Property Final Boss Short Notes PDF

Conveyancing 1. Introduction What is conveyancing? Conveyancing is the transfer of property/land ownership from one person(s) to another. Why solicitors? While not mandatory, solicitors offer professional expertise and insurance for conveyancing. Solicitors and licensed conveyancers handle most...

Conveyancing 1. Introduction What is conveyancing? Conveyancing is the transfer of property/land ownership from one person(s) to another. Why solicitors? While not mandatory, solicitors offer professional expertise and insurance for conveyancing. Solicitors and licensed conveyancers handle most conveyancing, with paralegals assisting in administrative tasks. Land registration Land registration under the Land Registration Act 2002 simplifies processes, speeds transactions, and reduces fraud. Similar to the DVLA system. 2. Pre-Contract Stage Seller's solicitor tasks Prepares a draft contract. Obtains evidence of title and relevant property information (planning permissions etc.). Seller has a limited duty to disclose defects; Caveat Emptor applies. Buyer's solicitor tasks Checks the contract for suitability and client needs. Checks the land title, raising requisitions if necessary. Addresses any title problems to allow buyer withdrawal before exchange. Searches & finances Conducts searches (Local Authority, Land Registry). Checks buyer's finances and compliance with money laundering regulations. 3. Exchange & Completion Contract exchange Two copies of the contract are prepared and signed by both parties (buyer and seller). The exchange is usually agreed upon over the phone before the physical exchange. Both parties and their solicitors must be satisfied with pre-contract inquiries and any amendments. Post-contract actions Buyer's solicitor raises requisitions on the amount needed to complete the transaction. The buyer might need to insure the property. Pre-completion searches are carried out to avoid last-minute problems. Completion process Completion date is agreed upon. Monies are electronically transferred. Transfer Deed is dated, monies confirmed, and keys released. 4. Post-Completion Mortgage payments Outstanding mortgages/charges are paid off. Receipts are obtained for proof to the Land Registry. Land Registry The legal estate does not pass to the new owner until registration (s.27 LRA 2002). The buyer's solicitor pays any stamp duty and registers the title at the Land Registry. Client accounting Account to client: send any proceeds of sale and bill. 5. Legal Formalities Contract requirements Must be in writing. Must contain all agreed terms. Must be signed by each party. Governed by Section 2 Law of Property (Miscellaneous Provisions) Act 1989. Transfer deed All conveyances of land must be made by deed to be valid. Governed by s.52(1) L.P.A. 1925. Deed requirements Must clearly state its intention as a deed. Must be signed by the seller/grantor and witnessed. Must be delivered. Governed by S. 1 Law of Property (Miscellaneous Provisions) Act 1989. Contract effects At law: creates binding obligations. In equity: creates a specifically enforceable contract, granting an equitable proprietary interest in land. Title registration Legal estate doesn't pass to the new owner until registration. Governed by s. 27 LRA 2002. Registered vs. Unregistered Land Registered Land: Ownership is proven through an official copy from the Land Registry. Unregistered Land: Ownership is proven through deeds. Land Registration Act 2002 (LRA 2002) Aims to simplify conveyancing. Ensures land registration upon sales, gifts, transfers, and first legal mortgages. Built on the Law Commission Report (2001). Key Principles of Land Registration 1. Mirror Principle: Register should fully reflect all interests in land (but overridden by hidden interests). 2. Curtain Principle: Certain interests, especially under trusts, remain off the register. 3. Insurance Principle: If errors occur in the register, compensation is available. Process of Land Registration Unregistered Land: Sale triggers compulsory first registration within 2 months. Registered Land: Buyer only becomes the legal owner once the transfer is registered (creates a “registration gap”). Benefits of Registered Land Reduces time and costs (no need for repeated deed examinations). Provides a complete and accurate record of ownership. Simplifies the conveyancing process. Types of Interests in Registered Land 1. Registered estates (Freehold/Leasehold) 2. Protected interests (by an entry on the register) 3. Registered charges (mortgages) 4. Overriding interests (binding despite not being registered). Registers in a Title Document 1. Property Register – Property description, title type (freehold/leasehold), benefits. 2. Proprietorship Register – Owner details, title class, restrictions. 