factors That Defeat a Lease

1. Even if there is EP, there are certain factors that can prevent a lease from existing/ defeat one x2

2. The arrangement is an act of generosity

   1. Then there will be no _ as there is no…

   2. Common an issue where grantor & occupier are..

   3. But a pre-existing relationship does not automatically mean that…

   4. 2 examples of things that will be evidence of ITCLR and therefore a lease can exist?

3. The agreement is a service occupancy

   1. = where an employer is allowing ….. for the better…

   2. Then this will create a _ not a _

   3. I.e. a .. or …

   4. But there can still be a lease where they are not living accom for the…

1. That they have a joint tenancy

2. Single entity which has EP Of the premises

3. Jointly and severally liable

   1. Liable to cover the full amount of the rent

4. Unity of possession, unity of interest, unity of time, unity of title

Factors that Defeat a Lease

1. An ‘act of generosity’, a service occupancy

2. Act of generosity

   1. No lease as no ITCLR

   2. family/ friends

   3. The right of occupation is an act of generosity

   4. Occupier pays a market rent, and/ or there is a high degree of formality to arrangement

3. Service occupancy

   1. Employer allows employee to live in the employer’s accom for the better performance of their duties

   2. Licence not lease !

   3. Nanny or caretaker

   4. Better performance of their duties as employee

((New) Land Law - Essential Requirements of a Lease) - Overview

Formalities to Create a Lease

1. The relevant formalities to create a lease depend upon…

2. Legal leases:

   1. Lease over 7 years must… and …

   2. Lease 7 years or less - must… but does not need to be …

      1. It will be an _ _ and therefore _ on a … of the burdened land

   3. The exception to the requirement that a legal leases must be granted by deed? For a …If certain…

      1. Conditions x3

         1. The lease… (the tenant…)

         2. The lease is granted at…, and

         3. There is no… by the tenant

      2. For a short lease falling within this exception, it does not need… and no _ are required to create…

      3. Such a short lease is aka as a …

   4. What type of tenancy will almost always fall within this short lease exception?

3. Equitable Leases

   1. If the _ to create a legal lease are …, then equity may be prepared to recognise the arrangement as a …. - aka an… IF the document complies with…

   2. Meaning that the document must be …, contain… and be …by…

   3. This is a form of _ _

   4. And it grants the tenant(s) an?

   5. As well as an equitable lease, if the formalities to create a legal lease are not complied with, what else might there be in the same set of circumstances?

      1. & what would prevail? & why

1. Terms of the lease

2. Legal leases

   1. 7 years+ - granted by deed and then registered at the Land Registry

   2. 7 years or less - must be granted by deed, but does not need to be registered at the land registry

      1. Overriding interest - binding on a new owner of the burdened land

   3. Lease of three years or less - if certain conditions are met

      1. The lease takes effect in possession (tenant moves in straight away)

      2. Market rent

      3. There is no upfront Premium payable by tenant

      4. To be in writing, no formalities required to create the legal estate

      5. A parol lease

   4. A periodic tenancy

3. Equitable lease

   1. Formalities to create a legal lease are not complied with - equity may be prepared to recognise the arrangement as a contract to grant a legal lease - aka an equitable lease - if doc complies w the requirements for a land contract

   2. In writing, contain all the agreed terms, be signed by both parties

   3. Estate contract

   4. Grants tenant(s) an equitable interest in the land

   5. An implied periodic tenancy

      1. Equitable lease- principle equity prevails over the law

((New) Land Law - Essential Requirements of a Lease) - Overview

Other Information

1. Can term for ‘as long as the occupier is a student at university’ be a certain term?

2. For there to be a lease, does rent have to be payable?

3. What kind of lease is a lease of a flat with rent payable of £12k pa payable by equal monthly payments?

4. 2 parties enter in a document labelled lease, granted for ‘as long as the tenant is trading’. Occupier moves in, begins paying annual rent under the lease, expressed as being payable quarterly in advance. - does tenant have a lease / not? And if so what?

