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LIL310 LAND LAW

Lecturer:

Rosalind Malcolm

Barrister and University Director in Law

r.malcolm@surrey.ac.uk

Credits: 20

Module Aims/Learning Outcomes

The aim of this module is to provide students with a full understanding of the

framework of land law so they can apply the theoretical principles to problems in

practice. It will show the development of land law from a historical context to anunderstanding of the importance of the subject in the twenty first century. It will aim

to demonstrate the meaning of estates and interests in land and the role of equity in

the development of land law. It will demonstrate the relative nature of rights in

relation to land-holding and the place for third party rights, their manner of creation

and protection.

On successful completion of this module the students will be able to:

have an over-view of the historical influences on the development and present roleof the law relating to real property

distinguish between real and personal property; legal and equitable interests;estates and interests; have a detailed knowledge of the 1925 real property legislation and

subsequent amending legislation

understand in detail the development of land law in the twenty first centuryfurther to the Land Registration Act 2002

understand the manner in which property rights are protected, created andtransferred in both registered and unregistered land

understand the nature and characteristics of third party rights in land understand the nature of trusts of land apply this knowledge of real property law to problem scenarios which

replicate real life

Asssessment Criteria

In order to achieve the threshold standard for the award of credits for this module, the

student must meet the criteria relating to the learning outcomes described above and

demonstrate the skills set out in the bench-marking statement for the course and in

particular:

Indicate understanding of the nature of real property Demonstrate an in-depth knowledge of real property law Show understanding of the doctrine of estates and tenures and the historical

development of modern land law

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Show understanding of the relative nature of property rights and theirtheoretical basis

Show understanding of trusts of land Demonstrate knowledge of:

Legal estates and equitable interests

Freehold and leasehold estatesCorporeal and incorporeal hereditaments

Third party rights (easements and profits a prendre; mortgages;

restrictive covenants

Licences

Understand the distinction between registered and unregistered land Understand the distinction between legal and equitable interests Show in-depth knowledge of the mechanisms for the transfer and creation of

estates and interests

Show in-depth knowledge of the manner of protecting estates and interests Establish that essential and background reading has been undertaken including

the use of relevant electronic data bases

The assessment strategy is designed to discover whether the student has: understood

the main principles of the law of equity and trusts; undertaken the required reading;

and developed a critical awareness of the role and scope of equitable remedies.

Methods of Teaching/Learning

The method of teaching is by lectures and tutorials. The lectures will introduce the

students to the subject areas and provide an overview to enable students to understandthe basic principles and underlying concepts. The tutorials will open out the subject,

consider key principles and apply the law to set problems. The students will be

provided with signposts to background and supplementary reading. During tutorials

students will be expected to have researched the topic area and to apply that research

to discuss given legal problems. Programs of guided reading (in particular, cases

discussed in the lectures) will be provided and students will be required to

demonstrate during tutorials that this has been undertaken. Students will be expected

to present logical arguments founded on legal authorities. The format of the tutorials

in land law will be to apply the law to case studies which reflect real life problems

and scenarios. Students will be expected to analyse and present logical arguments

founded on legal authorities. Their ability to challenge the propositions of others andto respond to challenges to their own will be monitored and developed. In tutorials

emphasis will be placed on the consideration of scenarios mirroring real life as

illustrated by existing case law. Special importance will be assigned to the students

ability to analyse legal issues and present realistic conclusions in language

comprehensible to lay clients. The teaching and learning strategy is designed to

stimulate private study using derivative and original sources, both paper based and

electronic and to develop an understanding and critical awareness of the essential

principles of land law.

Lecture topics

History: common law and equity

Estates and tenure

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Classification of property

Protection of property rights: registered and unregistered land

Acquiring title to land

Trusts of land

Co-ownership Leases

Easements

Restrictive covenants

Mortgages

Licences

Course structure

2 semesters:2 lectures per week

1 tutorial fortnightly starting in week 3

Course assessment

3 hour examination at the end of the second semester.

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READING LIST

Students will need to purchase one textbook from the list of student texts and any set

of property statutes.

Introductory and Background ReadingUnderstanding Property Law Murphy and Roberts (Sweet & Maxwell)

General Principles of Property Law Sukhinder Panesar (Longman)

The Idea of Property Underkuffler (2003, OUP)

Student Texts

Land Law: Core Text Gray & Gray (Butterworth)

Megarrys Manual of the Law of Real Property (Sweet & Maxwell)

Megarry & Wade, The Law of Real Property (Sweet & Maxwell)

Modern Land Law Thompson (2nd, ed. OUP)

Other textbooks

Commonhold Fetherstonhaugh, Peters and Sefton (2004, OUP)

Property Law Smith, R.J. (Longman Law Series)

Land Law Stevens, (Sweet & Maxwell Textbook Series)

A New Land Law Sparkes (1 84113 013 3) (OUP)

Green and Henderson on Land Law J.Harcup (Sweet & Maxwell)

Practical Approach to Land Law McKenzie and Phillips (OUP)

Land Law Dalton (Pitman)

Land Law Curzon (Pitman)

M & E handbook: Landlord and Tenant Male (Pitman)

Land Law Dixon (Cavendish)

Introduction to Land Law Perrins (Cavendish)

Law of Property Webb (Cavendish)

Landlord & Tenant Davey, (Sweet & Maxwell Textbook Series)

The Companion to Property Law and Practice Abbey & Richards (2004, OUP)

Private Property and Abuse of Rights in Victorian England Taggart (2002, OUP)

Landlord and Tenant Law in Practice Bar Manual (2004, OUP)

Statutory Nuisance: Law and Practice Malcolm & Pointing (2002, OUP)

A Practical Approach to Conveyancing Abbey & Richards (2003, OUP)

A Prctical Approach to Planning law Moore, (2002, OUP)

Blackstones Guide to the Land Registration Act 2002 Abbey & Richards (2002,OUP)

Law of Property Lawson & Rudden (2002, OUP)

Residential Leasehold Property Law Driscoll (2004, OUP)

Commercial Leases Wilkie and Luxton, (CLT)

A Practical Approach to Landlord & Tenant Garner & Frith (2004, OUP)

Landlord and Tenant Law Wilkie and Cole(Macmillan)

Local Authorities and Human Rights Drabble & Maurici (2004, OUP

Property Law and Human Rights Rook (2001, OUP)

Property and Justice Harris (2002, OUP)

Contemporary Property Law Jackson & Wilde (1999, Ashgate, Dartmouth)

The Reform of Property Law Jackson & Wilde (1997, Ashgate, Dartmouth)

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Collections of statutory and other material

Sourcebook on Land Law Goo (Cavendish)

Collection of Property Statutes (Blackstone, Butterworth or Sweet & Maxwell)

Land Law: Texts and Materials Gravells, Sweet & Maxwell)

A Casebook on Landlord and Tenant Law, Pawlowski and Brown, (Sweet &

Maxwell)

Reference books

Executorship and Administration DCosta (Cavendish)

Wills 2nd ed. Chatterton (Cavendish)

Commercial leases Tromans 2nd edition, (1996, Sweet & Maxwell)

Trusts of Land and Appointment of Trustees Act 1996, Kenny, (1997, Sweet &

Maxwell Legislation Handbook)

The Idea of Property in Law Penner (ISBN 0 19 829926 5) (OUP)

The Modern Law of Estoppel Cooke (isbn 0 19 826222 1) (OUP)

The Statutory Regulation of Business Tenancies Haley (ISBN 0 19 826898 X)

(OUP)Registered Conveyancing Ruoff and Roper

Emmet on Title

The Law of Charities Luxton (0 19 826783 5) (OUP) pub.- end 2000

Land Law: themes and perspectives (0 19 876455 3) (OUP)

Journals and Periodicals

Conveyancer

Modern Law Review

New Law Journal

Cambridge Law Journal

Estates Gazette

Estates Gazette Law Reports

Family Law Reports

Property and Compensation Reports

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LAND LAW LECTURE OUTLINE

Note: This outline contains a number of articles which illustrate various points of law. These

are only prescribed reading for students following the 30 credit LAW module who are

required to undertake additional assessments as part of their programme of study..

The Doctrine of Tenure

Norman Conquest 1066

Feudal pyramid

Different forms of tenure:

Tenure of chivalry

Spiritual tenure divine service and frankalmoign

Socage tenure petty sergeanty and common socage

Villein tenure

Subinfeudation

Substitution

Statute Quia Emptores 1290Tenures Abolition Act 1660

Law of Property Act 1922

The Doctrine of Estates

S.1(i) Law of Property Act 1925:

Fee simple absolute in possession

Determinable fees and conditional fees

Fee tail

Life estate

Estates in possession, remainder and in reversion

The Meaning of Land

Classification of Property

Property right / proprietary right

Right in rem binds the world

Right in personam personal obligation (privity of contract and Contracts (Rights of

Third Parties) Act 1999)

Real Property

Real (hereditament)

Personal property (chattels) choses in possession / choses in action

Chattels Real

Commonhold: Commonhold and Leasehold Reform Act 2002

See Clarke, DN The enactment of commonhold problems, principles and

perspectives [2002] 66 Conv 349.

What is land

LPA 1925, s.205(1)(ix)

Cuius est solem eius est usque ad coelum at ad inferos

(attributed to Accursius of Bologna in Glossa Ordinaria on Corpus Iuris (13th C.))