3. Charges Register – Details encumbrances (mortgages, covenants, easements). Overriding Interests 1. Overriding Interests - Definition An interest in registered land that binds the registered proprietor and future owners without needing to be recorded in the register. Contrasts with the Mirror Principle and Curtain Principle in land registration. 2. Legal Framework (LRA 2002)  Divides overriding interests into: o First Registration (Schedule 1) o Subsequent Registered Dispositions (Schedule 3) Section 71: Requires disclosure of interests during registration. Section 29(3): If an interest is revealed, it no longer remains overriding. 3. Categories of Overriding Interests (LRA 2002) A. Short Legal Leases Past: LRA 1925 – leases over 21 years were overriding. Present: Leases of 7 years or less are overriding. Future: May reduce to 3 years with e-conveyancing. Case Law: City Permanent Building Society v Miller – Equitable leases are not overriding. B. Property Rights of Persons in Actual Occupation Definition: Requires physical presence rather than a legal right. Key Cases: o Williams & Glyn’s Bank v Boland (1980) – Actual occupation binds the bank. o Chhokar v Chhokar (1984) – Temporary absence (hospital stay) does not negate occupation. o Abbey National BS v Cann (1990) – Relevant date is date of transfer, not registration. o Link Lending Ltd v Hussain (2010) – Factors like permanence, intention, and absence length determine occupation. Conditions for Overriding Status: o Interest must relate to land occupied. o Interest holder must disclose when asked. o Interest must be known or obvious upon reasonable inspection. Exclusions: Spousal rights under Family Law Act 1996 must be protected by register entry. C. Legal Easements and Profits Definition: A right over another's land (e.g., right of way, right to light). Past: LRA 1925 – all legal easements and some equitable ones were overriding. Present: LRA 2002 – Only easements acquired by prescription or implied grant are overriding. Conditions for Overriding Status: o Must be legal (not equitable). o Must arise by prescription or implied grant. o Must meet LRA 2002 Schedule 3 Para 3 conditions (e.g., known existence, visible on inspection). D. Adverse Possession Past (LRA 1925): Squatters could acquire title after 12 years of possession.  Present (LRA 2002): Squatters must show actual occupation to claim overriding interest. 4. Interests Binding vs. Not Binding on Purchasers Binding Interests: o Registered estates & interests. o Minor interests protected by Notice/Restriction. o Overriding interests. Not Binding: o Equitable interests that are overreached. o Unprotected interests not classified as overriding. Co- ownership What is Co-Ownership? When two or more people have concurrent interests in land. Examples: Married couples, business partners, friends sharing a house. Types of Co-Ownership 1. Joint Tenancy o Each person owns the whole property. o Right of Survivorship: If one dies, their share automatically transfers to the other. o No specific shares (not "half and half"). 2. Tenancy in Common o Each person owns a specific share (e.g., 50/50, 60/40). o No survivorship; share passes via will or intestacy rules. Legal Framework Law of Property Act (LPA) 1925 & Trusts of Land and Appointment of Trustees Act (TOLATA) 1996: o A trust of land automatically arises in co-ownership. o Legal owners = Trustees. o Beneficial owners = Protected by trustees. Key Rules Only joint tenancies exist in legal title. Beneficial interests can be held as joint tenants or tenants in common. Legal joint tenancies cannot be severed, but beneficial joint tenancies can. Terminating Co-Ownership  1. Sale – Trustees sell the legal estate. 2. Partition – Court or co-owners agree to divide land. 3. Union in a Sole Owner – If one co-owner dies, the survivor becomes sole owner. Survivorship Rule (Joint Tenancy) Joint tenants own the whole property. On death, ownership automatically transfers to the surviving tenant. A will cannot override this. Four Unities of Joint Tenancy 1. Possession – Equal right to occupy property. 2. Interest – Same type and extent of interest. 