5. Will an agreement containing a right to introduce others always defeat EP? & why/ why not

6. Why might the courts be more willing to accept the label given to an agreement by parties where they are in a commercial arrangement? Bc… Also they are often…

1. No

2. No- not essential

3. An express periodic tenancy of one year (bc lease is written down it is express !)

4. No certain term but tenant is paying annual rent so a period tenancy of one year will be implied

5. No - courts look at substance of the clause - reality/ whether sham and if sham wont defeat EP

6. Bargaining power betw commercial entities tends to be more equal (also often negotiated & parties legally represented)

((New) Land Law - Covenants in Leases) - Overview

Lease Anatomy

1. A landlord and tenant will usually enter a _ lease - may take a while to _

2. Basic structure of most residential and commercial leases - includes provisions:

   1. _, the _, any _, and _ provisions

   2. Demise (i.e…) , and _

   3. _ covenants

   4. _ covenants

   5. Rights _ and _ (these are _!)

   6. _ (a lease must be granted by _ ,unless…, which means it must…by …)

3. A tenant may do … & so this is why a lease will often contain…

   1. These are essentially _ given by the tenant

4. Note: there are often fewer _ covenants than _ covenants

5. What is a common landlord covenant example? = covenant for _ _ - essentially not to … or… during the lease term

6. If the term of the lease is over 7 years, it must be registered at the land registry and will contain.. - appear at the beginning of the lease and … the reg process

1. Formal lease, may take a while to negotiate

2. Structure/ provisions

   1. Parties, date, definitions, interpretation provisions

   2. Demise (premises let to tenant), and rent

   3. Tenant covenants

   4. Landlord covenants

   5. Rights granted and reserved - easements!

   6. Execution (must be granted by deed, unless falls within the short lease exception, which means it must be validly executed by the landlord)

3. Anything not expressly prohibited by the lease - leases often contain extensive covenants given by the tenant

   1. Promises given by tenant

4. Fewer landlord covenants than tenant ones

5. Covenant for quiet enjoyment - not to interfere with the tenant’s possession or enjoyment of the property during the lease term

6. Prescribed lease clauses - speed up reg process

((New) Land Law - Covenants in Leases) - Overview

Covenants in Leases

1. The 4 usual tenant covenants found in most residential and commercial leases ?

Repair Covenants

1. The standard of repair is the condition in which … by a … having regard to …

2. Note: a covenant to keep or _ the premises in _ includes an obligation to …. If they are in _when the lease _

   1. So this could be very…

3. A tenant will not be obliged to carry out a repair if it is considered _

4. If the _ or substantially the _ of the premises need _ or the costs of the _ _ are similar to the _ of the _ of the premises then they will most likely be considered _ & therefore will not…

Alteration Covenants

1. A lease usually allows the tenant to …

User Covenants

1. A lease often contains a tenant covenant relating to the … i.e. for _ purposes only

1. Repair, alterations, user and alienation

1. They would be kept by a reasonably minded tenant, having regard to their character, type and age of the premises

2. Maintain the premises in repair, incls obligation to put them into repair if they are in disrepair when the lease beings

   1. Onerous for a tenant

3. Renewal

4. Whole/ substantially the whole of the premises need replacing or the costs of the repair works are similar to the costs of the value of the premises - mos likely a renewal & wont fall in tenant’s repair obligation

1. Make some alterations to the premises

1. Use of the premises, i..e for retail purposes only

((New) Land Law - Covenants in Leases) - Overview

Covenants in Leases

Alienation Covenants

1. Alienation= a term used to describe a method for the_ to _ of … or … in the property

2. In shorter leases, landlord wants control over who is in _ of the premises and the lease will often contains…

3. Alienation includes x2 (Main forms)

4. Assignment - where the tenant…, called the _, who becomes…

   1. Assignment transfers the … - as with transfer of FH estate this must be by _

   2. & if the lease is a _ lease then the transfer deed must then be…

5. Underletting/ subletting of the premises - where the tenant _ a _ of the _ or _ of its premises to a _ _, which is …

   1. Formalities to grant a sublease/ under lease are the…

      1. Sublease over 7 years -

      2. Sublease of 7 years or less. -

      3. Sublease of 3 years or less -

6. Term alienation also includes… and … the lease too

1. Tenant to dispose of the whole/ part of their interest in the property

2. Occupation, covenants against alienation

3. Assignment, underletting/ subletting

4. Assignment - transfers the lease to a 3rd party (the assignee), who becomes the tenant under the lease

   1. Transfers legal estate- must be by deed

   2. Registered lease - registered at the Land Reg

5. Underletting/ subletting - tenant grants a lease of whole/ part of its premises to a 3rd party ,which is shorter than its own lease