Quicquid plantatur solo, solo cedit

Duppa v Mayo (1669) fructus naturales

Bernstein v Skyviews Limited (1978)

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Pickering v Rudd (1815) (balloon passing through airspace not trespass)

But see Gifford v Dent [1926] (overhead sing was trespass)

Wansdsworth District Board of Works v United Telephone Co Ltd (1844)

Kelsen v Imperial Tobacco [1957]

Woollerton & Wilson Ltd v Richard Costain Ltd [1970]

Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Develpments)Ltd [1987]

Civil Aviation statutes

Rogers v Longsdon (1967)

Southern Centre of Theosophy v State of South Australia (1982)

Interpretation Act 1978, Schedule 1: land includes buildings or other structures, and

covered with water, and any estate, interest, easement, servitude or right in or over

land

See Birks, P Before we begin: five keys to land law in Bright and Dewar (eds) Land

Law, Themes and Perspectives (OUP 1998) pp 457 460.

Fixtures and fittingsThe contract: Taylor v Hamer [2002]

Phillips v Lamdin (1949)

Sinclair-Hill v Sothcott (1973)

Holland v Hodgson (1872)

Hulme v Brigham (1943)

Dean v Andrews (1985)

Berkley v Poulet (1976)

Elitestone v Morris (1997)

Vaudeville Electric Cinema v Muriset (1923)

Lyon & Co v London City & Midland Bank (1903)

Leigh v Taylor (1902)

Re Whaley (1908)

DEyncourt v Gregory (1866)

Botham v TSB Bank plc (1997) mortgaged property

Melluish v BMS (No 3 ) Ltd [1996] contracts to retain ownership of fixtures are

invalid

Landlord / tenant and fixtures: Mancetter Developments v Garmanson Ltd [1986];

Young v Dalgety plc [1987]

Ornamental fixtures: Spyer v Phillipson [1929]Agricultural fixtures: Agricultural Holdings Act 1986

See:

H.W.Wilkinson [1997] NLJ 1031; S.Bridge [1997] CLJ 498; H.Conway [1998] Conv

418

Boundaries

Plans

Lee v Barrey (1957) (10 feet divergence between transfer plan and land registry plan)

Hesketh v Willis Cruisers Ltd (1968) (unable to prevent boats mooring)

Procedure for fixing boundaries (Land Registration Rules 1925 r.276)

[Note: adverse possession claims and remedy of rectification)Presumptions:

Hedge and Ditch presumption (and Leylandii!) Wibberley Building Ltd v Insley

(1999) HL; Cutlan v Atwell (1994) CA; Falkingham v Farley (1991) CA

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Party walls - Prudential Assurance Co Ltd v Waterloo Real Estate Inc (1999)

(adverse possession of party wall by repair and inclusion in lease); Watson v Gray

(1880)

Land fronting water

Foreshore CrownPublic rights of navigation and fishing (Adair v National Trust (1997) right to take

lugworms, winkles and whelks)

Tidal and non-tidal rivers

Right to abstract water (Water Resources Act 1991)

Natural rights

Air

Water (Cambridge Water Co v Eastern Counties Leather plc (1994)),

Support (land - Morris v Redland Bricks Ltd (1967) lateral support where clay pit

dug; and Holbeck Hall Hotel Ltd v Scarborough BC (1997) ) (buildings (negative

easement) Dalton v Henry Angus & Co (1881)See Wu, Tang Hang The right of lateral support of buildings from adjoining land

[2002] Conv 237.

Mineral rights

The meek shall inherit the earth but not the mineral rights (John Paul Getty)

Gold and silver Crowns prerogative (Case of Mines (1567))

Coal: Coal Industry Act 1994

Oil and natural gas statutory rights (Petroleum (Production) Act 1934; Gas Act

1986)

Other minerals owned privately.

[Note profits a prendre]

Flora and fauna

Finders Title

Treasure Act 1996 (and note Treasure Act 1996: Code of Practice)

Ancient Law of Treasure Trove (trove if hidden)

AG for Duchy of Lancaster v GE Overton (1982)

N.E.Palmer (1981) 44 MLR 178; Marston and Ross [1997] 61 Conv 273 and [1998]

Conv. 252; P.H.Kenny [1996] Conv 321.

Coroners courts

Finders

True owner: Moffatt v Kazana (1969) (money in biscuit tin)

Discovery and possession

Armory v Delamirie (1722) (chimney sweep and jewel)

Moorhouse v Angus & Robertson (1981)

South Staffordshire Water Co v Sharman (1896)

London Corp v Appleyard (1963)

Things on land

Bridges v Hawkesworth (1851) (public part of shop)

Parker v British Airways Board (1982) (international departure lounge at Heathrow)Things in land

Waverley BC v Fletcher ([1996]

Elwes v Brigg Gas Co (1886) (prehistoric boat)

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South Staffordshire Water Co v Sharman [1896]

But Hannah v Peel (1945)

Freeholder v tenant

Legal and Equitable interestsLegal rights bind the whole world

Equitable rights bind everyone except the bona fide purchaser for value of the legal

estate without notice of the rights.

S1(1) (2), s7 Law of Property Act 1925

Deed, s.52 LPA 1925 and the Law of Property (Miscellaneous Provisions) Act 1989)

Fee simple absolute in possession

Term of years

s.205 LPA 1925

Easements

(Rentcharges)

Mortgages

Any similar charge

Right of entry

Equitable interests

Notice

Kingsnorth Trust Ltd v Tizard (1986)

Family and commercial interests

Registered and unregistered land

Doctrine of overreaching

Williams & Glyns Bank v Boland (1981)

City of London Building Society v Flegg (1988)

Protection of Property RightsPrivity of contract (Contracts (Rights of Third Parties) Act 1999

Does the interest attach to the land so as to bind third parties?

Meaning ofpurchaser: s.205(1)(xxi) LPA 1925

Legal interests bind the world; equitable interests bind everyone except equitys

darling (Pilcher v Rawlins [1872] 7 ChApp259; Wilkes v Spooner[1911] 2 KB 473)

Family (trusts of land) and commercial (typically created in return for value) equitable

interests

Unregistered land:

Land Charges Act 1972 (commercial equitable interests)

proof of good title (15 years);

Registration of land charges

What rights are capable of registration as a land charge?

What is the process of registration?

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What is the effect of registration and non-registration?

What is the process of search?

Classes of land charge

Classes A-F

Class C(I), (ii), (iii), (iv)

Class D(I), (ii), (iii).Class F Wroth v Tyler (1974)

Process of registration

s.3(1) LCA 1972

Diligent Finance Co Ltd v Alleyne [1972]

Oak Co-operative Building Society v Blackburn [1968]

Effect of registration / non-registration

s.198(1) and s. 199 LPA 1925; s.4 LCA 1972

Hollington Bros v Rhodes [1961]

Midland Bank Trust Co v Green [1981]

The Process of Search

Doctrine of overreaching (family equitable interests) (s.2 and s.27 LPA 1925)

Williams & Glyns Bank v Boland (1981)

City of London Building Society v Flegg (1988)

Birmingham Midshires Mortgage Services Ltd v Sabherwal and ors (1999) (CA)

(mothers equitable interest in the family home registered in the name of her 2 sons

was capable of being overreached by a charge on the home).

Note: Article 8 European Convention on Human Rights (Human Rights Act 1998) -

right to a home.

See Ferris, G and Battersby, G The general principles of overreaching and the

modern legislative reforms 1996-2002 (2003) 119 LQR 660.

Residual Interests

Family equitable interests in unregistered land protected by overreaching

Commercial equitable interests in unregistered land protected by registration as land

charges

Residual category: e.g. equitable easements and restrictive covenants created after 1

January 1926; equitable mortgages protected by the deposit of title deeds (before

effect of law of Property (Miscellaneous Provisions) Act 1989; covenants betweenlandlord and tenant in lease all subject to the equitable doctrine of notice.

ER Ives Investments v High [1967] 2 QB 379

Shiloh Spinners v Harding[1973] AC 691

Poster v Slough Estates [1968] 1 WLR 1515

Registered land

Land Registration Act 2002

Electronic conveyancing (Part 8 LRA 2002)

See Dixon, M The reform of property law and the LRA 2002: a risk assessment

[2003] 67 Conv 136.Capps, D Conveyancing in the 21st century: an outline of electronic conveyancing

and electronic signatures [2002] Conv 443.

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The Land Registration Act 2002 and the Law Commission Report: Transfer of

Land: Land Registration Report No 235; Land Registration for the Twenty first

century: A Consultative Document Law Com No 254 (published 2 September 1998)

and Law Com Report No 271, 2001.

Pre-LRA 2002 position and the new law comparedLand Certificate copies of entries on the register

The mirror image

Three kinds of interest: registered, minor and overriding.

Property Register

Proprietorship Register

Charges Register

Classes of title (ss. 9,10 LRA 2002):

freehold absolute

possessory freehold

qualified freeholdabsolute leasehold

good leasehold

possessory leasehold

Registered Estates

Registration of estates under LRA 2002, ss 11 and 12: fee simple absolute in

possession; term of years absolute (7 years or more)

How will overriding interests be affected by the LRA 2002?