3. Time – Acquired at the same time. 4. Title – Derived from the same document. Overreaching (S2 LPA 1925) Protects buyers from hidden beneficial interests. Beneficiaries’ interests shift to sale proceeds instead of staying in the land. Requires at least two trustees to ensure a clean transfer. Severance of Beneficial Joint Tenancy Cannot sever a legal joint tenancy. Can sever a beneficial joint tenancy to become a tenant in common. Severance methods: o Written notice (S36(2) LPA 1925) – Immediate, clear intention to sever. o Court order, agreement, or sale. Co-ownership Trusts 1. Introduction to Co-ownership Implied, Resulting, Constructive Trusts Implied Trusts: Arise from contributions to property purchase, either at the time of purchase (resulting trust) or afterward (constructive trust). They don't require writing (s.53(2) LPA 1925). Resulting Trust: Based on contributions to the purchase price at the time of purchase. Beneficial interests are proportional to contributions. Presumption of resulting trust is rebuttable (e.g., gift). Constructive Trust: Based on contributions after purchase (e.g., mortgage payments, renovations). Requires either an express or inferred common intention to share ownership, and detrimental reliance by the claimant. Quantifying Shares: In constructive trusts, shares are determined by what's fair in the circumstances (Oxley v Hiscock, Stack v Dowden), not solely based on initial contributions. Stack v Dowden adds factors to consider when determining intention. 2. Implied Trusts Beneficial Interests Beneficial interests are equitable interests in property. Arise when someone contributes to a property's purchase price but isn't a legal owner. Example: A father contributes to his son's house purchase but isn't on the title. Trusts of Land Act 1996 TLATA 1996 governs trusts of land. Two types of implied trusts: resulting trusts and constructive trusts. Implied trusts arise from contributions to property purchase or agreements plus later contributions. Formalities & Exceptions S53(1) LPA 1925: Equitable interests must be in writing. S53(2) LPA 1925: Exception for implied resulting and constructive trusts; they don't need to be in writing. 3. Resulting Trusts Purchase Price Contributions Resulting Trust: Arises from contributions to the purchase price at the time of purchase. Beneficial interests are proportionate to contributions. Example: Bull v Bull - mother and son's joint purchase, conveyance to son only, resulting trust recognized. Presumption & Rebuttal Presumption: Equity presumes beneficial ownership reflects purchase price contributions. Rebuttal: This presumption can be rebutted by evidence of a different intention (e.g., a gift). Contribution must be at the time of purchase. 4. Constructive Trusts Post-Purchase Contributions Constructive trusts arise from contributions made after the property purchase. Contributions can include mortgage payments or other expenses. Express & Inferred Intention Express common intention: Parties explicitly agree to share ownership. Inferred common intention: Court infers shared ownership from parties' conduct. Detrimental Reliance The party claiming an interest must demonstrate detrimental reliance on the promise. This means they suffered a loss or disadvantage based on the agreement. Case Examples (Eves, Grant) Eves v Eves : Express common intention found; detrimental reliance shown through renovations. Grant v Edwards : Express agreement to share ownership; detrimental reliance through expenses and childcare. 5. Inferred Intention Higher Contribution Bar Inferred intention cases require a higher level of contribution than cases with express common intention. Mere contributions to household expenses are insufficient to infer common intention. Direct financial contributions to the purchase price or mortgage installments are needed to satisfy common intention and required detriment. Case Examples (Gissing, Lloyds Bank) Gissing v Gissing : Indirect financial contributions over 25 years did not create a beneficial interest; contributions must be directly towards property acquisition. Lloyds Bank v Rosset : Only direct contributions to purchase price or mortgage installments suffice to infer common intention; renovation/decoration is insufficient. 6. Quantifying Shares Fairness Principle In constructive trusts, the quantification of shares isn't solely based on initial contributions. Instead, it's determined by what's fair in the circumstances, considering all contributions and the overall situation. This fairness principle applies unless an express declaration of trust specifies otherwise. Case Examples (Drake, Oxley, Stack) Drake v Whipp : Illustrates a constructive trust where a 40% share was awarded, exceeding the proportion of the initial contribution. Oxley v Hiscock: Established that equitable shares are valued at the time of property sale, not the date of contribution. Stack v Dowden : Confirmed the fairness principle and added factors for determining intention (relationship nature, financial arrangements, etc.). Presumes joint tenancy for family homes unless proven otherwise. 7. Stack v Dowden Impact Joint Tenancy Presumption In the absence of an express declaration, a joint tenancy is presumed for family homes held by partners, even with unequal contributions. This presumption can be rebutted with evidence of a different intention. Exceptions & Considerations The presumption of joint tenancy in Stack v Dowden applies only to family homes, not commercial properties. The court considers various factors to determine the parties' intentions (relationship nature, financial arrangements, etc.). Laskar v Laskar Laskar v Laskar rejected a claim for a 50% share based on Stack v Dowden, as the property was an investment, not a family home. Unequal contributions and the investment nature of the property overrode the presumption of Stack v Dowden. 