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103 Cards in this Set
- Front
- Back
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Restrictive covenant definition |
A promise made by deed forbidding the commission of a certain act |
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Easement definition 1) 2) |
1) A right enjoyed by the owner of land over land of another such as a right of way 2) Must exist for the accommodation or better enjoyment of the land to which it is annexed else it is a licence |
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Dominant tenement definition |
The land owned by the possessor of the easement |
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Servient tenement definition |
The land over which the right is enjoyed |
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Mortgage/charge definition 1) 2) |
1) Provides security over land for a debt 2) If debt is not repaid it can be recovered from the sale of the land subject to the charge |
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Prima Facie definition 1) 2) |
1) based on first impression 2) accepted as correct until proven otherwise |
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Ownership Interest vs Mortgage charge Williams & Glyn's Bank v Boland 1) 2) 3) 4) |
1) W financial contribution to purchase price conferred an ownership interest 2) She was in "actual occupation" - s70(1)(g) LRA 1925 3) Held to be an "overriding interest" (LRA)- taking priority over proposed legal charge 4) Hodgson v Marks applied |
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Estate definition |
A right to the exclusive use of land for a period of time |
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Fee simple estate 1) 2) 3) |
1)Lasts until the owner dies without a will or an heir 2) as long as there heirs or there is a will the estate continues 3) no restriction on who can inherit |
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Fee tail |
can be inherited by specified descendants only |
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Life estate 1) 2) |
1)Ownership for duration of your life or someone else's life 2) no inheritance |
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Escheat definition |
The reversion of land to the Lord of the fee or the Crown on failure of heirs of the owner or on his outlawry |
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Seisin definition |
Possession of land by freehold |
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Asher v Whitlock 1) 2) |
1) An earlier title to land can be extinguished if it is not established within the statutory time limit 2) An earlier title that has been established will take priority over a later title |
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Enforceability of legal interests |
Universally enforceable |
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Enforceability of equitable interests |
enforceable subject to the doctrine of notice |
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Doctrine of notice 1) 2) 3) |
1) a bona fide purchaser of a legal estate for value takes priority over any pre-existing equitable interest which is not registrable as a land charge 2)p/m much prove they are a bona fide purchaser of a legal estate for value without notice 3) does not apply to registered land |
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Bona Fide definition |
p/m must prove they acted in good faith in entering the transaction |
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Legal Estate definition |
includes the purchase of the freehold, a lease or charge by way of a legal mortgage |
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For value definition 1) 2) |
1)excludes gifts and conveyances for a nominal consideration 2) the consideration need not be market value (Midland Bank v Green) |
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Actual Notice definition |
where p/m was consciously aware of the existence of an equitable interest |
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Constructive Notice definition 1) 2) |
1) what p/m ought to be aware of or would have discovered by making reasonable inquiries (prudent purchaser test) 2) set out in s.199 (1) (ii) Law of Property Act 1925 |
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Example of Reasonable inquiry Hunt v Luck |
visiting the property and asking any occupants if they have an interest or a tenant to whom they pay their rent |
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Requirements of reasonable inquiry Williams & Glyn's Bank v Boland |
purchaser is required to make inquiries to all occupants even if their occupation is consistent with the title offered |
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Failure to inspect the property Lloyds Bank v Carrick |
Failure to make any inspection of the property at all will result in the p/m being fixed with constructive notice |
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Inadequate inspection Kingsworth Finance v Tizard |
An inadequate inspection may also result in being fixed with constructive notice |
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Imputed notice definition |
p/m deemed to know all that his agent knows or has constructive notice of under LPA 1925 |
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Inspection of Land Rule in Hunt v Luck |
where vendor isn't in occupation purchaser deemed to have notice of the interests of all persons who are in occupation |
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Where vendor is in occupation Traditional position 1) 2) |
1) A prudent purchaser would not have inquired into whether wife had any ownership interest 2) overruled in Kingsnorth Finance Co Ltd v Tizard |