Pre-LRA 2002 position under s.70(1) LRA 1925

See Jackson, N Title by registration and concealed overriding interests: the cause and

effect of antipathy to documentary proof (2003) 119 LQR 660.

s.3(xvi) LRA 1925 definition and Schedules 1,2 and 3 LRA 2002 compared

s.70(1)(a) LRA 1925 easements, etc

Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 (Rule 258)

Secretary of State for the Environment, etc v Baylis, and Defendant) (2000) - Thestatutory vesting of a public highway in the highway authority took effect as an

overriding interest under s.70(1)(a) Land Registration Act 1925. A vendor of land

which was subject to such a highway failed to give vacant possession of that land.

s.70(1)(f) LRA 1925 adverse possession

Limitation Act 1980 (s.75 LRA 1925)

Chowood Ltd v Lyall (No 2) [1930] 2 Ch 156

Effect of Land Registration Act 2002

s.70(1)(g) LRA 1925 rights / actual occupation / enquiry

Williams & Glyns Bank v Boland[1981] AC 487Rights subsisting in land:

Unpaid vendors lien -London & Cheshire Insurance Co v Laplagrene Property Co

Ltd[1971] EG 499

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Rights behind a bare trust Hodgson v Marks [1971] Ch 892

UCB Group Ltd v Hedworth CA (24/5/2002) (Lawtel: A beneficiary under a bare trust

of registered land who was in receipt of periodical payments made by the registered

proprietor under a tenancy by estoppel of the land granted by the beneficiary was not

in receipt of "rents" of lands within the meaning of s.70(1)(g) Land Registration Act

1925 and therefore was not entitled to an overriding interest.)Option to purchase land - Webb v Pollmount [1966] Ch 584

equitable lease: Grace Rymer Investments Ltd v Waite [1958] Ch 831

equitable rights of a licensee by way of proprietary estoppel Re Sharpe [1980] 1

WLR 219

rights to specific performance of a contract:Bridges v Mees [1957] Ch 475

right of a beneficiary behind a trust for sale not occupation by Family law Act 1986;

nor occupation by a licensee (Strand Securities Ltd v Caswell[1965] 1 AllER 820

Actual Occupation

Hodgson v Marks [1971]

BolandChokkar v Chokkar[1984] FLR 313

Abbey National v Cann [1990] 1 All ER 1085

Epps v Esso Petroleum Co Ltd[1973] 1 WLR 1071

Kling v Keston Properties Ltd[1985] 49 P & Cr 212

Date of actual occupation: Cann

Enquiry:Hodgson v Marks,BolandandFlegg

Caunce v Caunce

Paddington Building Society v Mendelsohn [1985] 50 P&CR 244

Lloyds Bank v Rossett

Notices and restrictions under LRA 2002 (Part 4)

Cases on the doctrine of notice and minor interests under the old law: (S. 20 (1) LRA

1925; s.59(6))

Peffer v Rigg[1977] 1 WLR 285

Lyus v Prowsa Development Ltd[1982]

Rectification of titleSchedule 4 LRA 2002

Kingsalton v Thames Water Developments [2002]

Indemnity

Sch 8 LRA 2002

ACQUIRING TITLE TO LAND

FormalitySubject to contract

Regalian Properties plc v London Dockland Development Corporation [1994]

Contracts in land: S.2 Law of Property (Miscellaneous Provisions) Act 1989

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Note exception for leases and resulting, implied and constructive trusts and for

contracts made at public auction s.2(5)

Writing United Bank of Kuwait v Habib [1996]

Spiro v Glencrown Properties [1991]

Record v Bell [1991]First Homes Ltd v Johnson [1995]

Commission for the New Towns v Cooper (Great Britain) Ltd [1995]

Hooper v Sherman [1994]

McAusland v Duncan Lawrie Ltd [1995]

Joscelyne v Nissen [1970]

Wright v Robert Leonard (developments ) [1994]

Conveyance: s.205(1)(ii) LPA 1925

Unregistered land completion / registered land registration

S.52 (1) LPA 1925 deed

S.54(2) LPA 1925 - leasesS.1 LP(MP)A 1989 deeds

Equitable interests s.53(1) and (2) LPA 1925

ADVERSE POSSESSION

Impact of Land Registration Act 2002 on adverse possession and registered land

Sections 96, 97 and 98 and Schedule 6, Land Registration Act 2002

Position of unregistered land

Limitation Act 1980, s.15(1)

RB Policies at Lloyds v Butler [1950]

Dundee Harbour Trustees v Dougall [1852]

Adverse Possession: Recent developments New Law Journal NLJ Vol.151

No.7002 Pages 1447-14485/10/2001 Howard Daley. (Examines the effect of the

Human Rights Act 1998 on adverse possession with reference to the decision in J A

Pye (Oxford) Land Ltd v Graham (2001). Discusses the requisite intention of the

occupier of land to claim the rights of squatters considered in Lambeth London

Borough Council v Jack Blackburn (2001). Considers the changes that will occur in

this field as a result of the Land Registration Bill 2001-2002, enacting the proposals

set out by the Law Commission in its reports, "Limitation of actions" and "Land

Registration for the Twenty-first Century: A conveyancing revolution". Cases

Lambeth London Borough Council v Jack Blackburn (2001)

J A Pye (Oxford) Ltd (2) J A Pye (Oxford) Land Ltd v Caroline Graham (2) Charles

Graeme Denton (2001) : Buckinghamshire County Council v Moran (1989) :

Ocean Estates Ltd v Norman Pinder (1969) 2 AC 19)

Bath & North East Somerset District Council v Nicolson (2002)

Post LRA 2002Schedule 6 LRA 2002

Impact of change

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TRUSTS OF LAND

Trusts of Land and Appointment of Trustees Act 1996 (effective from 1 January

1997)

Pre-1997 strict settlements (made under Settled Land Act 1925) preserved; no new

strict settlements can be created nor land added to existing settlements; all trusts forsale now trusts of land.

Doctrine of conversion abolished (except where trust for sale created by will where

the testator died before TLATA came into effect (1 January 1997)

Law Commission (No 181, 1989) - we consider that the present dual system of trusts

for sale and strict settlements is unnecessarily complex, ill-suited to the conditions of

modern property ownership, and liable to give rise to unforeseen conveyancing

complications

Hopkins (1996) Conv 411.

No duty but a power to sell or retain land

Some beneficiaries have statutory right to occupy land

Bare trust within regime and subject to overreaching

Creation of trusts for land

Express (inter vivos or will) or implied (conduct or statute)

Express where land conveyed to two or more people (s.34(2) LPA 1925 no more

than 4 legal owners)

Can impose obligation to get consent to sale from specified people (s.8(2) TLATA)

All statutory trusts, (eg intestacy (s.33(1) AEA 1925); co-ownership (ss. 34-36 LPA

1925) now trusts of land

Trustees (ss 4-5)

Powers - s.6(1) all the powers of an absolute owner

To buy land with trust money (s.6(3)

Consents (s.8(2)

No consent? Buyer of unregistered land gets good title (s.16(3) (registered land?)

Trustees may delegate powers to adult beneficiaries absolutely entitled

Duty to consult beneficiaries (s.11)

Trustees appointed by deed or by conveyance or by court or by beneficiaries (s.19

20)

Beneficiaries:

anyone with an interest in land (s.22(1))right to occupy property (s.12) purposes Barclay v Barclay [1970] 2 QB 677 and

Bull v Bull

s.13 exclusion from land or conditions; compensation (s.13(6))

Rodway v Landy [2001]

Sale, etc

Overreaching (s.27 LPA 1925) Birmingham Midshires v Saberwhal (1999)

Ferris and Battersby (Conv) (1998)

Ss 14 15

NB Cases decided under s.30 LPA 1925 (now replaced by ss 14/15):

Jones v Challenger (1961)Barclay v Barclay (1970)

Re Citro (Domenico) [1990]

Abbey National v Moss [1994]

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Post TLATA cases

Mortgage Corporation v Shaire; Mortgage Corp v Silkin (2000)

TSB Bank v Marshall (1998)

CO-OWNERSHIP

Joint tenancies and tenancies in common

Joint tenancies:

Equity leans against a joint tenancy

the law..loves not fractions of estates Holt CJ inFisher v Wigg[1700] Ld Raym

622

The right of survivorship

Who dies first? LPA 1925, s.184; AEA, s.46(3) as added by the Intestates Estates Act1925, s.1(4) and the Law reform (Succession) Act 1995.

