UNI > !!!!!!!! land pt 2 > Flashcards

!!!!!!!! land pt 2 Flashcards

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1
Q

Covenants- step 1

A
  • who is the covenantor and the covenantee?
  • which one is the burdened land and which is benefitted?
  • mention covenants are enforceable by contract
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2
Q

Cov running of the benefit- common law

A
  • 4 conditions
  • must touch and concern the land- Smith and Snipes Hall Farm
  • must be an intention that the benefit should run
  • (express intention- “successors in title”, implied intention- s78 LPA)
  • at the time of the covenant the covenantee must have held a legal estate in the land
  • the person claiming the covenant must derive the title from under the original covenantee
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3
Q

smith and snipes hall farm

A

must touch and concern the land

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4
Q

Cov running of the benefit- equity

A
  • express annexation - needs to say “for the benefit of named land”- rogers v hosegood
  • implied annexation - mention but dont use
  • statutory annexation- federated homes case
  • express assignment- benefit can be assigned each time the dominant tenement is sold
  • by scheme of assignment
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5
Q

federated homes case

A
  • lawyer argued s78 LPA had the effect of automatically annexing the benefit to land IF
  • Cov touches and concerns the land
  • land must be identifiable- crest v Nicholson
  • must be no contrary intention- roake v chadha
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6
Q

crest v nicholson

A

land must be identifiable

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7
Q

roake v chadha

A

must be no contrary intention

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8
Q

running of the burden- common law

A
  • the burden cannot pass to successors- austerberry v corp of oldham
  • 3 devices have evolved and can be used in certain circs
  • leasing instead of selling freehold (relying on enforceability of covs between landlord and tenant)
  • by a chain of indemnity contracts (always relevant if there is a pos Cov)
  • doctrine of mutual benefit and burden (Halsall v Brizell)
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9
Q

austerberry v corp of oldham

A

burden cannot pass to successors

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10
Q

halsall v brizell

A

someone who wishes to take advantage of a service must comply with corresponding obligation- doctrine of mutual benefit and burden

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11
Q

running of the burden- equity

A
  • tulk v moxhay- 4 requirements
  • Cov must be RESTRICTIVE in substance
  • covenantee must at the time of the creation of the covenant have owned land for protection of which the Cov was made- London v Allen
  • burden of the Cov must have been INTENDED to run with the covenantors land (s79 permits the parties to exclude the effect of this section by expressing contrary intention)
  • owner of the servient tenement must have NOTICE of the cov for it to bind him
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12
Q

London v Allen

A

covenantee must at the time of the creation of the Cov have owned land for protection of which the Cov is made

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13
Q

Gafford v graham

A

inconsistent usage discharges the restrictive Cov

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14
Q

releasing/ discharging restrictive covs

A
  • unity of seisin (if the benefitted and burdened land is owned by one person, the covs are extinguished)
  • inconsistent usage (gafford v graham)
  • deed of release
  • discharge by the lands chamber of upper tribunals (s84 LPA- applies to restrictive only)
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15
Q

WHAT TO MENTION

A

Briefly consider the position at common law but show awareness that as the question requires discussion of the running of the burden in equity it will be necessary to “match” this by discussing running of the benefit in equity as well.

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16
Q

what is an easement?

A

a right benefitting a piece of land (dominant tenement) that is enjoyed over land owned by someone else (servient tenement)

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17
Q

is it a legal easement?

A

s1(2) LPA 1925
- is capable of subsisting at law (legal interest)
- to be legal it must be created—
- by deed (expressly or impliedly)
- and for an interest equivalent to freehold or leasehold

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18
Q

is the right capable of existing as an easement?

A
  • re ellenborough park
  • 4 criteria
  • there must be a dominant and servient tenement (peacock v custins)
  • the easement must accommodate the dominant tenement (Pugh v savage)
  • dom and serv tenements must not be owned and occupied by the same person
  • the easement must be capable of forming the subject matter of the grant (must be capable of being granted by deed) —- 3 main requirements for this
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19
Q

peacock v custins

A

must be a dominant and servient tenement

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20
Q

Pugh v savage

A

easement must accommodate the dominant tenement

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21
Q

3 main requirement for an easement to be capable of being granted by deed

A
  • right claimed must be sufficiently definite
  • there must be a capable grantor and grantee (mental cap/age)
  • the right must be within the general nature of rights capable of being granted as easements (4 sub criteria for that)
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22
Q

sub criteria to determine whether the right is capable of being granted as an easement