   1. Same as formalities to create a lease

      1. Granted by deed then registered

      2. Granted by deed, but doesn’t need to be registered as it will be an overriding interest

      3. Sublease of 3 years or less - can be granted with no formalities provided it falls within the short lease exception

6. Sharing occupation, and charging/ mortgaging the lease too

((New) Land Law - Covenants in Leases) - Overview

Types of covenant

1. The tenant shall not do something is an _ covenant

   1. Here the landlord has … whether to grant…

2. The tenant shall not do something without the landlord’s consent - is a _ covenant

   1. Means the landlord has discretion whether to grant… and is not …

3. The tenant shall not do something without the landlord’s consent, such consent is not to be unreasonably withheld - this is a .. covenant

   1. Imposes an obligation on the landlord to .. when…

   2. Reasonableness means the reasons for any _ must relate to … i.e. because a proposed sub-tenant has…

Enforceability of Leasehold Covenants

1. Rules on the enforceability of LH covenants apply when a lease is … and/or the …, so that the original parties to the lease are…

2. Landlord and Tenant Covenants Act 1995 (LTCA) (New stat regime) governs the rules governing what? - the …

   1. Act aimed to address the harshness of the principle of … which applies to old leases - those granted…

1. Absolute

   1. Landlord has absolute discretion whether to grant permission to what the tenant wants to do

2. Qualified

   1. Whether to grant consent in the circumstances, and is not required to act reasonably

3. Fully qualified covenant

   1. Act reasonably when considering the consent

   2. Refusal must relate to the landlord and tenant relationship - proposed sub tenant has bad references

1. Lease is assigned, and /or the FH is sold, so the original parties to the lease are no longer the current landlord and/ or tenant

2. The passing of the benefit and burden of the LH covenants

   1. Principle of original tenant liability - granted before 1st Jan 1996

((New) Land Law - Covenants in Leases) - Overview

Original Tenant Liability - ‘Old Leases’

1. A tenant under an old lease remains… for the …

   1. This is bc of … that exists between the … to the lease

   2. So the original tenant is ‘on the hook’ and _ for …

2. Privity of contract exists between… only

3. Privity of estate exists between … and,,,

1. Liable for tenant breaches of covenant for the duration of the lease

   1. Bc of privity of contract that exists between the original parties to the lease

   2. Liable for breaches by all future assignees

2. The original parties to the lease

3. The current landlord and the current tenant

((New) Land Law - Covenants in Leases) - Overview

Enforceability of Leasehold Covenants

New Leases - Tenant Liability

1. In respect of new leases, the original tenant is …. Upon assignment

2. This release of liability is _ unless:

   1. The assignment _ the _ covenant I.e. the tenant has _ the lease without…

      1. This would then be an _ _

   2. Or the tenant has … prior to the _

      1. A tenant will not be released from… and will… I.e. for any arrears that have accrued while it was a tenant

3. Effect of this automatic release is that the original tenant will not be liable for _ by the tenant’s _ unless … - something which may be required by… as a …

1. Released from contractual liability

2. Automatic, unless

   1. Assignment breaches the alienation covenant - tenant assigned lease without consent of landlord

      1. Excluded assignment

   2. Breached a covenant prior to the assignment

      1. Released from its own breaches and will remain liable

3. Will not be liable for default by the tenant’s assignee unless it has entered into an AGA (authorised guarantee agreement) - may be required by the landlord as a condition of its consent to any assignment

((New) Land Law - Covenants in Leases) - Overview

Enforceability of Leasehold Covenants

Authorised Guarantee Agreement (AGA)