Where a joint tenant kills a fellow joint tenant Re Crippen, Re K [1986] Ch 180;

Forfeiture Act 1982

Note effect of the Inheritance (Provision for Family and Dependants) Act 1975

The four unities:

Possession (Bull v Bull [1955]

Interest

Title

Time

Tenancies in common

undivided shares in land

No right of survivorship

Unity of possession

Co-ownership at law only a joint tenancy; a tenancy in common can only exist in

equity (ss 1(6) and 34(1) LPA 1925)

Unless the contrary can be expressed or implied there will be a joint tenancy

Express tenancies in common in equity

Implied tenancies in common in equity - presumptions:

Purchase of land in unequal shares (Bull v Bull)

Partnership property (Barton v Morris [1985] 1 WLR 1257Money lent on mortgage

Premises held for several individual business purposes (Malayan Credit

Limited v Jack Chia MPH [1986] AC 549 Privy Council)

Resulting Trusts

the trust of a legal estate, whether freehold.. or leasehold results to the man who

advances the purchase money Dyer v Dyer (1788) 2 Cox 92, 30 ER 42

Bull v Bull and Boland

Tinsley v Milligan [1992] Ch 310

Re Sharpe [1980] 1 WLR 219

Hussey v Palmer [1972] 1 WLR 1286Drake v Whipp [1996] 1 FLR 826

Stokes v Anderson [1991]

Midland v Cooke [1995] 4 All ER 562

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McHardy v Warren [1994] 2 FLR 338

Gissing v Gissing [1971] AC 886

Lloyds Bank v Rosset [1990] 2 WLR 867

Hazell v Hazell [1972] 1 WLR 301

Grant v Edwards

Burns v Burns [1983] Ch 317Passee v Passee [1988] 1 FLR 263

Constructive trusts

Drake v Whipp

Grant v Edwards [1986]

Eves v Eves [1975] 1 WLR 1338

Hammond v Mitchell [1991] 1 WLR 1127

Thomas v Fuller-Brown [1988] 1 FLR 237

Spence v Brown [1988] 18 Fam Law 291

Turton v Turton [1987] Ch 542

Lloyds Bank v Rosset [1991] 1 AC 107Gift presumed from relationship (advancement) Sekhon v Alissa [1989] 2 FLR 94

Proprietary estoppel

s.116 LRA 2002

Ramsden v Dyson [1866] LR 1 HL 129

Willmott v Barber [1880] 15 Ch D 96

Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133

ER Ives Investment Ltd v High [1967] 2 QB 379

Crabb v Arun District Council [1976] Ch 179

Wayling v Jones [1995] 69 P&CR 170

Gillett v Holt [2000]

Inwards v Baker [1965] 2 QB 29

Yaxley v Gotts [2000]

Dillwyn v Llewellyn [1862]

Pascoe v Turner [1979] 1 WLR 431

Gresley v Cooke [1980] 1 WLR 1306

Mollo v Mollo (1999)

Habermann v Koehler (1996)

Lowson v Coombs (1999)

Sledmore v Dalby (1996)

Bawden v Bawden (1997)Campbell v Griffin (2001)

Wayling v Jones (1993)

Jennings v Rice (2003)

Parker (9th Earl of Macclesfield) v Parker [2003]

Lim Teng Huan v Ang Swee Chuan [1992]

The element of detriment in proprietary estoppel R.Wells [2001] Conv 13

Estoppel: A Return to Principle Casenote [2001] Conv 78

A Rural Family at War R.Malcolm Estates Gazette No. 0108 / 24 February 2001 p.

162

Matrimonial property

Matrimonial Proceedings and Property Act 1970, s.37

Matrimonial Causes Act 1973

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Family Law Act 1996

Methods of severance

s.36(2) LPA 1925

Williams v Hensman [1861] 1 John and H 546

Written notice:Re Drapers Conveyance [1969]

Harris v Goddard [1983] 1 WLR 1203

Kinch v Bullard [1999]

Gore & Snell v Carpenter (1990)

Re 88 Berkeley Road NW9 ([971]

Destruction of the four unities

Mutual agreement:

Burgess v Rawnsley [1975] Ch 429

Nielson-Jones v Fedden [1975] Ch 222

Mutual course of dealing

BankruptcyRe Dennis [1996]

Re Palmer [1994]

Termination of co-ownership

Sale

Partition

Union in sole owner

Law of Property (Joint Tenants) Act 1964

LEASES

Essentials of a lease:

Term certain (Lace v Chantler (1944), Birrell v Carey (1989), Prudential Assurance

Co Ltd v London residuary Body (1992))

Lease to commence in the future (Brilliant v Michaels (1945), Swift v Macbean

(1942)

Perpetually renewable lease

Exclusive possession: Somma v Haxelhurst (1978),Street v Mountford (1984),

Dresden Estates v Collinson (1988),

Marchant v Charters (1977),

Otter v Norman (1989),

Hadjiloucas v Crean (1988),

Antoniades v Villiers (1988),

AG Securities v Vaughan (1988),

Stribling v Wickham (1989),

Mikeover v Brady (1989)

Exceptional circumstances: Norris v Checksfield (1992),

Errington v Errington (1952),Cobb v Lane (1952),

Ward v Warnke (1990),

Heslop v Burns (1974),

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Brooker v Palmer (1942),

Ogwr Borough Council v Dykes (1989),

Family Housing Association v Jones (1990)

Bruton v London & Quadrant Housing Trust [2000]

FormalitiesLegal lease: s.52(1) LPA 1925, s.52(2), s.54(2).

Contract for lease

Law of Property (Miscellaneous Provisions) Act 1989, s.2

Fixed term and periodic leases: Prudential Assurance v London Residuary Body

(1992), Centaploy v Matlodge (1974), Hammersmith and Fulham LBC v Monk

(1992), Hounslow LBC v Pilling (1993)

Tenancies at will

Tenancies at sufferance

Tenancies by estoppel

Legal and equitable leases: Parker v Taswell (1858), Coatsworth v Johnson (1886),

Warmington v Miller (1973)Rule in Walsh v Lonsdale (1882)

Differences between legal and equitable lease

EASEMENTS

Nature of an easement

Essentials of an easement:

1) dominant and servient tenement2) easement must accommodate the dominant tenement3) dominant and servient tenement must be owned and occupied by different

persons

4) the right must be capable of forming the subject matter of a grant:a) there must be a capable grantor and grantee

b) the right must be sufficiently definitec) the right must be within the general nature of rights capable of existing

as easements

Acquiring an easement

Express easements:

1)

statute2) grant3) reservation

Implied easements

1) necessity2) common intention3) the rule in Wheeldon v Burrows4) s.62 LPA 1925

Presumed easements

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RESTRICTIVE COVENANTS

Running of covenants with the land: s.56 LPA 1925 and Beswick v Beswick [1968]

AC 58

The benefit and the burden

At common law

The benefit:

1. covenant must touch and concern the land of covenantee; Smith and Snipes Hallfarm v River Douglas Catchment Board [1949

2. covenantee must own legal estate in land to be benefited when covenant made;Webb v Russell [1979]

3. assignee of covenantee must have legal estate; Miles v Easter [1933]4. original parties must have intended that covenant should run with covenantees

land. S.78(1) LPA 1925.

The burden:The burden does not pass at common law; Austerberry v Oldham Corporation [1885];

Rhone v Stephens [1994]

But consider possibility of:

Chain of covenants

Doctrine of mutual benefit and burden; Halsall v Brizell [1957]; ER Ives v

High [1967]

Estate rentcharge

Granting of a lease instead of fee simple

In Equity

The benefit:

1) Annexation: express, implied, statutory.Express annexation:

Newton Abbot Co-operative Society v Williamson & Treadgold[1952]

Rogers v Hosegood [1900]

Renals v Cowlishaw [1879]

Re Ballards Conveyance [1937]

Wrotham Park estates Co Ltd v Parkside Homes [1974]

Federated Homes Ltd v Mill Lodge Properties Ltd

Implied annexation: Marten v Flight Refuelling Ltd [1962]; Rogers v Hosegood

Statutory annexation:s.78 LPA 1925

Federated Homes

Roake v Chadha [1984]

2) AssignmentEquitable rules, Miles v Easter [1933]

3) Building scheme or scheme of developmentElliston v Reacher [1908]

Reid v Bickerstaff [1909]

Baxter v Four Oaks Properties Ltd [1965]Re Dolphins Conveyance [1970]

Re Wembley Park estate Co Ltd Transfer [1968]

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The Burden:

Tulk v Moxhay [1848]

1) Covenant negative in nature2) Dominant and servient tenement; LCC v Allen [1914]3) Covenant must touch and concern; Re Gadds Land Transfer [1966]4) Covenant must have been intended to run with covenantors land. S.79(1) LPA

1925

Enforceability

Wakeham v Wood [1982]

C & G Homes v S/S Health [1991]

Modification and discharge

s.84(2) LPA 1925

Re Bass Ltds Application [1973]

Gilbert v Spoor [1983]Re Edwards Application [1990]

Re Beechs Application [1990

Re Beechwood Homes Application [1992]

MORTGAGES

A mortgage is a transaction under which land or chattels are given as security for the

payment of a debt or the discharge of some other obligation

Santley v Wilde [1899] 2 Ch 474 per Lindley J

Mortgagor (borrower) and mortgagee (lender)

Note: protection of mortgages and the rule inDearle v Hall (1828) 3 Russ 1 for

priority in realtion to equitable mortgages of equitable interests.

