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45 Cards in this Set
- Front
- Back
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What are Estates in Land?
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Estates in Land are rights granted by the monarch to Lords who then granted rights to others in EXCHANGE for services.
They Lords and others granted have a RIGHT OF OCCUPATION. These can be either freehold or leasehold. |
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What does FREEHOLD mean?
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A FEE SIMPLE ABSOLUTE IN POSSESSION.
~ 'a fee' indicates that it is inheritable ~ 'simple' indicates it is available to all heirs ~ 'absolute' indicates there are no conditions ~ 'in possession' indicates the holder has an immediate right to occupy the land/property or to collect and retain any rents. Freehold rights (now estates) are granted for an indeterminate period. |
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What does LEASEHOLD mean?
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Leashold is created out of freehold for a predetermined and definate period of time e.g. 99yrs.
TERM OF YEARS ABSOLUTE This covers the common residential periodic leaseholds e.g. monthly tenancies. Both these estates in land can exist at the same time. |
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What is a POSSESSORY title?
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This is where a piece of land has no obvious owner and appears to be abandoned.
Other people may begin to use the land. Over time they may enclose the land and treat it as their own. Later they may be able to claim the title of the land. The technical term is ADVERSE POSSESSION> |
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What is the rule for gaining possessory title on UNREGISTERED land?
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The individual using the land is a squatter BUT after 12 years minimum they may be able to obtain a P.T.
Claims are made at land registry. |
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What is the rule for gaining a possessory title when the land is REGISTERED?
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The Land Registration Act 2002 means that for obtaining a title adversly the squatter can be given the same title to the land that the dispossessed owner had rather than just a P.T.
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What is the registrar's proceedure for handling an application for P.T?
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He/she must notify the registered proprietor of the land, the proprietor of any registered charge or any other person on the register who has aksed to be informed.
These people then have 65 days to respond and serve a counter notice (NAP form) if appropropriate. They may then consent, object or serve a counter notice requiring the registrar to determine the squatters application. |
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What is Commonhold?
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This is a new way to own a freehold interest in a mixed use property, i.e block of flats or housing development.
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What types of property use a Commonhold interest?
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Either
~ multi let units within a single property i.e. flats ~ multi let units that are separate properties but within an extended land area used in common. i.e.several blocks of flats, housing development. Each unit holder owns the freehold (not a lease) of a unit. |
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When did Commonhold come into force and why?
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The provisions were contained in the Commonhold and Leasehold Reform Act 2002 starting on 27th Septemeber 2004!
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Why is Commonhold better than Leasehold?
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Both types of multi let unit are likely to be held as leasehold and a LL/Tenant relationship will exist, however leasehold units will suffer in the long term as the lease comes to an end - wasting asset. With commonhold, all units are freehold and share the freehold of the common areas.
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How is a Commonhold managed and regulated?
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By the Commonhold Association (CA). it is a limited company run according to its Memorandum and articles, which are prescribed by legislation and is governed by the Commonhold Community Statement (CCS)
The unit holders within the commonhold become members of the CA. |
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What does the Commonhold Community Statement define?
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~ the areas of the units and common parts
~ the percentages that each unit will contribute to the running costs ~ the duties annd obligations of the CA and each unit holder. |
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Who sets the Commonhold Assessment and why?
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The CA will set the Commonhold Assessment to estimate the overall cost of running the CA and the general operation of the building or land, its maintenance, repair and insurance.
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What are the advantages of Commonhold?
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~ the unit will be freehold and not loose value
~ the documentation for the commonhold is standardised and public and applies equally to all unit holders ~ the joint ownership and management of the CA means that all decisions are for the general benefit of all unit holders (democratic rules and proceedures are set out) |
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What are the disadvantages of Commonhold?
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~ self management requires time and input, perhaps some costs
~ many of the statutory rights and protections for leaseholders are not available to unit holders. |
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What are Quality of Titles?
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Quality of title refers to the grade of ownership that the seller of the land/property enjoys. There are 4 main titles:
~ absolute ~ good ~ qualified ~ possessory |
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What is an ABSOLUTE title?
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This is the strongest claim possible, proof of ownership has to be undisputed.
This is the most common and preferred type of title to purchase. |
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What is a GOOD title?
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This is the common title for leasehold properties. The freeholder is under no obligation to divulge his absolute title and sometimes the freeholder is unobtainable so this is the next best title.
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What is a QUALIFIED title?
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This is the title granted where there is lack of evidence or a defect in the title and providing absolute or good ownership is not possible. Someone may still choose to buy but only with an insurance policy to indemnify against any future problems.
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What is the process for an upgrade of title?