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Changes brought about by 1925 legislation 1) 2) 3) 4) |
1) fee simple in possession became the only freehold estate capable of existing as a legal estate 2) legal fee simple in possession became indivisible 3) fragmentation now only possible in equity 4) where land held on trust was sold the equitable interests under the trust were detached(overreached) |
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Doctrine of overreaching |
Process by which equitable interests or charges in an estate are transferred from land to the purchase money |
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Universal enforceability |
Universal enforceability of legal interests applies to all legal ownership interests and all legal third party interests |
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Doctrine of notice applies to: |
All equitable ownership interests and all third party equitable interests |
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Conflict between equitable interests |
When there is a conflict between equitable interests the former prevails over the latter |
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The survival of equitable interests Rule in Wilkes v Spooner |
once a bona fide purchaser has defeated an equitable interest that interest will not be revived unless there has been fraud |
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Protection of third party interests registration |
the act of recording one's interest, giving the purchaser statutory notice and also a convenient means of discovery |
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Law of Property Act 1925 key provisions |
1) s1 (1) - legal estates 2) s1(2) - legal interests 3) s1(3) - equitable interests 4) s199 - restrictions on constructive notice |
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Conveyance definition 1) 2) |
1) An instrument (other than a will) that transfers land or 2) simply the transfer of land |
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State Bank of India v Sood |
Overreaching will take place irrespective of the payment of capital monies under a conveyance |
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Proposed methods of avoiding LCA 1972 s4 1) 2) 3) 4) |
1)actual notice of p - no 2) actual occupation of third party(LPA 1925 s14) - no 3) Estoppel based defences - yes in some cases 4) Independent interest enforceable against the purchaser - potentially |
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Actual notice of the purchaser LPA 1925 s199(1) Midlank Bank Trust Co v Green 1) 2) |
if interest is not registered p will not be prejudicially affected by notice of it 2) affirmed in Cole v Samuel Smith Old Brewery and Rochdale |
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Actual occupation of third party Lloyds Bank plc v Carrick 1) 2) 3) |
1) In unregistered land actual occupation does not protect an interest where it could have been registered 2) LPA 1925 s14 applies only to the prejudice in the LPA and not the LCA 1972 s4 3) Parliament could have changed this but decided not to |
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Estoppel Based arguments Ives Investment v High |
if a party makes a representation to another party which the second party relies on and if it would be unconscionable for the representor to resile from it he will be estopped from doing so |
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Principal registrable interests LCA 1972 s2 1) Class C (i) 2) Class C (iv) 3) Class D (ii) 4) Class D (iii) 5) Class F |
1) Class C (i) - puisine mortgage 2) Class C (iv) - Estate contract 3) Class D (ii) - Restricitve covenant 4) Class D (iii) - Equitable easement 5) Class F - Matrimonial or civil partnership home rights (Family Law Act 1996) |
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Puisine mortgage definition |
a second or subsequent mortgage of unregistered land of which the title deeds are retained by a first mortgagee |
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Estate contract 1) 2) 3) |
1) Contract for the sale of the legal fee simple 2) gives buyer an option to buy (no obligation) 3) First refusal should property be put up for sale |
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Limitation on registration of restrictive covenant/equitable easement 1) 2) |
1) Can only be registered if it was entered into after 1925 2) if not enforceability relies on the doctrine of notice |
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Matrimonial or Civil Partnership home rights Family Law Act 1996 1) 2) |
1) Confers statutory rights of occupation for a spouse who is not on the legal title of the property 2) these statutory occupation rights are seperate from any equitable rights |
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Residual interests 1) 2) 3) |
1) Governed by the doctrine of notice 2) includes commercial equitable interests expressly excluded from registration by statute or by courts 3) includes overreachable interests that are not overreached such as where p did not deal with at least 2 trustees |
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Title Deeds Conveyancing Summary 1) 2) 3) 4) |
1) Legal estate (lease) - Universal enforceability 2) Legal interest (easement) - Universal enforceability 3) Equitable family interests (under trust) - overreaching 4) Equitable commercial interests (estate contract) - Registration LCA 1972 5) Residuary equitable interest - Doctrine of notice |
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Registered Title Land Registration Act 1925 1) 2) 3) 4) 5) |
1) Elimination of reliance on title deeds and repeated investigation of the same title 2) Transactions made effective simply by alteration to the register 3) Should be clear to p whether or not seller is entitled to sell 4) p should be able to discover third party interests with ease 5) Registration of titles not land |