History of mortgages: vivum vadium (live pledge) and mortuum vadium (dead

pledge)

Contractual redemption date

Equitable right to redeem

Foreclosure

Equity of redemption

The creation of mortgages:

Freehold mortgages at law: s.85 (1) LPA 1925 demise for term of years absolute or

s.87 by way of legal mortgage

Leasehold mortgages at law s.86

Equitable mortgages: agreement for a mortgage (Walsh v Lonsdale); informal deposit

of title deeds (Russel v Russel [1783] but see now Unted Bank of Kuwait plc v Sahib

[1996]); mortgage of an equitable interests (s.53(1) LPA 1925)

Registered land

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Protection of mortgagor and the equity of redemption

no clogs or fetters

Samuel v Jarrah Timber & Wood Paving Corporation Ltd [1904] AC 323

Seton v Slade [1802] 7 Ves 265

Vernon v Bethell [1762] 2 Eden 110

Reeve v Lisle [1902] AC 461Lewis v Frank Love [1961] 1 WLR 261

No postponement of the right to redeem

Fairclough v Swan Brewery Co Ltd [1912] AC 565

Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441

There must be no collateral advantages

Noakes v Rice [1902] AC 24

Bradley v Carritt [1903] AC 253

Biggs v Hoddinott [1898] 2 Ch 307

Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1914] AC 25

Restraint of trade

Esso Petroleum v Harpers Gargae (Stourport) [1968] AC 269

Alec Lobb v Total Oil [1985] 1 All ER 303

No oppressive or unconscionable terms

Knightsbridge Estates v Byrne

Cityland & Property (Holdings) v Dabrah [1968] Ch 166

Multiservice Bookbinding v Marden [1979] Ch 84

Consumer Credit Act 1974

Woodstead Finance Ltd v Petrou [1986]

Undue influence

Barclays Bank plc v OBrien [1993]

CIBC Mortgages plc v Pitt [1993] 4 All ER 433

Royal Bank of Scotland v Etridge (No 2) (HL)

Midland Bank v Massey [1995] 1 All ER 927

Midland Bank v Serter [1994] 26 HLR 612

Banco-Exterior Internacional v Mann [1995] 1 All ER 930

Bank Melli Iran v Samadi-Rad [1995] 2 FLR 362Trustee Savings Bank v Camfield [1995] 1 All ER 951

June Wright v (1) Cherrytree Finance Ltd (2) Darren Scott (3) Cora Scott (2001)

Undue Influence: A Review M.J.Draper [1999] Conv 176

Mortgagees rights

Personal remedy

Sale

Possession

Appointment of receiverForeclosure

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LAND LAW TUTORIALS

A selection of questions will be set from those listed below. Further questions may

be attempted by students for further practice.

{PRIVATE }TUTORIAL 1

1. What form of tenure exists at the present day?

2. What do we learn from knowledge of a person's estate in land?

3. What is the difference between an estate of freehold and an estate less than

freehold?

4. Explain the nature of the largest estate in land and summarise the rights this gives

to its owner.

5. What is the distinction between a fee simple in reversion and a fee simple in

remainder?

6. "The land itself is one thing and the estate in land is another. For an estate in the

land is a time in the land, or land for a time; and there are diversities of estates

which are no more than diversities of time; for he who has a fee simple in the land

has a time in the land without end; and he who has land in tail has time in the land

for as long as he has issue of his body; and he who has an estate in land for life has

no time in it longer than his life" (Walsingham's Case (1573) )

Discuss.

7. Explain how the common law and equity exist as separate sources of English law

and use examples from property law to illustrate your answer.

8. In cases of conflict between the rules of common law and equity, which will

prevail?

9. Who is equity's darling? Why is the person of importance?

10. Explain the meaning of the doctrine of notice.

11. Explain the differences between legal estates and interests in land and equitable

interests in land.

12. For what reasons might an interest in land be equitable rather than legal?

13. Distinguish between:

(a) realty and personalty

(b) proprietary rights and personal rights(c) estates and interests

(d) corporeal and incorporeal things

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14. Does the distinction between real property and personal property have anything to

do with the analytical terms in rem and in personam?

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15. What does section 1 of the Law of Property Act 1925 provide?

16. What is "land"?

TUTORIAL 2

17. What tests are applied to determine whether chattels have become fixtures?

18. Abel has entered into a contract for the sale of his house to Cain. He asks you

whether the following items (which are not mentioned in the contract of sale) are

to be included in the sale:

(a) a replica of the "Three Graces" which is standing in the garden;

(b) a chandelier;

(c) a fitted kitchen;

(d) adjustable bookshelves which fit into strips of metal screwed into the wall;

(e) an ornamental fireplace which is on hire purchase from the manufacturer.

19. Lord Blandish, the freehold owner of Brandy Towers, decided two years ago to

open his home and its grounds to the public. In order to make the premises ready,

he hired the firm of Dogget & Co. to construct a Visitors' Centre. One morning,

Noggs, an employee of the firm, had just entered the main driveway of Brandy

Towers while on his way to work, when he found a bag containing 500 in notes

lying next to the driveway. All attempts to trace the owner of the bag and contents

failed.

Shortly after this, Brandy Towers threw its gates open to the public. Victor, a

member of the public, while visiting the grounds with his dog, Columbus, found

Columbus digging in one of the flower beds. When Victor went to investigate, he

found that Columbus had unearthed a bronze bracelet. Victor handed the bracelet

to the receptionist at the Brandy Hall Visitors' Centre; but, despite the efforts of the

staff, the owner of the bracelet (which was discovered to have been made in 1932)

could not be found.

Lord Blandish had purchased Brandy Towers from Viscount Willow in 1980, who

had himself purchased it in 1930. Expert evidence suggests that the bracelet had

lain in the ground for at least 30 years.

Consider the relative strengths of the claims that may be made to the bag of notes

and the bracelet.

20. Consider the changes made by the Treasure Act 1996. Do you think they will be

effective in protecting and preserving antiquities?

TUTORIAL 3

21. Alfred is buying Cedric's fee simple estate in Blackacre (the title to which is

unregistered). Will he take it free from or subject to the following interests

previously created by Cedric and subsisting at the time of purchase:

(a) a legal right of way in favour of Barry;

(b) a seven year lease in favour of Denis granted last year;

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(c) a legal mortgage in favour of the Halifax Building Society.

If on completion the Friendly Building Society advance funds on the strength of an

equitable mortgage granted to them by Alfred will they take it subject to or free

from Denis' lease?

(N.B. section 52 and section 54(2) LPA 1925 in relation to the formalities required

for the creation of leases).

22. John holds the fee simple title to Blackacre (which is unregistered) bought in 1982,

partly with the aid of a loan from the Surrey Building Society secured by the grant

to them of a legal mortgage. Hazel, his girlfriend, contributed half the cost of the

initial deposit and the mortgage repayments were split between them. In 1984,

John decided to expand his business and with Hazel's full knowledge and consent

granted a further legal mortgage to the Berkshire Building Society to secure a large

loan. Later, however, things went badly wrong and John sunk further into debt.Unknown to Hazel he sought a further legal mortgage from the Hampshire

Building Society. Before this was granted they insisted that he appoint Dennis, a

friend, as co-trustee of the title to Blackacre before they would pay over the capital.

Eventually things became too much for John and he disappeared to Australia. All

three mortgagees now seek to enforce their security by selling the property.

Advise Hazel.

23. Percy became the registered proprietor of the fee simple title to Blackacre Farm in

January 2002. He wishes to know his rights with respect to :

(a) John, to whom the previous registered proprietor, Fred, had two years ago

given a 7 year lease of a barn on the farmland for storage purposes;

(b) Jane, the previous registered proprietor's girlfriend, who contributed with Fred

to the original purchase of the registered title;

(c) Ralph, a neighbouring landowner, who was granted written permission by

Fred three years ago to use a track across Blackacre Farm as a short cut from

one of his Ralph's fields to the main road;

(d) Giles, a tenant farmer of the property to whom Fred had, prior to the

transfer to Percy, given a written option to purchase the freehold title to the

farm.

24. Describe the main effects of the Land Registration Act 2002?

TUTORIAL 4

25. "In my opinion therefore, the law as to notice as it may affect purchasers ofunregistered land, whether contained in decided cases, or in a statute ... has no

application even by analogy to registered land." (Lord Wilberforce in Williams &

Glyn's Bank Ltd v Boland [1981] 1 AC 487)

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Explain and discuss this statement.

26. Discuss the extent to which cases decided on section 70(1)(g) of the LandRegistration Act 1925 will be relevant to the Land Registration Act 2002.

27. Alan is the registered proprietor of a row of three cottages - Nos. 2, 4 and 6

Cowslip Lane. His friend, Betty, telephones him to ask if she can rent No. 2 while

she is looking for somewhere to buy. Alan agrees and she moves in and starts

paying rent on a monthly basis from 1 January.

Alan decides to put No. 4 on the market and he receives two offers from Carl and

Damien. Carl makes the higher offer but wishes to defer completion of the contract

until he returns from a six month contract abroad. Carl suggests to Alan's estate

agent that the property should not be sold to Damien, that Carl will better any offer

from Damien by 5000 and will exchange contracts within a month with

completion to be deferred until his (Carl's) return from abroad. The estate agenttelephones Alan, who agrees to the proposal. The next day, however, Alan receives

a draft contract from Damien and Alan and Damien exchange contracts by the end

of that week.

Alan is short of money and he approaches his bank for a loan. The bank agrees to

lend him 10,000 but suggests that it should hold the deeds of No. 6 (which are

held in a safety deposit box at the bank) as security for the loan. Alan agrees. Alan

has now decided to emigrate and he agrees to sell Nos. 2 and 6 to Edith. Edith

moves into No. 2, but is surprised when Betty, who has been away on holiday, lets

herself into the cottage. Edith then receives a letter from the bank threatening to

foreclose on the mortgage on No. 6. Damien receives a letter from Carl, saying that

he has an agreement with Alan which takes precedence over Damien's agreement.

Advise Edith and Damien whether Betty, the bank and Carl have contracts which

are enforceable against them.

28. Examine the law relating to adverse possession under the LRA 1925 and the

LRA 2002. What are the key distinctions? In your view, will it be easier to

acquire title by adverse possession under the LRA 2002?

