Land Law

what are corporeal hereditaments

tangible things - including those on surface of land, below the land and air above the land

what tangible rights are owned by Court

rights in coal, oil, natural gas limited by statute

gold, silver, buried treasure owned by Crown

rights of landowner and wild animals

do not own them but have right to hunt them

what are incorporeal hereditaments

intangible things - rights, easements, rents

what is a fixture

object affixed or annexed to land or building it becomes part of it

what is a fitting

object on land which does not become part of land but remains separate chattel

how does ownership of fixtures pass

automatically on sale of land

how does ownership of fittings pass

does not automatically pass on sale of land - only if listed in Fittings and Contents Form in contract for sale of land

what are the 2 tests used to determine whether something is a fixture

Degree of Annexation test

Purpose of annexation test

what is degree of annexation test

greater the degree of attachment to land, more likely the item to be fixture

if likely to destroy remaining structure - likely to be fixture

what is purpose of annexation test

whether owner intended to make item of permanent part of land

if results of degree of annexation and purpose of annexation tests conflict, purpose test prevails

who owns all the land in England

Crown owns all the land - people can own only an estate in land

what are the 2 legal estates

1. freehold estate - indefinite duration

2. leasehold estate - estate with fixed maximum duration

what are the 5 categories of legal interests which must be created by deed

1. mortgage

2. easement

3. rentcharge

4. profit a prendre

5. rights of entry

what is a mortgage

interest that secures a loan by giving th emortgage certain rights, including right to sell mortgaged property if mortgagor defaults on the loan

what is an easement

right to use one piece of land (servient tenement) to benefit another piece of land (dominant tenement)

what is rentcharge

interest in land requiring landowner to make periodic payment in respect of land to rentcharge owner

what is profits a prendre - appurtenant and gross

interest in alnd enabling someone to take osmething from land of another

PP appurtnenat: right attached to second parcel of land

PP in gross: right owned personally by profit holder - not attached to ownership of second parcel

what is right of entry

right reserved in leasehold or rentcharge ocntract - enabling holder to enter premises under certain circumstances

what happens when attempt to create legal interest fails because deed formalities not met

equitable interest may arise because equity more interested in fairness than formality

how may covenants be enforced

generally binding in contract law on parties to contract

but negative covenant only enforceable in equity against subsequent buyer if they have notice of the contract

when is person deemed to have equitable interest in land

from date of contract

what interest does person who has option to purchase land

equitable interest which can be protected by registration

what document is required to create and transfer most legal interests and estate in land

deed

how is a deed valid

in writing

state it is a deed

signed by grantor in presence of witness who attests signature

be delivered

what document is used to create equitable interests

contracts for land

only require writing signed by grantor

what is the purpose of proprietary estoppel

supply remedy when it would be unoconscionable to permit party to gain or lose proprietary rights because of lack fo formalities

what is required to prove proprietary estoppel

- assurance

- reasonable realince on assurance

- acted to detriment

- unconscionable to not grant remedy

what if title to land is unregistered

seller msut deduce title to buyer

- show good root title

- unbroken chain

- 15 years

is a buyer of land bound by legal or equitable interests

bound by legeal interests regardless of notice

not bound by equitable interests unless has notice

if land unregistered - how can person can identify any legal interests of third parties

examining property's deeds or physically inspecting property

how can equitable right or interest be enforceable against subsequent buyer of land

must be registered on Land Charges Register

constitutes actual notice

what is a C(i) puisne mortgage

legal mortgage not protected by deposit of the deed with the lender

what is a C(iii) general equitable charge registration

equitable mortgage

what is a C(iv) estate contract registration

registration of equitable rights created by contracts to purchase or options to purchase

what is a D(ii) registration

for restrictive covenant

what is a D(iii) registration

equitable easement registration

what is a F registration

used by non-owning spouse or civil partner to register their stauttory right o foccupation

can a beneficial interest under a trust be registered as a land charge?