8. Overreaching & Disputes Overreaching Process Overreaching: A process where a buyer acquires land free of beneficiaries' equitable interests. Requires payment of purchase money to at least two trustees. Beneficiaries' interests are transferred from the land to the sale proceeds (s.2 LPA 1925). Williams & Glyn's Bank v Boland Illustrates the limitations of overreaching. Only one trustee (husband) existed; overreaching failed. Wife's beneficial interest, protected by actual occupation, bound the bank. TLATA 1996 & Court Orders s.11 TLATA 1996: Trustees must consult beneficiaries. s.12 TLATA 1996: Beneficiaries have a right of occupation if the trust purpose includes it. s.14 & s.15 TLATA 1996: Allow court applications regarding trust functions (e.g., sale). Mortgages 1. Introduction to Mortgages Definition and Nature A mortgage is a lender's right over land, securing debt repayment or obligation fulfillment. It's a crucial third-party right binding on the land. The lender provides funds for a purchase; the debt is secured by the land. Parties Involved Mortgagor: The borrower (money recipient). Mortgagee: The lender (e.g., bank, building society). 2. Mortgage Types Repayment Mortgages Repayment Mortgage: Monthly payments include capital (loan) and interest. Typically spans 20-25 years, but longer terms are possible. Endowment Mortgages Only interest payments are made. Capital repaid at the end of the term using an endowment insurance policy. Risk of insufficient funds from the policy to cover the debt. Pension Mortgages Links mortgage repayments to pension arrangements. Primarily for the self-employed and high earners (tax benefits). 3. Mortgage Creation Legal Mortgages Legal Mortgages are defined by Section 1(2) LPA 1925. Created via lease for a term of years absolute with a redemption provision or a charge by deed. Both methods allow for early redemption by paying off the mortgage. Registered Land Mortgages Created by deed, explicitly stating the property is charged with the debt as a legal mortgage. Must be registered in the charges register of the title; otherwise, it's an equitable mortgage. A mortgage created in writing (not by deed) also creates an equitable mortgage. 4. Redemption & Remedies Right to Redeem Equity of Redemption: Mortgagor's right to repay the mortgage and regain ownership. Legal Right to Redeem: Defined in the mortgage contract (usually 6 months from creation). Equitable Right to Redeem: Exists after the legal redemption date has passed. Unreasonable restrictions on redemption are void (Fairclough v Swan Brewery). Mortgagee Remedies Obtaining Possession: Requires a court order; court can postpone if mortgagor can repay soon. Sale: Power of sale arises after the legal redemption date if the mortgage is by deed and there's no contrary intention. Action in Debt: Lender can sue for the outstanding debt; often used with insurance policies (subrogation). Appointment of a Receiver: Possible for business premises. Sale & Foreclosure Power of Sale Triggered: By more than 2 months' arrears, notice served and 3 months elapsed without payment, or breach of mortgage terms. Mortgagee's Duty: To obtain the best possible price and act in good faith. Foreclosure: Rare remedy where the property is transferred to the mortgagee; requires a possession order if the mortgagor refuses to vacate. 5. Guarantors & Liabilities Guarantor Liability A guarantor can guarantee all or part of a mortgagor's loan. Guarantors are jointly and severally liable for the loan. They don't need to be on the mortgage agreement or deeds. Remedy against a guarantor is an action in debt. Licences (UK Law) Definition A licence is a personal right granted by a landowner to another person, allowing them to do something on the land. It does not create an interest in land (unlike leases or easements). Can be oral or written; no formal requirements. Types of Licences 1. Bare Licence o Simple permission to enter/use land without payment or consideration. o Can be revoked anytime with reasonable notice. o Case: Robson v Hallet (1967) 2. Licence Coupled with an Interest o Attached to a right over the land, e.g., a right to fish or hunt. o Cannot exist without the underlying interest. 