TUTORIAL 5

29. Consider the impact of the Trusts of Land and Appointment of Trustees Act 1996.

30. In 1993, A, B, C, D, E and F clubbed together to purchase a hectare of woodland

near their houses with the object of preventing the local hunt from using it and so

providing a sanctuary for foxes. In 1995 B died leaving a widow, W, who is a keen

follower of the hunt. E has recently retired and wishes to move to the south. He has

found that he will need the money from a sale of the woodland to finance his move. A,

C, D, and F are still keen to maintain the sanctuary and refuse to consider a sale, despite

having received a good offer from a local builder.

Advise E.

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TUTORIAL 6

31. Bob was the registered proprietor of the freehold estate in No 1 Pier Head. The

property was bought for 150,000 in 1990. Bob had little money at the time and so

he agreed with Colin (his father) that Colin would pay the 15000 deposit for the

property and that Bob would take a mortgage of 135,000. It was also agreed thatColin, who was elderly, would live at the property with Bob. From time to time

Colin helped Bob by paying instalments on the mortgage and paying the fuel bills.

In 1992, Bob married Amy and had the title to No 1 Pier Head transferred to their

joint names. In 1996 Bob and Amy took out a second mortgage on the property

and put the money into the business that they were running, which has since

collapsed. Amy and Bob are now seriously in arrears with repayments on both

mortgages.

Colin, who has only just heard about the mortgage, wants to know what his rights

are against the first and second mortgagees.

Advise Colin.

32. To what extent is it true to say that contractual licences have been elevated to the

status of proprietary rights?

33. Examine the effect of the decisions in Taylors Fashion Ltd v Liverpool Victoria

Trustee Co Ltd (1982) and Gillett v Holt (2000) on the doctrine of proprietary

estoppel.

TUTORIAL 7

34. Examine the implications of the Landlord and Tenant (Covenants) Act 1995 for

the assignment of covenants in leases.

35. In the absence of express covenants in a lease, what are the implied obligations of

the landlord?

36. (a) Tom agrees with Larry that he will rent Larry's flat for 1 year while Larry is

abroad. Tom also agrees that if Larry's daughter, Sue needs a room during this

period, Tom will allow her to use the spare bedroom. Tom and Larry bothsign an agreement described as a "Licence Agreement".

(b) Terry has a periodic tenancy of a house. His landlord, Lex, also owns the

neighbouring house which he lets to Jane. Jane has taken to holding Karoake

parties each weekend which go on all night and are preventing Terry from

sleeping.

Advise Terry of any remedies he may have as a tenant.

37. Lenny is the freehold owner of a restaurant. On 1st February 1995 he created a

15-year lease of this restaurant and Theodore became the first tenant under thatlease. The lease contained the following covenants (amongst others):

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- that the tenant would buy all the restaurants requirements for milk from

Lenny dairy (situated in the same town);

- that the tenant would build a new boundary wall at the rear of the back yard of

the restaurant.

Theodore assigned the lease to Agatha on 1st March 1996 without having first

built the wall. Agatha now wishes to buy all her milk from another (cheaper)

dairy and she does not wish to build the wall.

Advise Theodore and Agatha. Would your answer be any different if the lease

had been created on 1st February 1996 and the assignment to Agatha had taken

place on 1st February 1997?

TUTORIAL 8

38. In the context of the implied creation of easements what is the significance ofdiversity of occupation?

39. Contrast the respective roles ofWheeldon v Burrows and S. 62 LPA 1925.

40. What is the difference between a covenant and an easement?

41. Helen and Dot were neighbours. When Helen bought a car, she decided to build

a garage for it with access over a drive which ran in part over Dots land. Dot

readily consented to this, on condition that Helen paid a proportionate share of

the cost of surfacing and resurfacing the drive, and on condition that Helen

allowed Dot to use Helens garden shed for storing Dots collection of

archaeological bones. Dot has recently sold and conveyed her house to Joe, who

objects to the use of the drive by Helen.

Advise Helen.

42. Ron owned two adjoining farms, Greenlands and Whiteacre. He sold

Greenlands to Sid. Prior to the sale Ron had used a farm lane over Greenlands

to deliver milk to the pick-up point, and he had also used a water-pipe under

Whiteacre to water the cows in Greenlands. There was no other way to reach

the milk pick-up point from Whiteacre except by a 40 mile detour around amotorway. Greenlands has no other water supply except an intermittent spring

often dry for a few days at a time during the summer.

Advise Ron as to whether he may use the farm lane and whether Sid may use

the water-pipe.

43. Lionelis the freehold owner of a country estate, Gatsby Park, and lives there in

Gatsby House. In 2001 Lionel sold the old Toll House on the estate to Marian.

The toll House has access to the main road, but there has always been a track

leading from it across the rest of Gatsby Park to Dingley Dell, a nearby beauty

spot. Since 2001 the Toll House has needed frequent repairs, and Marian hasoften had to go on to the land retained by Lionel in order to carry these out.

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In 2002 Lionel granted an annual lease to Nancy of an old cottage on the estate.

At that time he said that Nancy could park her car on a piece of land behind

Gatsby House itself, and that she could store her garden tools and equipment in

an outbuilding also used by Lionel. In January 2003 Lionel renewed the

tenancy for a further year, but nothing was said about parking or use of the

outbuilding.

In March 2003 Lionel sold Gatsby Park to Olly, who has told Marian and Nancy

that in no circumstances are they to trespass on his land in future.

Advise Marian and Nancy.

TUTORIAL 9

44. Explain the significance of S.56 of the Law of Property Act 1925 to the

transmission of the benefit of a covenant.

45. Has the rule in Austerberry v Oldham Corporation (1885) 29 Ch D 750 stood

the test of time? In what circumstances can its effect be avoided?

46. For myself, I reject the narrowest interpretation of S.78, the supposed orthodox

view, which seems to me to fly in the face of the wording of the section.

(Brightman, L J inFederated Homes Ltd v Mill Lodge Properties Ltd[1980] 1

WLR 594).

What is the effect of Section 78 of the Law of Property Act 1925?

47. (a) The true position as I see it is that, even where a covenant is deemed to be

made with successors in title as S.78 requires, one still has to construe the

covenant as a whole to see whether the benefit of the covenant is annexed.

(Judge Paul Baker QC inRoake v Chadha, [1984] 1 WLR 40)

Explain and discuss this statement.

(b) In 1998 Austin purchased a house subject to registered title; in 1999 he sold

a small part of his garden to a neighbour, Dicey, and under the transfer

Dicey covenanted:

(i) that he would use the land solely for the purposes of a domestic

garden; and

(ii) that he would construct and maintain a fence on his side of the border

of the land being sold.

In respect of both covenants it was agreed that they were made with intent

that they may enure to the benefit of the vendor, his successors and assigns

and others claiming under him to all or any of the adjoining or adjacent

land. However, in respect of the first covenant, it was further agreed that

the covenant would not enure for the benefit of any owner or subsequent

purchaser of Austins land unless the benefit of the covenant was expresslyassigned.

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In 2000 Austin sold half of his remaining land to Bentham and the covenant

relating to the purposes of a domestic garden was expressly assigned.

However, in 2001, Bentham sold to Coke and on this occasion the covenant

was not expressly assigned. In 2003 Dicey sold to Eldon the small area of

land which he had purchased and informed Eldon in the strongest terms of

the existence of the covenants. Eldon is now using the land for the storageof scrap-metal and the fence has collapsed.

Advise Coke.

TUTORIAL 10

48. (a) A mortgage by legal charge is simpler in form and not less advantageous

from the point of view of the mortgagee, than a mortgage by demise.

Explain and comment.

(b) Harry has asked his brother Igor to lend him 5,000. They agree that Igoris to take as security the title deeds of Harrys house without any written

document, other than a receipt for the loan. Igor wishes to know whether

he can safely do this.

Advise him.

49. A mortgagee may offer the mortgaged property for sale as soon as he has lent

the mortgage money. He may then sell it to the first bidder without waiting for a

better offer.

To what extent is this a correct account of the legal position?

50. In 1998 Hops Brothers, a small brewery, lent 300,000 to Martin on security of

a legal mortgage of the Lord Eldon pub to which Martin was entitled for a

leasehold term having 40 years to run. The mortgage provided that Martin

should repay the loan with interest at 10% in 25 annual instalments, and that for

thirty years the Lord Eldon would sell only products of Hops Brothers, unless

they were 10 or more per cent less profitable than other beers. It was also

agreed that for thirty years Hops Brothers might use the car park of the Lord

Eldon for the overnight parking of their delivery vans.

Martin has unexpectedly inherited a sum in excess of 300,000 and he wishes to

redeem the mortgage and bring an end to all his obligations towards Hops

Brothers. Advise him.

51. Anne is a 19 year old student with little income apart from her student grant.

She owns a house which her parents gave to her worth about 100,000. Her

fianc, Paul, wishes to start a music career so she mortgages her house to

Scrooge Finance Company to secure 90,000 which she lent to Paul. At the

time she mortgaged the house she was suffering from bronchitis. She took no

independent advice but she mentioned her plans to her own bank manager who

said: Well done, nothing ventured, nothing gained. Scrooge Finance havetheir own account at the same branch of the bank.