1. Most landlords of _ premises will require an _ tenant of a _ lease to enter into an _ as a condition of its…

2. Under the AGA the outgoing tenant acts as a … So that if the assignee …, the landlord can…

3. What happens to the AGA if the assignee subsequently assigns the lease to a third party?

The Difference Between Original Tenant Liability and Liability Under an AGA

1. Former tenant of an old lease is liable for… during…,

2. Whereas a tenant under a new lease will…

New Leases - Landlord Liability

1. Re the original landlord, there is no _ _ from contractual liability upon…

2. But the landlord can request a … By serving…. Within …. Of the landlord’s reversion

3. If this request is refused, then a release can be … if it is _ to do so

1. Commercial premises, outgoing tenant of a new leases to enter into an AGA as a condition of its consent to any assignment

2. Guarantor to the assignee, if assignee breaches a covenant, the landlord can sue the tenant

3. The AGA from the former tenant will fall away

1. All subsequent assignees’ breaches during the term

2. Only be liable under an AGA for its incoming assignee, and no party after that

1. Automatic release from contractual liability, upon ale of the reversion

2. Release from contractual liability by serving a notice on the original tenant within 4 weeks of the sale of the landlord’s reversion

3. Release can be granted by the country court - if reasonable to do so

((New) Land Law - Covenants in Leases) - Overview

Enforceability of Leasehold Covenants

New Leases - Benefit and Burden of All Covenants

1. On a sale of the reversion or assignment of the lease, the _ and _ of all _ and _ covenants (unless they are …), pass _ under the LTCA 1995.

Personal Covenant

1. A covenant will be _ to be personal if the party is ….

2. I.e. X covenants to only use the premises for Y reason - this is _ to X only and therefore …

LTCA 1995 - Retrospective Provisions

1. Although the majority of this act does not apply to …

2. Certain provisions do apply _ to … & help to lessen the impact of …

3. What sections of this act apply in respect of both old and new leases where the LL wants to pursue a… for a …

   1. Where the former tenant is liable under … for old leases

   2. Or former tenant remains liable under… for new leases

4. What is a fixed charge? -incls _, _ charge, or _ _ (i.e. arrears)

1. Benefit and burden of all LL and T covenants (unless they are expressed to be personal to indiv parties), pass automatically under the lTCA 1995

1. Expressed to be personal if the party is identifiable in the covenant

2. Personal to X only, therefore will not pass to successors

1. Old leases/ those created pre 1st January 1996

2. Retrospectively to old leases & help to lessen the impact of original tenant liability

3. Former tenant for a fixed charge

   1. Original tenant liability

   2. An AGA

4. Rent, service charge, or insurance payments

((New) Land Law - Covenants in Leases) - Overview

Enforceability of Leasehold Covenants

LTCA 1995 - Retrospective Provisions

S.17 is re ? ,s.18 is? , s.19 is?

S.17 - Default Notice

1. To _ any fixed charges, the LL must … of the claim on the …within… of the charge…

2. Means a LL cannot let… over anything longer than .. and then claim then back from the…

3. I.e. if the current tenant/ defaulting assignee is in arrears of 9 months, the LL loses the right to claim what?

S.18 - Liability for Variations

1. The former tenant will only be liable to pay anything arising because of a…if that variation was… at….

2. Would the original rent being increased because of a rent review clause be a foreseeable variation or not?

Re default notice, liability for variations, overriding lease

1. Recover any fixed charges, serve notice of the claim on the former tenant w/in 6 months of the charge becoming due

2. Arrears accrue over anything longer than 6 months and then claim them back from the former tenant

3. To claim for 3 months of them

1. Because of a variation to the lease if that variation was foreseeable and anticipated at the time the lease was entered into

2. Yes - foreseeable

((New) Land Law - Covenants in Leases) - Overview

Enforceability of Leasehold Covenants

LTCA 1995 - Retrospective Provisions

S.19 - Overriding Lease

1. Where the former tenants pays…, it is entitled to an … from the landlord

2. This _ _ gives the former tenant _

3. I.e. if the current landlord serves a default notice to the former tenant because the current tenant (assignee) is in default, then the former tenant can … - which puts it in the position of being … (the defaulting assignee)