no - governed by doctrine of notice

how can one claim adverse possession

actual, physical, exclusive possession of land with intention to possess it for at least 12 years

without permission of landowner

what are the following events involving unregistered land that will trigger application for first registration

conveyance on sale of freehold land

deed of gift

assent

grant of first lease for term exceeding 7 years

grant o legal mortgage

assignment on sale of lease having unexpired term exceeding 7 years

when must application for first registration be made

within 2 months of trigering event

what are the consequences for failing to register conveyance / lease / mortgage

failing to register conveyance: transfer of legal estate becomes void and legal estate reverts to seller

failing to register lease / mortgage: transferor ful legal title but holds bare trustee

costs remedying failure to register fall on party in default

what is given to registered estate on parcel of land and what will HMLR issue

unique title number

HMLR issue Title Information Document which includes Proprietorship Register

what is absolute freehold title

best class of title

registered proprietor takes legal estate together with all interests subsisting for benefit of that estate

what is possessory title

factual posession rather than documentary evidence

what is good leasehold title

class of title used when freehold title has not been produced to HMLR on application to register the lease

what is absolute leasehold title

class of title awarded when HMLR inspected all superior leasehold titles and freehold title

which following estates can be substantively registered - own title number and register

- estates in alnd

- rentcharges

- franchises

- profits a prendre in gross

what can party with interest in unregistered land do against first registratino with HMLR

register a caution

- if lodged but no itnerest claimed, owner can apply to Registrar for it to be cancelled

- if registered HMLR notify cautioner when application is made for registration and given specified period which to object to registration

for future dealings - which following dispositions do not operate until they are registered

- transfer of freehold estate

- grant of legal lease with more than 7 years to run

- express grant or reservation of legal easements and legal profits

- first / subsequent legal mortgage

how is the title information document divided into

3 registers

1. property register

2. proprietorship register

3. charges register

what is included in property register

property by address, legal estate held, rights in property

what is included in proprietorship register

restrictions on title, class of title, registered proprietors

what is included in charges register

details of encumbrances, easements, mortgages

what type of thirf party rights must be reigstered on title

legal mortgage of registere land and legal easement

what is notice to protect TP interests in registered land

notice relates to something that burdens land

-notice means interest is binding and failing to enter notice means interest will not bind purchaser for valuable consideration

what is 'restriction' to protect TP interests in registered land

prevent dealing with the land

which interests override first registiration (continue to excist aftter unregistered land registered)

1. legal lease granted for 7 years or less

2. implied legal easements

3. interest in land belonging to person in actual occupation

for registered disposal of the land - when will interest not be binding

if occupier failed to disclose occupation upon reasonable enquiry OR

occupation not obvious on reasonably careful inspection of land at time of disposition and buyer not have actual knwoeldge of interest

how does adverse possession work in registered land system

only acquires right to apply for registration after 10 years of possession

registered owner will be given chance to object

what does legal title give the holder

right to deal with property but doesn't convey benefit

what does equitable title give holder

benefit of the estate

what is joint tenancy

undivided, equal interest in whole of property

right of survivorship - cannot leave share by will

no more than 4 legal owners / joint tenants

what is tenancy in common

undivided interests euqally or own unequal shares

no right of survivorship

what is declaration of trust

agreement between co-owners as to beneficial interest to be held as tenants in common = conclusive

how can severance occur

- joint tenanat serving other JT with written notice

- treating share as separate

- mutual agreement of co-owners or course of dealings

- bankrtupcy of one of the joint tenants or by forfeiture

what is overreaching

buyer may take free of beneficiary's interest under trust through a legal process - automatic if purchase money is paid to 2 or more trustees

transfers beneficiaries' interests from land to funds used to buy the land

how to avoid failing to verreach

buyer can ensure second trustee is appointed

alternatively buyer may obtain written release from ebenficiary of their rights - having non-owning party sign contract prior to exchange