A
  • an easement cannot impose a duty (regis prop v redman)
  • cannot involve taking away part of the land (except water)- race v ward
  • only neg easements recognised at law are light, air and support
  • cannot give exclusive, joint, or substantially permanent possession of the servient land (Batchelor v marlow, wright v macadam, grigsby v Melville)
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23
Q

regis prop v redman

A

an easement cannot impose a duty

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24
Q

race v ward

A

cannot involve taking away part of the land (Except water)

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25
batchelor v marlow
- car parked from 8-6:30, mon to fri - left appellant with no reasonable enjoyment of land - not an easement
26
wright v macadam
- store coal in shed- easement
27
grigsby v Melville
cellar under claimants home belonged to him not defendant- the entrance was in the defendants home but because it was under the claimants land, that had been sold to him as well so defendant couldnt use it
28
express reservation- easement
- by reservation in the conveyance on sale of the land owned by the seller (land sold being the servient and land retained being the dominant)
29
express grant- easement
- or by deed granting the right to the dominant owner and their successors in title
30
implied reservation- easement
- no easement will be implied in favour of the grantor- must do it expressly if they wish to reserve any easements - UNLESS - necessity- sweet v sumner - common intention
31
sweet v sumner
implied in favour of seller if they have sold the land surrounding their house and the right of way is necessary to get to their land
32
implied grant- easement
3 circs - necessity/common intention (Wong v Beaumont) - s62 LPA 25 (use when there is a Landlord and tenant- meant to be a word saving provision because existing easements transfer automatically- wright v macadam) - Wheeldon v burrows (use when there is a quasi easement- sale of part of the land)- 3 conditions
33
wong v Beaumont
To decide whether or not the easement is necessary, the courts will examine the intentions of the parties at the date of the purported grant
34
wright v macadam
conditions for s62 to apply - must be a conveyance - cant be owned and occupied by same person - capable of being an easement
35
Wheeldon v burrows
3 conditions - continuous (reasonable habitual enjoyment) and apparent (common sense) - necessary for reasonable enjoyment (inconvenient not to have it) - in use at the time of sale (reasonably proximate time scale before sale)
36
presumed grant (prescription)- easement
- need 20+ years of of use - needs to be as of right (without force, without secrecy and without permission) - arises with prescription act (court needs to order it)
37
unregistered title- 3 types of equitable interests
- registrable as land charges (general equitable charge (mortgage), restrictive covs post 25, equitable easements post 25, estate contracts (freehold sale, grant of a lease and mortgage) - overreachable (equitable interests of a beneficiary under a trust of land (express or implied), capital money must be paid to more than 2 people to do this, s27(2) LPA) - subject to doctrine of notice (overreachable interests that haven't been overreached, restrictive covs pre 25, equitable easements pre 25)
38
registrable as land charges- unregistered title
classes of land charges - C3 (equitable charge) - if not registered they are void against a purchaser for value of any interest in the land charged - C4 (estate contracts) - D2 (restrictive covs post 25) - D3 (equitable easements post 25) - if not registered they are void against a purchaser for money/moneys worth of a legal estate in the land charged - in either case the purchasers knowledge is immaterial S199(1)
39
Midland bank trust v green
- farmer granted his son an option to buy the farm at a low price - son failed to register this as a class C4 land charge - farmer and son fell out - farmer sold wife the farm to defeat the option - wife knew of the sons offer - held, wife took free from the option because it was void against a purchaser for money/moneys worth of a legal estate - irrelevant that she knew of the option
40
unregistered land- registrable as land charge- method of search
- purchaser must search against the names of all estate owners since 1925, these names will be on the title deeds - search has 2 functions- protection and discovery - oak cooperative v blackburn
41
oak cooperative v blackburn
- owners name- Francis David Blackburn - land registered under- Frank David Blackburn - oak searched for- Francis Davis Blackburn - registration under a fair approximation of a name is effective against someone who doesnt search/searches wrong name
42
overreachable interests
- if the buyer of the house has paid 2 trustees then they have overreached and so the original owner of the interest cannot enforce it against the buyer - however if it hasn't been overreached go to the doctrine of notice to decide whether the original interest is binding on the buyer
43
doctrine of notice
- applies to interests of a beneficiary in a trust of land with unregistered title - lloyds bank v rosset