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Principles of the LRA 1925 Act Mirror principle 1) 2) |
1) register should reflect accurately the position regarding ownership of the land and the third party rights affecting 2) overriding interests present an exception |
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Insurance principle 1) 2) |
1) state provides a guarantee as to the accuracy of the register and will compensate any person who suffers loss as a result of errors 2) overriding interests provide an exception |
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Curtain principle 1) 2) |
1) p should be bale to take what appears on the register for face value 2) existence of trust and trustees should be on register but specifics of trust is irrelevant |
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2002 Act Steps in method of transfer 1) 2) 3) |
1) Contract 2) Completion 3) Registration |
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Option of e-conveyancing 1) 2) 3) |
1) proposed shift from registration of title to title by registration 2) nothing of legal effect to proceed registration 3) concerns relating to security |
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Components of individual register cycle 1) 2) 3) |
1) Property register 2) Proprietorship register 3) Charges register |
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Property register includes 1) 2) 3) |
1) verbal description of the land 2) freehold or leasehold estate 3) which third party interests benefit the line |
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Proprietorship register 1) 2) 3) 4) 5) |
1) Class of title 2) Name + address of registered proprietor 3) date of registration 4) price paid/value declared 5) restrictions on dealings |
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Charges register |
any third party interest which adversely affects land |
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Classification of interests LRA 2002Registrable interests 1) 2) |
1) Legal fee simple 2) Legal lease for more than 7 years |
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Voluntary registration LRA 2002 s3 1) 2) |
1) Permitted even where it is not compulsory 2) Benefit of lower registration fee 3) can voluntarily register legal fee simple or legal lease for a term exceeding 7 years |
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Compulsory registration triggered by: 1) 2) 3) 4) 5) |
1) transfer of legal fee simple 2) transfer of legal lease > 7 years 3) Creation of legal lease > 7 years 4) Creation of reversion lease 5) Creation of protected first legal mortgage of fee simple/ lease |
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Effect of trigger of compulsory registration 1) 2) |
1) transferee/p must apply for registration within 2 months (s6 LRA 2002) 2) if not he will not get the legal fee simple and will have to go through the process again and bear the cost (s7 LRA 2002) |
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Effect of first registration Sainsburys v Olympia Hones Ltd |
1) Registration overrides ownership rights preceding it- registration is conclusive |
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Backwards Step in conclusiveness of register Fitzwilliam v Richall Holdings Services Ltd 1) 2) |
1) Where register gives legal ownership to X when the true legal owner is in fact Y the effect of registration is that X is holding the property on trust for Y 2) s58(1) LRA 2002 transfers the legal title but equitable interest remains with the true owner |
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Class of title Absolute |
buyer could properly be advised by a competent professional adviser to accept |
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Class of title Qualified |
title has only been established for a limited period of time or is subject to certain reservations |
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Class of title Possessory 1) 2) |
1) Where applicant is in possession or in receipt of rents and there is no other title to give 2) or where there are no title deeds to prove ownership or they have been destoryed |
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Class of title Good leasehold |
Where registrar is satisfied as to the title of the leaseholder only |
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First registration and enforceability of third party interests 1) 2) 3) |
1)generally first registration does not affect their enforceability 2) any disputes should have been dealt with already under principles of unregistered land 3) Interests that were enforceable under unregistered land will continue to be so following first registration |
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Actual occupation in registered land vs unregistered land |
Actual occupation can protect an interest in registered land but not in unregistered land |
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Notices 1) 2) 3) 4) 5) |
1) appear on charges register 2) required form of entry for commercial equitable interests 3) interest under a trust cannot be recorded through these means 4) can be agreed or unilateral 5) does not guarantee validity of interst (s32(3) LRA 2002) |
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Restrictions 1) 2) |
1) appear on proprietorship register 2) may be used to ensure interests under trust are overreached |
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Basic priority rule LRA s28 1) 2) |
1) Date of creation determines priority (LRA s28) 2) Major exception set out in s29 |
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Operation of LRA s29 1) 2) 3) 4) |