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The loan was to be a short-term one for six months with interest at 42% payable

on the full sum loaned. Paul promised Anne that he would repay the loan, both

interest and capital, but he has now gone away.

Neither Paul nor Anne has paid any interest on the loan, nor repaid any of the

capital.

Anne has lost touch with Paul and the Scrooge Finance Company have now

taken court proceedings for possession and sale of the house.

Advise on Annes possible defences to the court claim.

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LAND LAW EXAMINATION PAPERS

SUMMER 2001

STUDENTS MAY TAKE ANY SET OF PROPERTY STATUTES INTO THE

EXAMINATION ROOM. THESE MAY BE HIGHLIGHTED BUT OTHERWISEUNANNOTATED.

ANSWER FOUR QUESTIONS

1. To what extent would you agree that the effect of the decision in Barclays Bankplc v OBrien [1994] has been to introduce the equitable doctrine of notice into the

law relating to mortgages?

2. Last week, Patrick completed the purchase of Manor Estate from Vera, theregistered proprietor. Patricks solicitor has yet to send the registration

documents to the Land Registry for registration. Patrick plans to build a housingestate on part of the land and convert the manor house into luxury flats. The

following matters have now come to Patricks attention.

(a)Nell, who lives in Dower Cottage, a neighbouring property, has told Patrickthat her father, the previous owner of Dower Cottage, entered into a restrictive

covenant with Vera under which both parties mutually agreed that no further

dwellings should be built on their land.

(b)Yesterday, Veras great-aunt, Aunt Sally, arrived at the manor house, claimingthat she had helped Vera buy the estate and that she was, therefore, entitled to

live there as her great-niece had not given her a share in the proceeds of sale.

(c)Patrick has now discovered Sydney who is living in what appeared to be adilapidated out-house. Sydney claims that he has been living there free for

many years and that Vera had no objection because she supported charities for

the homeless.

(d)Fred, a neighbouring farmer, regularly drives his Land Rover across a trackleading from his farm across Manor Estate to the local village. He has told

Patrick that he had an informal agreement with Vera entitling him to do this.

In return, Fred claims that he allowed Vera to build a garage whichencroached onto his land by 1 metre.

Advise Patrick of the extent to which he is bound by these interests.

3. Examine the impact of the Landlord and Tenant (Covenants) Act 1995. Explainthe extent to which it is successful in resolving the problems it was intended to

ameliorate.

4. Bill and his family live in a house owned by Godfrey, who had, for many years,employed Bill as his chauffeur. Godfrey had told Bill that he would inherit the

house when Godfrey died and that he was not to trouble himself about a lease orany other formal arrangement about the ownership of the house. They agreed that

Bill could live in the house rent-free provided he paid for all necessary repairs but

if he moved away he would lose any rights he had. Bill kept the house in an

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excellent condition and did, in fact, execute a number of improvements such as

double glazing and the installation of central heating. Godfrey was generous to

Bill and paid him a wage which was more than the national minimum wage.

Godfrey has now died and the executors of his estate have written to Bill telling

him that as he has no lease, he must move out of the house. Godfreys will makesno mention of the proposed gift of the house to Bill.

Advise Bill.

5. Amy, Beryl, Cyril, Dick and Ebenezer bought a freehold house in 1996 as theywere all studying at University together. Ebenezer, a child prodigy, was 17 at the

time. They agreed that they should own the house as joint tenants. The

following events have occurred.

(a) In 1999, Amy dropped out of University and moved away. She wrote to Berylasking whether she was interested in buying her out. Beryl did not reply.

(b)In 2000, Cyril decided that as he had not taken a gap year before going toUniversity he would take a year off from his studies. Sadly, he was killed

when cycling to the railway station to book his round-Europe railway ticket.

In anticipation of his travels, he had written a will in which he left all my

property to my sister, Jane.

(c) In the summer of 2001, Beryl, Dick and Ebenezer will finish their studies atUniversity. Beryl and Dick wish to sell the house as soon as they have all

finished their exams. Ebenezer wishes to carry on living there as he has

secured a job locally.

i) Advise Beryl and Dick whether they may insist that the house is sold.

ii) Explain how the above events affect the legal and equitable ownership of

the property.

iii) What difference would it make to your answer if the house was originally

conveyed to the parties as tenants in common?

6. Equity cannot compel an owner to comply with a positive covenant entered intoby his predecessors in title without flatly contradicting the common law rule that a

person cannot be made liable upon a contract unless he is a party to it.Enforcement of a positive covenant lies in contract; a positive covenant compels

an owner to exercise his rights. Enforcement of a negative covenant lies in

property: a negative covenant deprives the owner of a right over property.

(per Lord Templeman,Rhone v Stephens [1994])

Examine critically the distinction between positive and restrictive covenants.

7. Boris has just moved into the house he bought from Severus and has discoveredthat the following items, which he assumed were included in the sale, are missing:

(a)a water feature which formed the central focus of the garden which had beenlaid out by a well-known television presenter;(b)a microwave oven, dish-washer and built in hob; and,(c)an exercise bike which was bolted onto the cellar floor.

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Boris, while digging the garden, has also discovered a box buried under the stump

of a rotten tree containing a wad of fifty pound notes, a gold bracelet and a Roman

coin.

Advise Boris.

8. the category of servitudes and easements must alter and expand with the changesthat take place in the circumstances of mankind

(per Lord St Leonards,Dyce v Lady James Hay (1852))

To what extent would you consider this statement a reflection of the modern

judicial approach to the recognition of new easements?

9. Examine the defects in the law which the Trusts of Land and Appointment ofTrustees Act 1996 was designed to remove. Outline the main provisions of the

Act in respect of trusts of land.

Internal examiner: Rosalind Malcolm

External examiner: Professor P.Luxton

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DRAFT LAND LAW 2002

STUDENTS MAY TAKE ANY SET OF PROPERTY STATUTES INTO THE

EXAMINATION ROOM. THESE MAY BE HIGHLIGHTED BUT OTHERWISE

UNANNOTATED.

(a) Advise Ham, who has entered into a contract for the purchase of a farm from

Shem, on the ownership of the following items (which are not referred to in the

contract):

a metal box containing a gold ring and a number of coins which Ham has been

advised probably date from the late sixteenth century. Ham discovered the box

sticking out from the soil in a recently ploughed field;

the Aga cooker, the microwave and the built in refrigerator in the kitchen;

oak panelling in the dining room;

a complete collection of garden gnomes including Snow White which decorate the

elaborate ornamental garden pond. The garden ornaments have been cemented intoposition.

(b) The ornamental pond is fed by a natural stream which crosses the farm. Ham also

asks whether he is entitled to dam the stream so as to create an artificial lake.

Peregrine has recently purchased the freehold title of Cherrytree House from Tristram,

the former registered proprietor. Peregrine wishes to know how the following

matters affect his title to the land:

a covenant entered into in 1914 between the former owners of Cherrytree House and

the neighbouring property, Limetree Cottage, which restricts the use of CherrytreeHouse to residential purposes only;

an agreement entered into five years ago between Tristram and Ysolde, the current

owner of Limetree Cottage, under which Ysolde was allowed to use the driveway of

Cherrytree House as a short cut to the main road; and,

a lease of the garage at the rear of Cherrytree House, entered into last year between

Tristram and Ysolde.

What difference would it make to your answer if the title to Cherrytree House were

unregistered.

When regard is had to the list of overriding interests in s 70(1) [Land Registration

Act 1925] it is apparent that all of them are interests which can come into being at any

time, and some of them may arise without any volition on the part of the registered

proprietor or anyone else seised of an estate in the land

(perLord Oliver,Abbey National Building Society v Cann [1991]).

Discuss.

4. Early in 1984 Simon entered a vacant Victorian detached house, owned by the

council, via an insecure rear door, fitted a lock, blocked the front door and occupied

the property. Simon proceeded to make the property habitable. The following year,his girlfriend, Betty, moved in with him. Simon took great pride in his home and

continued to make further repairs to the property, such as installing a bathroom, damp

proofing and decorating. By 1986, Simon and Betty had a child, and, wishing for

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greater security, Simon wrote to the council asking for a lease. The council replied

stating the matter was being considered by their Housing Committee but took no

further action. In February 1987, Simon obtained planning permission for the

construction of a garage. In 1990, the council wrote a letter marked for the attention

of the occupier of the property, demanding the payment of council tax. Eventually,

after making contact again with the Housing Officers of the council, Simon wrote aletter, in May 1995 to the council, marked "without prejudice", proposing terms for a

lease. No further contact has been made between Simon and the council except that,

following floods in 1996, the council carried out emergency work to the drains on the

property without Simon's knowledge or consent.

Advise the council whether it may recover possession of the house.

it is important to note at the outset that the doctrine of proprietary estoppel cannot

be treated as subdivided into three or four watertight compartments . the quality of

the relevant assurances may influence the issue of reliance, that reliance and detriment

are often intertwined, and that whether there is a distinct need for a mutualunderstanding may depend on how the other elements are formulated and

understood.

(perRobert Walker L.J. Gillett v Holt[2000]).

Discuss.

Jack rents a room in a bed and breakfast establishment. His room contains a bed,

table and chairs and (contrary to his agreement with Susan, the owner) he has

installed a cooker. He shares a bathroom with two other occupants on the same floor.