4. As the _ to the current tenant (defaulting assignee) - it can choose to … to the current tenant in default and then _ the overriding lease to … or…

Subleases

1. Where there is a sublease in place, there is no direct relationship between… and …

2. LTCA 1995 allows _, but not _ covenants in _ leases to be _ against any _ or _ of the premises

3. As a condition of its consent to any subletting, the LL will usually require a _ covenant from the … that it will…

1. The sum demanded in full, entitled to an overriding lease from the LL

2. OL gives the former tenants control

3. Request an overriding lease from- position of being LL of the current tenant

4. As lL to current tenant - can choose to forfeit the lease to current tenant in default and then assign the OL / or sublet to a new party

1. The head landlord and the sub-tenant

2. Restrictive, not positive covenants in new leases to be enforced against any owner/ occupier of the premises

3. Direct covenant from the subtenant that it will observe the provisions in the lease

((New) Land Law - Covenants in Leases) - Overview

Other Information

1. Charging? = using the lease as …

2. Surrendering? = is a way of …. The tenant …, and the landlord _

3. Would replacement of an entire structural component like a roof be a renewal or a repair & therefore under the tenant’s obligation to repair or not?

4. Refusal of assignee/ subtenant where there is a fully qualified covenant re this - examples of what lL’s decision to consent/ not should be based to be reasonable? & not…

5. An express indemnity covenant allows the former tenant to … they have paid to the _ from the _ but it does not absolve them of what?

6. Would a tenant transferring the remaining 5 years of its 10 year registered lease to a third party be assignment or sub-letting?

7. LL granted a lease to a T, T then granted a sublease to the subtenant. The sublease contains the same LH covenants as the head lease. The ST is now in breach of the user covenant and the decorating covenant. - who could LL sue?

8. LL granted a new lease to a T. The T assigned the lease to Assignee 1 with the landlord’s consent and gave the landlord an AGA. A1 recently assigned the lease to A2 without the landlord’s consent. If A2 breached any of the T’s covenants, who could the LL pursue? For remedy for the breaches of covenant

9. Does a LL have to grant an overriding lease upon request from a former tenant that pays the arrears?

10. How long will the overriding lease last for?

11. Will it contain all of the same covenants?

1. Security for a loan

2. Ending the lease, tenant hands it back, and LL accepts

3. Renewal - not under t obligation to repair

4. Things like financial stability/ suitability for the premises, not personal preferences (must relate to LL-T relationship)

5. Recoup damages they have paid to the LL from the assignee, but it does not absolve them of liability to the LL

6. Assignment - transfer of remaining lease

7. LL can sue the ST directly for breach of a restrictive covenant - but would have to sue the T for breach of the decorating covenant (as this is positive) & is also in the head lease

8. LL may pursue the tenant, A1 or A2

9. Yes. Must grant

10. The length of the original lease plus 3 days

11. Yes

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

What rights a LL has in the event of tenant breach of covenant & different ways a lease can come to an end

Landlord’s Remedies

1. What is the most powerful remedy available to a LL in respect of breaches of both _ and _ covenants?

2. This is a right to? - to…. And … in the event of a _

Landlord’s Remedies for Breach of a RENT Covenant

1. _ action - the LL can _ the Tenant for the _

   1. But when is this likely to be of little practical value?

2. _ _ _ recovery - CRAR

   1. This process entitles the LL of _ premises to … of its intention to… at the premises and then use an … to take …. Up to the …. - which are then paid….

   2. What can CRAR only be used in respect of ?

   3. It cannot be used to recover arrears of … or any other sum reserved as _ in the lease i.e. _ rent

1. Rent and non-rent covenants - is forfeiture

2. A right to re-enter the premises and end the lease in the event of a breach

1. Debt action - LL can sue the T for the debt

   1. Where the T cannot pay the rent - then unlikely to be able to pay the damages awarded

2. Commercial rent arrears recovery

   1. LL of commercial premises to serve at least 7 days’ notice of its intention to take control of the tenant’s goods at the premises, and then use an enforcement agent to take control of the tenant’s goods up to the value of the arrears - then paid off from the proceeds of sale

   2. The principal rent

   3. Service charge/ any other sum reserved as rent in the lease i.e. insurance rent

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Landlord’s Remedies: Breach of Other Covenants - non-rent ones i.e. repair/ user/ alterations

What are these x4?