Must be 1) registable disposition 2) of registered title 3) for valuable consideration 4) that has been completed by registration |
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Operation of LRA s29 Halifax plc and Bank of Scotland v Popeck |
Must be valuable consideration |
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Deeds and their operation 1) 2) |
1) formal document which explicitly makes clear that is intended to be a deed, is signed by the person making it and is delivered as a deed 2) generally in order to transfer land or create an interest in it one must use a deed |
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benefit of doctrine of estates |
facilitates the division of certain incidents of ownership between different people at different times |
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Common law v equity Supreme Court of Judicature Act 1873 s25 Walsh v Lonsdale |
where there is a conflict with regard to the same matter equity will prevail |
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Equitable Remedies 1) 2) |
1) Specific Performance 2) Injunction |
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Trust |
Where land is conveyed to one person(trustee) for the use of another person(beneficiary) |
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Constructive Trust |
an implied trust imposed by equity as a response to inequitable conduct on the part of the holder of the legal title to the property |
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Creation of equitable rights 1) 2) 3) 4) |
1) Lack of formality 2) Possession of an equitable interest only 3) Time 4) Right only recognised in equity |
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Mere equities |
equitable rights which fall short of being a full equitable interest in land |
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Fraud Lyus v Prowsa Developments |
p who has acted fraudulently should not be able to defeat an unregistered interest |
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Requirement of fraud Lloyd v Dugdale |
Must show p made an undertaking that they would be bound by the interest for there to be fraud |
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Qualifying interests 1) + case 2) +case 3) +case 4) + case |
1)Only proprietary interests (National Provincial Bank v Ainsworth) 2) Rights to have transactions rectified/set aside (Thompson v Foy) 3) Equitable fee simple under trust (Hodgson v Marks) 4) Options to purchase (Webb v Pollmount) |
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dual status interests |
those interests that are overriding unregistered interests despite being capable of registration |
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Overreaching and Overriding Flegg |
Overreached interests are not qualifying interests |
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Actual Occupation in residential property Boland 1) 2) + case 3) |
1) shown by residence 2) no need for continued, uninterrupted residence (Chokar) 3) very large period of absence (e.g 14 months) = no AO (Stockholm Finance Ltd v Garden Holdings Inc) |
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Absolutist view of actual occupation |
question of pure fact, person may be in AO even where p could not discover this or their interest |
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Constitutional view |
p only bound by qualifying interest where there was an element of discoverability of the AO or the interest |
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Factors considered in determination of AO Link Lending v Bustard 1) 2) |
1) degree of permanence 2) continuity of presence 3) intentions and wishes of right holder 4) length of absence and reason 5) nature of the property 6) personal circumstances of the person concerned |
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Non residential actual occupation Kling v Keston Properties Ltd |
parking of a car in a lock up garage amounted to AO |
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AO where property cannot physically be occupied Lloyds Bank v Rosset |
presence of builders under supervision of the right holder will amount to AO |
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Inquiry Thompson v Foy 1) 2) 3) |
1) Where p asks claimant about interest and claimant fails to disclose where he would be reasonably expected to do so 2) p must ask claimant or his agent 3) must ask about interests in general |
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Exceptions/qualifications 1) 2) 3) 4) 5) |
1) para 2c 2) inquiry 3) occupation of part 4)occupation through an agent 5) occupation by minors |
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Occupation through agent 1) 2) |
1) person must be genuine agent 2) must be occupying in their own right (Strand Securities v Caswell) |
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Criticism of Sched 3 para 2(c) LRA 2002 |
seems to re-introduce the unfavourable concept of constructive notice to registered land |
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Obviousness of occupation Sched 3 para 2(c) LRA 2002 1) 2) 3) |
1) not whether the right is obvious but whether the fact of occupation is obvious 2) establishment of AO and determination of the obviousness of that occupation are separate questions 3) absolutist view of AO no longer representative of the law |
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Actual knowledge Sched 3 para 2(c)(ii) |
what is relevant is actual knowledge of the interest , not actual knowledge of the fact of occupation |
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Occupation in part Sched 1 para 2 Sched 3 para 2 Thompson v Foy |
right will only affect the part of the land which is occupied |