44
lloyds bank v rosset
- if someone contributes to monthly mortgage payments they will have an implied trust
45
DoN
equitable interests are enforceable against anyone except: - bona fide (good faith) - purchaser (any person who acquires an interest in the land otherwise than by operation of law, eg mortgagees and lessees (s205(1)(xxi)) - for value (money- if no value given, the purchaser is a volunteer) - of the legal estate (freehold/leasehold/legal rights over another person land- if only an equitable interest is acquired then any prior equitable interests will prevail) - without notice of the equitable interest
46
s199(1)- codified DoN
- actual (purchaser actually knows of interest) - constructive (P deemed to have notice of all matters which they would have discovered if they made reasonable and prudent inquiries)- hunt v luck - imputed (if Ps solicitor acquires actual or constructive notice while acting for them, this notice is imputed to the purchaser)- kingsnorth v tizard
47
hunt v luck
before completion an inspection of the land is necessary
48
kingsnorth v tizard
occupation doesnt have to be continuous or uninterrupted - mr t lived in the house - mrs t slept elsewhere but came back everyday to look after kids and also had an equitable interest - surveyor failed to make prudent and reasonable inquiries about Mrs T so K was fixed with notice of her interest
49
registered title- 3 categories in the title deeds
1. 1- Property – What is the property being registered? 2. 2- Proprietorship – Who owns the property? 3. 3- Charges – What are the burdens that negatively impact the title
50
registered title- 3 categories the estates and interests appear in on the register
- registrable disposition (need to mention which of the registers it would go on) - s27 LRA 2002 - the grant of a legal mortgage - any express grant of a legal interest as defined in s1(2) LPA 25 (legal easement) - any grant of a lease for more than 7 years out of a registered title - any transfer of a registered estate - interests requiring protection on the register - s32/s40 LRA 2002- restrictive covs - overriding interests - schedule 3 para 2- - equitable lease, - easements if not expressly granted - lease for less than 7 years (it won't be on the register of title so need to do a land inspection etc hunt v luck) - an interest of a person in actual occupation in relation to the land of which that person is in occupation
51
overriding interests
provisions - applies to legal easements or profit a prendre (the right to take something from someones land) EXCEPT those at the time of the disposition: - are not within the actual knowledge of the disponee - would not have been obvious on a reasonably careful inspection of the land - and cannot be shown to have been exercising in the period of one year ending with the day of the disposition
52
strand securities
- need both interest and occupation to have an overriding interest in land - occupation (need some degree of permanence and continuity, look at the purpose of the lease, if its a garage you dont need to use it all the time just enough)
53
city of London v flegg
need for physical presence to have overriding interest
54
link lending v bustard
in the absence of physical presence, a continuing intention to return is needed
55
chhokar v chhokar
temporary absences such as holidays or spells in hospital doesnt destroy actual occupation
56
compulsory first registration of title (registered title)
s4 LRA 2002- lists trigger events
57
failure to register (registered title)
- transferee of the relevant estate is under a duty to apply for first registration of the estate during the period for registration- s6 LRA 2002 - normally 2 months from the trigger event- if the application isn't made within this period the transfer is void
58
difference between a license and a lease
- lease is a proprietary interest and can bind a future purchaser of the freehold estate - lease can be assigned - licence is a personal right and can only bind the original parties - licence cant be assigned
59
clear channel v Manchester City council
- c thought it was a tenancy because they'd marked out areas for their advertising displays - was a licence not a lease because no exclusive possession
60
crago v Julian
- confirms assignment needs a deed
61
short leases requirements
- 3 years or less - takes effect in possession - best rent reasonably obtainable (market rent) - no fine is taken (no lump sum paid)
62
how could an equitable lease arise
- parties have entered into an agreement for one but haven't granted one by deed - parties attempted to create a legal lease but haven't complied with one or more formalities - welsh v Lonsdale
63
welsh v Lonsdale
if contractual formalities have been satisfied they may seek specific performance with will result in the formal execution of a legal lease
64
disadvantages of the doctrine in welsh v Lonsdale
- specific performance is a discretionary remedy - won't grant it if - undue delay on claimants part - remedy would cause undue hardship on d - c doesnt come with clean hands
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