1. Damages

   1. Claim for damages - the ordinary _ rules apply

   2. For breach of a repair covenant - this remedy is… ; a LL can only claim for the amount by which… Due to the _ which may be_

2. Injunction

   1. The LL could seek an _ to _ any _ I.e. to _ an unauthorised use of the premises

3. Specific performance

   1. LL could seek an order for this to _ the _ to _with the lease _ I.e. to make them carry out any repairs required

   2. But likelihood of being ordered against a tenant & why?

4. Self-Help

   1. If the lease contains a … clause then the LL will have this remedy available to in in respect of a breach of the…

   2. This is a right for the LL to …, do…, and then …. As a _

Damages, injunction, specific performance, self-help

1. Contractual

   1. Additionally limited - amount by which the reversionary interest has diminished in value due to the disrepair - which may be negligible

2. Seek an injunction to stop any breach - to stop…

3. Force tenant to comply with the lease provisions

   1. Very unlikely - damages are considered adequate

4. Jervis v Harris clause - breach of the tenant’s repair covenant

   1. LL to enter the premises, do the repairs itself and then recover the cost of this from the T as a debt

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture

1. The process under which a LL can _ a lease before… by exercising its…

2. Is there an _ right of entry?

   1. In _ leases, there must be an …. - the right will never be _

   2. A well-drawn lease will grant a LL the right to … in the event of a Tenant … and in the event of tenant _

   3. An equitable lease is much more _ - usually arises in the context of a …

      1. A right to forfeit for non-payment of rent will only be _ into equitable leases

3. The process for forfeiture in respect of … and … is different

4. First you need to consider if the LL has…

Waiver

1. Can occur by the _ or its _, where, with the …., it does some _ recognising…

2. Then the LL is deemed to have made its… not to …. And is held to have _ its right

3. The most common instance of waiver occurs where a LL continues to demand and accept _ from the …

   1. The acceptance of _ is evidence of the LL’s intention that… despite…

4. The lL does not need to _ to waiver its right

5. Whether the lL has waived its right forever depends upon… and a distinction must be made between x2

1. Terminate a lease before the expiry date by exercising its right of re-entry

2. Express right of entry?

   1. Legal leases - must be an express forfeiture clause - right will never be implied

   2. Forfeit in event of a Tenant breach of covenant, and tenant insolvency

   3. Rare - failed legal grant

      1. Implied only into eq leases

3. Non-payment of rent and breach of other covenants

4. Waived its right to forfeit?

1. Landlord (or its agent), w knowledge of the breach of covenant, does some act recognising the continued existence of the lease

2. Irrevocable choice not to terminate the lease - waived right

3. Rent from the tenant in default

   1. Rent - evidence of LL’s intention that the lease should continue depsite the breach

4. Intend to waiver

5. Forever, depends upon type of breach & must distinguish between continuing breaches of covenant and non-continuing breaches of covenant

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture

Waiver

Continuing Breaches of Covenant

1. These take place and reoccur …

2. 2 examples of a continuous breach - each day on which the premises is not in _ or is _ represents a _ breach