3. Contractual Licence o Granted in return for consideration (e.g., payment). o Enforceable through contract law (damages, injunctions, or specific performance). o Example: A paid right to park a car in a designated space. Creation of a Licence Expressly granted (written/oral agreement). Falls short of legal requirements for proprietary rights (e.g., lack of formality). Enforcement A licence does not bind third parties (unlike easements). Personal right—only enforceable against the person who granted it. Contractual licences can be enforced via contract law remedies (damages, injunctions). Practical Application Leases vs. Licences: o If an agreement lacks exclusive possession, a certain term, or rent, it might be a licence, not a lease. o Example: If a person occupies a property but lacks exclusive control, they likely have a licence, not a lease. Key Case Law Thomas v Sorrell (1673) – Defined a licence as personal permission preventing trespass.  Colchester & East Sussex Co-op v Kelvedon Labour Club (2003) – Parking a car under a licence. Kewell Investments v Arthur Maiden (1990) – Erecting advertisements under a licence. Summary Licences do not create proprietary rights and cannot be registered. Bare licences are revocable at will. Contractual licences offer some protection under contract law but do not transfer to new landowners unless expressly assigned. Proprietary Estoppel 1. Introduction & Definition Proprietary estoppel prevents someone from going back on a promise that another person relied on to their detriment. It's an equitable remedy, meaning fairness is central. Key elements include assurance, reliance, detriment, and unconscionability. Nutshell: Elements & Effect Assurance: A clear representation or promise about land rights. Detriment: Acting to one's disadvantage based on the assurance. Reliance: The detrimental action was taken because of the assurance. Effect: The court enforces the expectation even without legal formalities. Simple Application Example A and B live together; A owns the house, tells B it's their family home. B spends money on improvements, relying on A's statement. A tries to evict B; estoppel gives B a legal right despite lacking formal ownership. 2. Historical Context & Cases Early Development (Ramsden v Dyson) Ramsden v Dyson (1866): Established the principle of proprietary estoppel; a landowner who encourages another to believe they have an interest in the land, and that other acts to their detriment in reliance, may be estopped from denying that interest. Key Elements (Ramsden v Dyson): Verbal agreement or expectation, possession with landlord's consent, expenditure on land based on that promise/expectation, without objection from the landlord. Midland Bank v Farmpride Midland Bank v Farmpride (1980): Restated and broadened the principle from Ramsden v Dyson, clarifying that it's not limited to landlord-tenant relationships. Key Element (Midland Bank v Farmpride): Focuses on the expectation created or encouraged by the landowner (B), and the detrimental reliance by the claimant (A) on that expectation. 3. Requirements & Limits Four Key Elements Assurance/representation: A clear promise or representation of an interest in land. Detriment: The claimant acted to their detriment in reliance on the assurance. Reliance: The detriment was suffered in reliance on the assurance. Unconscionability: It would be unjust for the landowner to go back on their assurance. Assurance/Representation (Thorner v Majors) Holistic Approach: Courts consider all facts to determine if assurance exists, even without express statements. Inferences: Reliance on inferences and conduct can suffice as assurance. Thorner v Majors example: Unpaid farm work for 30 years, coupled with statements about inheritance, constituted assurance. Limits (Cobbe v Yeoman's Row) No binding agreement: Proprietary estoppel doesn't apply if there's only a "gentleman's agreement" with no intention to be legally bound. Unconscionability is key: The assurance must be unconscionable for the landowner to go back on it. Cobbe v Yeoman's Row example: Oral agreement to buy property; developer's reliance on obtaining planning permission was insufficient for estoppel because the initial agreement lacked binding intent. 4. Reliance, Detriment & Unconscionability Reliance (Coombes v Smith, Greasley v Cooke) Reliance must be demonstrated; a causal link between the assurance and the change of position is needed. Reasonable reliance is presumed unless proven otherwise. (Greasley v Cooke) Detriment (Gillet v Holt, examples) Detriment is judged at the time the assurance giver seeks to renege. Detriment includes financial loss (e.g., building a bungalow, Inwards v Baker), reduction in wages (Suggitt v Suggitt), and changes in circumstances (Crabb v Arun DC). Unconscionability (Cobbe, Gillet v Holt) Unconscionability is key; mere disappointment isn't enough; the landowner's conduct must be unjust. The court considers the matter holistically; unconscionability is central (Gillet v Holt). Conduct must "shock the conscience of the court" (Cobbe v Yeoman's Row). 