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Four people need to do this -
~ registered owner ~ person entitled to represent the owner i.e where a propriator has died ~ the propriator of any registered charge ~ a person interested in a regsitered estate that derives from the registered estate to be upgraded. |
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What other Interest in Land can exist?
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~ easements
~ rent charges ~ legal mortgage ~ charges imposed by land or statute ~ a right of entry annexed to a leasehold or legal rent charge The Law of Property Act 1925 rationalised the legislation so that there are only five legal interests in existance. |
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What is an EASEMENT?
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An easement is a right attaching to a specific piece of land, whereby another piece of land in a different ownership is utilised for its benefit.
Where the right is just a personnal agreement it will be seen as a licence. |
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What is the DOMINANT tenement?
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This describes the land that has the benefit of the easement.
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What is the SERVIANT tenement?
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This describes the land over which the easement is excersised.
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How may Easements be acquired?
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~ express reservation or grant
~ implied reservation or grant ~ presumed reservation or prescription |
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What does EXPRESS reservation or grant mean?
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Usually means that there is written evidence of the easement. As long as it is created by deed the easement will be legal. If not it will be an equitable easement.
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What does IMPLIED reservation or grant mean?
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This will arise when there is no written evidence in the conveyance of land or property BUT without the easement the land could not be used.
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What does PRESUMED reservation or PRESCRIPTION mean?
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Here the easement has been used for a long time (as with adverse possession) use of the easement must be without force, secrecy or permission. The time period to establish prescriptive rights is 20 years (same as rights of light).
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What is included in the definition of land?
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MAGPIE
M - mines and minerals (but coal and gas belong to the state and gold and silver belong to the crowm) A -airspace (but aircraft can fly over (Civil Aviation Act) as long as reasonable height above ground) G - ground, visible surface area includes river and lake beds, but water can only be extracted for limited use. P - plants and anything growing in the ground, includes trees, flowers, excludes crfops I - Incorporated rights attached to land, easements such as rights of way, right to light, also sporting rights. E - erections on land, buildings and other fixtures. |
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What is the definition of a fixture and a fitting?
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If the object is clearly part of the property it is known as a FIXTURE.
If the item is a separate item, which the seller might take away it is a FITTING. |
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TSB Bank plc v Botham [1996]
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This raises the question of fixtures and fittings, in a house which had been taken into possession because of mortgage arrears.
The first decision of the courts was later overturned on appeal, as it was surprising. Estate Agents are more comfortable with the result. |
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What are the essentials of a lease?
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There are 3 hallmarks of a lease:
~ Exclusive possession ~ At a rent ~ For a term A lease is a contractual document and so all remedies under contract law exist - damages, specific performance and injunction. |
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Where both parties had no intention of creating a legal relationship would a lease arise?
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No - there has to be willingness between both parties to create a legal relationship.
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What could other agreements to occupy a property come under?
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A licence.
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What are LEASE covenants?
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A covenant is a promise made between two parties or the recognition of obligations made to each other.
SO The covenants in leases cover promises made by the Landlord to the tenant and vise versa. |
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What would an example of a Landlords covenant be?
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LL covenants are usually quite limited - but....to allow the tenant to have quiet enjoyment of the property is an example.
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What would an example of Tenants covenants be?
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Pay rent, pay taxes, to repair, to only use the property for the stated purpose, not to part with possession of the property without permission.
The LL title itself may be subject to covenants and easements - therefore these would normally be passed to the tenant. |
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What are FREEHOLD covenants?
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A covenant is a promise made between two parties or the recognition of obligations made to each other.
SO Freehold covenants are promises by a buyer of land to a seller of land to do something or not to do something. |
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What is a POSITIVE covenant?
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This is the promise of a buyer of land TO DO something.
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What is a RESTRICTIVE covenant?
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This is the promise by the buyer of land to the seller of land NO TO DO something.
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Where do you find restrictive and positive freehold covenants?
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These will be contained within a DEED and enforced under contract law.
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What does the term 'run with the land' mean in relation to covenants?
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Generally speaking positive covenants do not transfer when land/property is sold again. i.e. they do not run with the land. For example if man A sold to B they may be a positive covenant in the contract, then man B sold to C, man A could not enforce the covenant against C.
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The rules about whether or not a RESTRICTIVe covenant will run with then land are different, explain...
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The following 5 criteria have to be present for the restrictive covenant to run with the land:
1. The covenant must the restictive in nature. 2. It must have the intention to benefit specific land retained by the land owner 3. It must have actual benefit, i.e, touch and concern the dominant land (here the dominant land must be retained by the seller) 4. It must be intended to burden the land in question 5. It must have notice - logged at the land registry. |
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What is the name and date of the main caseoutlining the rules in relation to restrictive covenants and whether they run with the land?
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Tulk v Moxhay [1848]
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