3. Therefore the right _ _ on the _ day there is a _

4. So the reprucussions of a _ by a landlord are much …

Non-Continuing Breaches of Covenant

1. Aka a … breach

2. Such as .. or … without consent, then the _ is _

3. & the lease cannot then be _ for that …

4. Example of something treated as a non-continuing breach?

   1. Each individual non-payment of rent is treated as …

   2. And the right of forfeit arises agaiN if…

   3. Assuming waiver has not occurred, then the LL is able..

1. Each day

2. Failure to repair or insure the premises - each day not in repair or uninsured represents a fresh breach

3. Right arises again on the next day that there is a breach

4. Waiver by ll - much less significant

1. Once and for all breach

2. Assigning/ subletting - then waiver is permanent

3. Forfeited for that specific breach

4. Non-payment of rent

   1. A separate breach

   2. The tenant misses another payment in the future

   3. To exercise this right

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture

Waiver

Exercising the Right in Respect of Non-Payment of Rent

1. The LL must have made a …., unless

   1. There is an … in the lease i.e. the rent is expressed as … whether …., (quite common) or

   2. There are more than….

2. The LL can then proceed to _ the lease by either:

   1. …. The property and …

      1. Only available in respect of _ premises

      2. The LL must not _ or … to secure _ otherwise it will be…

   2. By … to court

      1. If the premises are …, a …_ be obtained

Relief

1. The tenant may then… for…

2. Relief means the court’s _ to allow…

3. The tenant can apply for relief:

   1. Before…

   2. After… (within…), and

   3. After … - for which the … does not apply

4. Relief will usually be granted if what?

1. A formal demand for payment of the rent, unless

   1. Express exemption in the lease i.e. rent payable whether formally demanded or not , or

   2. More than 6 months of rental arrears

2. Forfeit the lease by:

   1. Physically re-entering the property and changing the locks

      1. Commercial premises

      2. Threaten or ruse force to secure entry , otherwise will commit a criminal offence

   2. By possession proceedings to court

      1. Whole/ part residential, a court order must be obtained

1. Apply to the court for relief from forfeiture

2. Court’s discretion to allow the lease to continue

3. Can apply:

   1. Before any court order,

   2. After any court order (w/in 6 months)

   3. After peaceable re-entry (6 month time limit does not apply here)

4. If arrears can be paid by the tenant

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture

Waiver

Exercising the Right to Forfeit in Respect of Breach of Other Covenants (non-rent)

! The procedure in s.146 LPA 1925 must be followed!

1. The LL must serve a … (a s.146_ ) which must:

   1. _ the breach

   2. Request… if the landlord…, and

   3. If it is possible, request…. Within…

2. If the tenant does _ the breach - then the LL…

3. If the _ served by the LL does not comply with the provisions of S.146 then it will be _

Is the breach capable of remedy?

1. Traditional approach taken by courts = to ask whether compliance with … coupled with .. could effectively rectify the … or .. caused by the _

2. Starting point is that most breaches…

3. Except breaches of covenants not to …, and _ or _ user

4. If the breach is _ of remedy or not remedied within …, then the LL can proceed to_ by …. (In the case of _ premises only) or apply…

1. Serve a statutory notice (a s.146 notice), must:

   1. Specify the breach

   2. Request compensation is paid if the LL wishes, and

   3. If possible, request that the T remedies the breach within a reasonable time

2. If the T does remedy the breach - then LL loses right to forfeit

3. If the notice is served by LL doesnt comply - will be void

1. Compliance w a s.146 notice , coupled w appropriate compensation could effectively rectify the harm/ damaged caused by the breach

2. Are capable of remedy

3. Not to sublet, or illegal or immoral user

4. In incapable of remedy or not remedied within a reasonable time, then LL can proceed to forfeit by physical re-entry (comm premises) or apply for a court order

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture

Relief

1. The T retains a right to apply for relief under s.146(2) _ a _ _ is made but not _

2. I.e. if a possession order is…, the tenant will not…

3. Relief will usually be granted to a tenant who can show that it has in fact …., or where the court is persuaded that it is _ for the lease to _ despite the _

4. The courts power to grant relief is _

5. If the LL exercises its right by peaceable re-entry, rather than…., then relief will be available to the tenant within ….

Breach of a Repair Covenant - Additional Protection

1. If breach is of a repair covenant, there is more protection available for _ under the Leasehold Property (Repairs) Act 1938, which applies to a covenant to repair in a lease of … where there are…

2. The s.146 _ must _ the tenant of its …. Under the act

3. & if the tenant does, then the LL cannot… without the leave/ ….