5. Remedy & Protection Extent of Remedy (Crabb v Arun DC) Remedy is the minimum equity to do justice. Court considers the assurance given when determining the remedy. Remedy can be a lease, easement, licence, or freehold. Remedy may be equitable or damages. Protecting the Equity (Registered Land) Equity protected by registering a notice or restriction on the register. May also be protected by occupation (Sch 3 LRA 2002). Once protected, it binds third parties. Adverse Possession 1. Introduction & Terminology Adverse Possession Defined Adverse possession is the acquisition of title to land through possession, not the acquisition of an estate or interest. It applies to squatters who dispossess the owner. It's about acquiring title by possession, not by formal legal means. Key Terminology Adverse possessor/squatter: The person who has dispossessed the owner. Paper owner/registered proprietor: The dispossessed owner with formal title. 2. Establishing Possession Factual Possession Requires a sufficient degree of physical custody and control. Demonstrates single and exclusive possession, acting as if the land is owned. Key case: Pye v Graham (2002) established the standard. Intention to Possess Means animus possidendi: the intention to possess, not necessarily to own. Inferred from conduct; intention to exclude the world at large, including the paper owner, as far as reasonably possible. Key case: Powell v McFarlane (1979) defines the required intention. Adverse Possession Possession must be inconsistent with the owner's rights. Possession under a lease or license is not adverse. Must be demonstrated for at least 10 years (under LRA 2002). Pye v Graham Case Established the requirements for factual possession and intention to possess. High Court initially ruled in favor of the Grahams (adverse possessors). House of Lords affirmed the High Court's decision, clarifying the legal framework for adverse possession. 3. LRA 2002 & Applications Registered Land Claims After 10 years of adverse possession, an application to be registered as proprietor can be made. Notices are issued to the registered proprietor and interested parties. Three Responses Registered proprietor can consent to the application. Registered proprietor can object to the application. Registered proprietor can serve a counter-notice, requiring one of three exceptional grounds to be met. Exceptional Grounds Estoppel: All requirements must apply. Entitlement: The squatter is entitled to be registered (e.g., through a will or purchase). Boundary Discrepancy: Boundaries on the ground and title plan don't match. Limitation & Recovery If exceptional grounds are not established, the registered proprietor has 2 years to recover the land. After 2 years, the adverse possessor may reapply. Property Covenants 1. Introduction & Definitions Positive Covenant: An obligation to do something (e.g., maintain fences). Restrictive Covenant: An obligation not to do something (e.g., not to run a business from the house). Covenant Location & Parties Covenants are found in transfer deeds or express deeds of covenant. Covenantor: The party burdened by the covenant. Covenantee: The party who benefits from the covenant. Initial Enforceability Initially enforceable between original parties due to privity of contract. Subsequent enforceability depends on whether the benefit and burden pass to successors in title. 2. Common Law Rules Benefit Passing The benefit passes at common law if the covenant touches and concerns the land of the covenantee, the original covenantee held the legal estate, there was an intention for it to pass, and the successor derives title from the original covenantee. The covenant must benefit the land, not be personal to the owner. Burden Passing & Exceptions Generally, the burden of a covenant does not pass at common law to subsequent purchasers. Exceptions: unbroken chain of indemnity covenants; Halsall v Brizell principle (taking benefit necessitates accepting obligations); both benefit and burden must pass for common law enforceability. 3. Equitable Rules Benefit Passing The covenant must touch and concern the land of the covenantee. The benefit must be annexed to the land or expressly assigned. The land may be part of a building scheme. Burden Passing Only restrictive covenants can be enforced in equity. The burden must be intended to pass with the land. The purchaser must have notice of the covenant. 