Jack is disturbed by the noise made by the other occupants. The walls between the

rooms are so thin that he can hear conversations and other everyday noise. In

addition, Paul, an insomniac who occupies the adjacent room, enjoys playing his steel

drum at night. Susan has now decided to renovate and sell the house and has notified

all the occupants that they have one week to quit the premises.

Advise Jack of any rights and remedies he might have in relation to these matters.

In 2000, Amy, Beth, Carrie, Damien, Errol and Freda, who were all trainee solicitors

and law students, bought a house in Surrey to live in while completing their training.

Amy (an infant prodigy) was 17 at the time of the purchase.

Amy, whose early promise has faded away, has confided to Beth that she has given up

her studies and is moving to Torquay to find herself. She asks Beth to tell the

others and to ask them to buy her out.

Carrie and Damien have now fallen in love with each other and have decided to get

married and move north where property prices are cheaper. They want the house to

be sold.

Errol failed his exams and, needing to raise some money to pay fees for an extra

years study, he mortgaged his interest to the Sunny Building Society. He has failedto meet the mortgage repayments and the Sunny Building Society is now planning to

take action to recover the loan. Errol wants to stay in the house, however, until he

finishes his studies.

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Freda was tragically killed while cycling to college one day. It turns out that she was

secretly married to Gerard who is now claiming her share in the house.

Advise on the devolution of the legal estate and equitable interests; and,

Advise Beth and Errol who wish to stay in the house until they have completed theirstudies whether they can prevent the house from being sold.

Lennie is the freehold owner of a large plot of freehold land. It comprises the main

house with several large outbuildings, a small cottage, an orchard and a wood. In

1999, Lennie sold the cottage together with its small garden to Cassie. After her

purchase of the freehold, Cassie used the two separate tracks leading from the cottage

to go into the orchard to pick cherries and into the wood for a walk. Lennie is now

objecting to her use of the tracks.

Last year, Lennie told Sam, his neighbour, who rents one of the outbuildings forstoring his combine harvester, that he could park his tractor on a piece of land to the

rear of the building. The lease is renewable on an annual basis and has just been

renewed but no mention was made about parking the tractor on the piece of land.

Lennie, wishing to use the piece of land to park his own car, has now told Sam to

move his tractor.

Jane, an elderly widow, who lives on a cottage in the nearby village, has been entering

the land for many years to go into the wood to pick mushrooms. When apprehended

one day by Lennie she tells him that she is simply carrying on the practice exercised

by her mother and grandmother before her, and, that she always come very early in

the morning because that is the best time to pick mushrooms.

Advise Cassie, Sam and Jane on the nature of any rights they might have.

9. The Law Commission Report, Transfer of Land: The Law of Positive and

Restrictive Covenants 1984 (Law Com 127) proposed the creation of a new interest in

land known as land obligations whether positive or negative. Discuss why such a

reform might be an improvement on the existing law relating to restrictive covenants.

Internal Examiner: Rosalind Malcolm

External Examiner: Professor Peter Luxton

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DRAFT LAND LAW 2003

STUDENTS MAY TAKE ANY SET OF PROPERTY STATUTES INTO THE

EXAMINATION ROOM. THESE MAY BE HIGHLIGHTED BUT OTHERWISE

UNANNOTATED.

ANSWER FOUR QUESTIONS

1. Cain and Abel, who were twins, were joint owners of Paradise Farm. On

retirement last year, they leased the farm to Noah for 999 years. Unfortunately, with

little to occupy their time, the brothers fell to carousing late into the night and one

evening last month, after a drunken argument, Cain took a pitchfork and stabbed his

brother to death. The next day, in remorse for what he had done, Cain took his own

life.

In their wills, Cain had left all his property to the Countryside Friendly Alliance, andAbel had left his property to the Socialist Friendly Alliance.

Noah, on taking the lease, had started to work the farm intensively, and, while

ploughing a flower meadow for wheat cultivation, he had unearthed various artefacts

including a gold bracelet and a batch of Roman coins. He had also found, hidden in

the farm-house chimney, a tin box containing a wad of banknotes inside an envelope

addressed to Cain.

Ham, a farm labourer who was employed on an occasional basis by Noah, had heard a

rumour that the brothers were misers and had hoarded a great quantity of gold in one

of the farm buildings. During his lunch breaks, Ham had taken up the habit of

searching through these buildings to see what he could find. One day, he discovered a

dozen gold sovereigns under an old tractor and was just putting them in his pockets

when Noah came in and caught him.

Advise who is entitled to the items which have been found.

2. The [Land Registration Act 2002] will bring about an unprecedentedconveyancing revolution within a comparatively short time. It will also make other

profound changes to the substantive law that governs registered land. These changes,

taken together, are likely to be even more far-reaching than the great reforms of

property law that were made by the 1925 property legislation.

Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law

Com No 271).

Discuss.

3. Two years ago Ruth bought a house for 250,000 for herself and her mother,

Naomi to live in. The house was conveyed into Ruths sole name. However, Naomi

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had given her daughter 25,000 as a contribution to the purchase which Ruth used as

the deposit, raising the balance from the First Building Society.

Ruth was a self-employed trapeze artist, but finding this occupation too precarious,

she decided last year to set up in business as a florist. She took out a mortgage with

the Second Building Society to enable her to acquire a lease on a shop and this loanwas secured by way of legal charge on Ruths house. Naomi did not approve of this

change of job and Ruth, not wishing her mother to know of this second loan, waited

until Naomi had gone on a trip to attend a retired circus artists convention in the USA

before entering into this second mortgage.

Unfortunately, Ruths florists shop has not flourished and she has been unable to

make any repayments on either of the loans. Feeling a failure, she ran away last

month with the Moscow State Circus. Both building societies are now seeking to

recover their loans.

Advise Naomi. How would your advice differ if the Land Registration Act 2002were in force?

4. Jonathan was the estate manager for David for many years. He had always worked

for a low wage as David promised him on many occasions that in his will he would

leave him the house on the estate in which Jonathan was allowed to live rent-free.

Unfortunately, David fell on hard times and was forced to sell the estate to Solomon.

However, he did make it clear in the pre-contractual negotiations with Solomon that

Jonathan should be allowed to continue to live in the house rent-free for as long as he

wanted and that the estate was being sold at a lower value to compensate for this.

Despite this agreement, Solomon wrote last month to Jonathan giving him 6 months

notice to quit.

Advise Jonathan.

5. An easement involves a diminution of natural rights or ownership, and a grant

under which proprietary rights of the so-called servient owner are either shared orusurped cannot create an easement. The line is difficult to draw, and each new case

would probably be decided on its own facts in the light of common sense.

(Gale on Easements, paragraph 1-52, 16th edn.)

Discuss.

6. Last year, Hook, who was the registered proprietor of a large Victorian house,

converted it into two separate flats with shop premises occupying the ground floor

part.He entered into an agreement with his friend Amy that she should occupy Flat 1.

They signed a document described as a licence and she moved in paying Hook a

deposit and one months rent in advance. The flat had two bedrooms and Hook later

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allowed his daughter Hildegard to move in with Amy. Amy disliked Hildegard

intensely and objected to this arrangement saying that Hook had no right to move

anyone into her flat.

When Flat 2 was ready, Hook advertised it through an agent. Betty, a student, liked

the flat very much and agreed to take a six months tenancy to commence at thebeginning of the autumn semester. Hook was willing to defer the commencement of

the tenancy as Betty had very good references and she also agreed to pay the

advertised rent plus 10% for the first year.

Hook agreed in writing to let the shop to Carrie for five years at a rent of 5,000 per

annum. Both he and Carrie signed the agreement.

Hook has now sold the property to Peter who wishes to know whether he is bound by

the agreements with Amy, Betty and Carrie.

Advise Peter.

How would your answer differ if the Land Registration Act 2002 were in force?

7. If the freedom of home-owners to make economic use of their homes is not to be

frustrated, a bank must be able to have confidence that a wifes signature of the

necessary guarantee and charge will be binding upon her as is the signature of anyone

else on documents which he or she may sign.

(per Lord Nicholls,Royal Bank of Scotland v Etridge (2001) ).

To what extent do you consider that the doctrine of undue influence affects the ability

of home-owners to make economic use of their homes?

8. In 2000, Adam, Betty, Clarry, Debbie and Edward bought a manor house as joint

tenants as they had formed a sect which worshipped aliens from outer space and

wished to set up a commune to promote their belief. Betty was 17 at the time. They

clubbed together to provide part of the purchase price from their combined savings

and raised the balance with a loan from the Alien Building Society. Since then, the

following events have occurred.

In 2001, Adam, left the commune believing that he had been kidnapped by hostile

aliens who had performed medical experiments on him before returning him to earth.

He wrote to Betty and Clarry explaining his decision and asking for the return of hiscontribution to the purchase price. Betty replied, expressing her dismay at Adams

loss of faith in aliens, but saying nothing about the return of his money.

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In 2002, Clarry had to return home to care for her mother who was seriously ill with

an unknown fever. Her mother recovered but unfortunately, Clarry caught the fever

and died. Clarry had left all her property to her mother in her will.

No mortgage repayments had been made since the end of 2002 and the Alien BuildingSociety is now seeking an order to sell the house. Betty and Edward, however, wish

to carry on living there as they now have one-year old triplets. Debbie wishes to stay

to carry on the work of the sect.

i) Advise the Alien Building Society whether it may insist