what if co-owners cannot agree to dispose of property

can allow courts to intervene - sections 14 and 15 of Trusts of Land. & Appointment of Trustees Act

what does sections 14 of Trusts of Land. & Appointment of Trustees Act provide

enables one co-owner to apply to the court for an order relating to trustee's duties

what does section 15 of Trusts of Land. & Appointment of Trustees Act provide

factors to consider for application for oder

- intentions of those who created the trust

- purposes for which property subject to trust is held and

- welfare of any minor who occupies

- interests of any secured creditor

what is the name for landlord's interest in land

"reversion" - assignable interest

what is an assignment

if tenant disposes of entire remaining interest in lease

what will assignee usually need to sign for an assignment

license to assign along with landlord - privity of contract between them so landlord can hold assignee liable for obligations in lease

what is a sublease / underlease

tenant disposes of less than entire remaining interest in lease

what are the essential characteristics of a lease

certainty of term - if uncertain then void

exclusive possession

formalities

what is a fixed term tenancy

A tenancy agreement for a specified period of time

what is a reversionary lease

A lease providing that the tenant is not to take possession until some date in the future.

what is a periodic tenancy

auto renew for another period until one gives notice

how to validly create legal lease

by deed

but lease for 3 years or fewer may be created orally if tenant takes possession + at best rent which can be reasonably obtained

how can lease be enforceable in equiy

if lease in writing incorporating all terms expressly agreed and signed by both parties

what express covenants do leases typically have

- covenant to pay rent

- covenant of quiet enjoyment

- covenant setting out landlord and tenant's duties to repair the premises

- covenant specifying the uses to which the tenant may put the premises

- covenant restricting alteration fo premises

what is a qualified alterations covenant

tenatn can make non structural alterations to lease premises with ocnsent of landlord

withholding of consent must be reasonable if alterations are improvements

what is an absolute bar on alterations

prohibits tenant from making strutural alterations to leased premises

withholding of consent need not be reasonable

what happens if tenant in wholly commercial premises fails to pay agreed rent

landlord has stautory right to take control of tenant's goods and sell them

landlord must provide 7 days notice of enforcement before bailiff or enforcement agent can enter the property

will forfeiture remedy be implied

no it will not - available only if expressly included

to forfeit - landlord must serve notice on tenant specifying breach - raosnabl etime to remedy and compensation payable to landlord because of breach

what happens if party to lease fails to carry out repairing obligations

may claim damages or obtain specific performance

what is a Jerris v Harris Clause

self help clause - landlord the right to enter premises and make a repair if the tenant breaches covenant of repair - landlord gives tenant notice of work to be done and tenant fails to comply

what is the difference between leases made after 1995 / before 1995 for right to assign the lease or to grant subleases

after 1995 - tenants are automatically released from covenants upon assignment of lease to a third party

- as condition of consenting to assignment, landlord can require an outgoing tenant to enter into an 'Authorised Gurantee Agreement'

before 1995 - original landlord and tenant automatically remain liable to each other under lease for entire lease period even after assignment

what happens if lease contains absolute covenant against assignment

tenant may not assign the lease

how is assignment of lease effective

by deed

how to terminate lease if for fixed term and no break clause

- tenant give up possession = surrender

- merger = landlord transfer reversion to tenant

what happens if head-lease ended by surrender

sub-lease ocntinues - subtenant becomes tenant of head landlord

what is the servient tenement

land over which right enjoyed and takes burden of right

what is profit a prendre

right to take somethign from land belonging to another

how is legal easement or profit effective

created by deed - fixed period / indefinite

how can easements be created

1. express grant or reservation

2. prescription

3. implied grant or reservation

how to create express legal easement in registered land - what registers does it appear on

easement must be registered

- benefit of legal easement appears as notice on Property Register of dominant tenanemtn

- burden appears as notice on Charges register of servient tenement

what is easement by prescirption

exercise of benefit without force or secrecy or permission from owner + exercise for 20 years without challenge