4. Discharge of Covenants Statutory Discharge S84 LPA 1925 allows for the discharge of covenants, fully or partially, under specific conditions. Conditions include: obsolescence, prevention of reasonable use, consent from beneficiaries, and no injury to beneficiaries. Other Discharge Methods Discharge can occur through a deed of release or variation, agreed upon by land owners. Merger of ownership and occupation of burdened and benefiting land also discharges the covenant. Easements (UK Law) Definition An easement is a property right allowing one person to use another’s land for a specific purpose (e.g., right of way, drainage). Requires two estates in land: o Dominant Tenement (benefiting landowner). o Servient Tenement (burdened landowner). Easements are private rights, not public rights. Essential Characteristics (Re Ellenborough Park ) 1. Dominant & Servient Tenements – Two pieces of land must exist. 2. Benefit to Dominant Land – Must enhance land use, not be a personal right. 3. Diversity of Ownership – Must have different owners or occupiers. 4. Capable of Grant – Must be definable, similar to existing easements, and not impose obligations on the servient owner (except maintaining fences). Types of Easements Legal Easements – Must comply with s.1(2) LPA 1925 (created by deed & registered). Equitable Easements – Created in writing (s.53(1) LPA 1925) but lack full legal formalities. Creation of Easements 1. Express Grant – Created by deed under s.52 LPA 1925. 2. Implied Grant – Can arise due to: o Necessity (no other access). o Common Intention (Liverpool CC v Irwin ). o Wheeldon v Burrows – Easements pass if land is divided. o s.62 LPA 1925 – Easements pass with land unless excluded in the deed. Examples of Easements Right to place a pub sign – Moody v Steggles. Right to store coal in a shed – Wright v Macadam (valid). Storage of goods in a cellar – Grigsby v Melville (not an easement). Right to park a car – Moncrieff v Jamieson (valid easement). Profits à Prendre Right to take resources from another’s land (e.g., fishing, mining). Unlike easements, ownership of land is not required. Termination of Easements 1. By statute. 2. By release (express or implied). 3. By unity of ownership (dominant & servient lands merge). Key Distinctions Easement = Proprietary right (binds successors in title). Licence = Personal right (does not bind third parties). Easements Lecture 1. Acquisition by Prescription Introduction: Basis of Prescription Prescription is based on the presumption of a lost grant. If a right has been exercised for a long time, the court presumes a lawful grant. This area of law is based on a legal fiction. Three Basic Rules User as of right: Exercised peacefully as if entitled. User in fee simple: Possession of the land. Continuous user: Uninterrupted use. User as of Right Requires nec vi (without force), nec clam (without secrecy), nec precario (without permission). User in Fee Simple The user must have been in possession of the land. Continuous User Uninterrupted use for the required period. 2. Prescription Methods Common Law Prescription: Based on the presumption that a right exercised for a long time originated from a lawful grant. Requires use since time immemorial (before 1189), practically impossible to prove. Proof of over 20 years' use creates a rebuttable presumption of a grant. Lost Modern Grant If use for 20+ years is proven, the court presumes a lost deed. This creates a fictitious deed, establishing the easement. Prescription Act 1832: Short Period Easements: 20 years continuous use. Profits à prendre: 30 years continuous use. Prescription Act 1832: Long Period Easements: 40 years continuous use. Profits à prendre: 60 years continuous use. 3. Legal Status Legal or Equitable? Easements acquired by prescription have legal status. This is based on a fictitious deed. Therefore, they can override a registered disposition. Leases - Part 1 1. Introduction to Leases Lease Importance & Types Leases allow landowners to profit from their land by letting tenants use it for rent. Types include domestic, business, and agricultural leases. Two main lease types are fixed-term leases (specific duration) and periodic tenancies (indefinite, until terminated by notice). Both fixed-term and periodic tenancies are legal estates under s1(1) LPA 1925, specifically a "term of years absolute". 2. Lease Requirements Exclusive Possession Exclusive possession is a key requirement for a lease, as per Street v Mountford. The tenant must be able to exclude all others, including the landlord, except in specific exceptions (e.g., service occupancies, family arrangements). Cases like AG Securities v Vaughan and Antoniades v Villiers illustrate situations where shared occupancy might indicate a license, not a lease. Term Certainty A lease requires certainty of term: both the start and duration must be clear. Fixed-term leases need a defined start date and length (Lace v Chantler). Periodic tenancies continue until terminated by notice; the notice period defines the certainty. Rent Payment While not strictly required for a lease to exist (s.205 LPA 1925), rent payment is typical. Leases often involve rent, but premiums might be paid upfront, especially in long leases, alongside nominal rent. 3. Legal Lease Creation Express Grant Requires a deed (s.52(1) L.P.A. 1925) unless for 3 years or less. A deed must clearly state it's a deed, be signed by the grantor and a witness, and be delivered (s.1 L.P.