1. Before a court order is made but not after

2. Granted by the court, tenant will not then be able to apply for relief

3. Has in fact complied with the tenant covenants, or court is otherwise persuaded reasonable for lease to continue despite the breaches

4. Broad

5. Applying for possession order by the court, within a reasonable time after the landlord’s re-entry

1. Available for tenants, 7 years or more, where there are at least 3 years left to run

2. Notice must inform the tenant of its right to serve a counter notice under the act

3. Proceed to claim forfeiture without the leave/ permission of the court

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Forfeiture- subleases

1. If a head lease is forfeiture then any sublease …/ it is _

2. A subtenant can …. Even if the tenant is not able to …

3. What would relief here consist of? The court …. In the sub-tenant on … as the court thinks fit

Ending a lease

1. _ is not the only way a leased can end, other reasons include:

   1. _ of time - when the … of a lease…

   2. The service of a … in the case of a _ tenancy

      1. How much notice is required? I.e. for a monthly periodic tenancy - requires..

      2. what about for an annual periodic tenancy?

      3. For a residential lease?

   3. If the lease contains a _ _ - which is a right for ../.. parties to serve _ to end the lease on a … or on a ….

   4. _ - where both parties _ to end the lease before… and the tenant… the premises to the LL, and the LL _

   5. If the tenant purchase the … and therefore is in effect both .. at the time , this will end the lease by _ - the lease _ into the _ title and is extinguished

1. Ceases to exist/ is destroyed

2. Apply for relief even if the tenant is not able to obtain relief

3. Vesting the head lease in the sub tenant on such terms the court thinks fit

1. Forfeiture. Other ways

   1. Effluxion of time - fixed term of a lease comes to an end

   2. Serving of notice to quit in a periodic tenancy

      1. One full period’s notice - one month’s notice in this case to be given

      2. 6 months’ notice must be given

      3. At least 4 weeks’ notice must be given

   3. Break clause - right for either/ both parties to serve notice to end the lease Ona. Fixed date or on a rolling basis

   4. Surrender - both parties agree to end the lease before the end of the term - tenant hands back the premises to LL, LL accepts

   5. FH reversion, both LL and Tenant, ends lease by merger - lease merges into the FH title and is extinguished

((New) Land Law - Landlord’s Remedies and Ending a Lease) - Overview

Other Information:

1. Note forfeiture is a more _ remedy & will therefore might not be justified solely by an unauthorised … for example - especially without attempts first to compel _ i.e. via an injunction

   1. Especially if there is no indication that the LL wishes to … in the circumstances

2. For breaches of covenants other than non-payment of rent what must the LL do? Even for commercial premises?

3. Must the LL notice include a requirement for the tenant to remedy it within a reasonable time? _ if.. - which a breach of _ tends to be

4. Peaceable re-entry is only allowed without court order for purely…

5. What duration of unpaid rent will override the need for a court order in mixed/ purely personal premises?

6. What is usually the best remedy option in respect of a tenant breach of a repair covenant?

   1. But there has to be an _ right to do this In the lease - it will not be _

7. What remedy is not appropriate in the event of non-payment of rent? Because…

8. Will a right for the LL to forfeit for breaches of a rent covenant be implied into a legal lease? Yes/no? - there must be…

9. A formal demand for the rent due must be made unless the lease…

10. LL forfeits a lease for non-payment of rent via a court order. When may relief be granted after the date of the court order? If…

    1. But if the forfeiture were for breach of a non-rent covenant and a court order would be made, there woudl then be …

11. When is a LL required to serve a s.146 notice on the T? Whenever that has been a breach of …

1. Severe remedy, unauthorised change in use, without first attempt to compel compliance - injunction

   1. End the lease

2. Serve a s.146 notice. Yes.

3. Yes if the breach is capable of being remedied - breach of user tends to be

4. Commercial premises

5. 6 months +

6. Self-help - exercising any Jervis v Harris clause that exists

   1. Express right to do this in the lease, will not be implied

7. Specific performance - will only be made against a tenant in exceptional circumstances

8. No!! - must be an express right to forfeit reserved by the LL

9. Waives this requirement

10. All arrears and costs are paid

    1. No ability for the tenant to apply for relief

11. A covenant other than the covenant to pay rent