(M.P.)A. 1989). Leases over 7 years must be registered; those 7 years or less are overriding interests (Schedule 3 para.1 L.R.A. 2002). Implied Grant Periodic tenancies and leases of 3 years or less can be created informally, orally, or by a written document that isn't a deed (s.54(2) L.P.A. 1925). Enforceability Legal leases over 7 years, if properly registered, bind third parties (ss.29 and 30 L.R.A. 2002). Legal leases of 7 years or less bind third parties as overriding interests (Schedule 3 para.1 L.R.A. 2002). 4. Equitable Leases Creation & Enforcement An equitable lease arises when the proper formalities for creating a legal lease (e.g., a deed) are not followed, but there's a specifically enforceable contract for land. This contract must be in writing, contain all terms, be signed by each party (s.2 L.P.(M.P.)A. 1989), and the parties must have "clean hands". It excludes informal leases of 3 years or less and auction contracts. Walsh v Lonsdale (1882) 21 Ch. D. 9 established the principle of equitable leases. Overriding Interests An unregistered equitable lease might be an overriding interest under Schedule 3, paragraph 2, LRA 2002 if it's a proprietary interest, the tenant is in actual occupation that's obvious on inspection, and the tenant hasn't failed to disclose the interest when asked. If it's not an overriding interest, the buyer generally takes free of the equitable lease unless the tenant can show an implied periodic tenancy, possession, and rent payment. 5. Lease Dispositions & Termination Assignments & Subletting Assignment of leases: Transfer of the entire leasehold interest to another party. Subletting: Granting a smaller interest within the existing leasehold to a third party (subtenant). The original tenant remains liable to the landlord. Termination Methods Expiry: Lease ends at the agreed-upon date. Notice to quit: Either landlord or tenant provides notice to end the periodic tenancy. Notice period varies depending on the tenancy type (e.g., monthly, yearly). Forfeiture: Landlord's right to terminate due to tenant's breach of covenant (terms of the lease). Other methods include repudiation by fundamental breach, frustration, surrender, merger, enlargement, and disclaimer. Leasehold Covenants (UK Law) 1. Introduction Leasehold covenants regulate the rights and duties of landlords and tenants. Can be express (written in lease) or implied. Leasehold relationships have both contractual and proprietary elements. 2. Landlord’s Covenants 1. Quiet Enjoyment – Tenant has the right to uninterrupted possession. 2. Not to Derogate from Grant – Landlord must not make premises unusable for the agreed purpose. 3. Repairing Covenant – Landlord is not liable unless specifically agreed. 4. To Renew the Lease – Some leases provide an option to renew, which must be registered. 3. Tenant’s Covenants 1. To Pay Rent – Non-payment is a breach unless the lease is frustrated (National Carriers v Panalpina).  2. Use of Premises – Must follow agreed purposes (e.g., no nuisance, no alterations). 3. Assignment/Subletting – o General Rule: Tenant can assign/sublet unless expressly prohibited. o Absolute vs. Qualified Prohibition: § Absolute – Total ban on assignment. § Qualified – Requires landlord’s consent, which must be reasonable (S.19 Landlord and Tenant Act 1927). o Reasonable Refusals: Poor credit, history of breaches, competing business. o Unreasonable Refusals: Landlord wanting to use the property himself. 4. Enforceability After Assignment (Landlord & Tenant (Covenants) Act 1995) New Tenants/Landlords: o Take over benefits and burdens of covenants. Original Tenant: o Released from liability for future breaches if landlord consents to assignment. Original Landlord: o Released from liability if tenant consents or court orders release. 5. Remedies for Breach of Covenant Landlord’s Remedies Against Tenant 1. Forfeiture (Lease Termination) o For non-payment of rent: Tenant can avoid forfeiture by paying arrears. o For other breaches: Requires a Section 146 LPA 1925 Notice, allowing time for remedy. o No forfeiture if the landlord accepts rent after a breach. 2. Damages, Specific Performance, Injunction Tenant’s Remedies Against Landlord 1. Damages, Injunction, Specific Performance 2. Repudiation (if landlord’s breach is fundamental) 3. Prevention of Harassment Key Takeaways Lease covenants bind both parties and may continue after assignment. Forfeiture is the main landlord’s remedy, but tenants have rights to relief. Assignments require landlord’s consent, which must not be unreasonably withheld.