LIL310 Land Law: 2000/2001

LAND LAW Level 1 Single Honours Programme (30 credits) Module leader: Professor Rosalind Malcolm Email address: r.malcolm@surrey.ac.uk
Lecture topics History: common law and equity Estates and tenure 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

Course assessment 3 hour examination at the end of the second semester. 2 pieces of coursework.

LIL310 Land Law: 2000/2001

READING LIST Students will need to purchase one textbook from the list of student texts and any set of property statutes. Students are expected to bring their statute books to the lectures. Students on the single honours programme are expected to read the articles and other reading referenced throughout the handbook. Introductory and Background Reading Understanding 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) The Law of Real Property Megarry & Wade, (Sweet & Maxwell) Modern Land Law Thompson (2nd, ed. OUP) Practical Approach to Land Law McKenzie and Phillips (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) 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)
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LIL310 Land Law: 2000/2001

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

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 Some useful Websites Land Registry: http://www.landreg.gov.uk Law Commission: http://www.lawcom.gov.uk Statutes: http://www.hmso.gov.uk Current Bills, Hansard etc: http://www.parliament.uk BAILII (British & Irish Legal Information Institute) recent case law: http://www.bailii.org

LIL310 Land Law: 2000/2001

LAND LAW LECTURE OUTLINE 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 1290 Tenures 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) 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]
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LIL310 Land Law: 2000/2001

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 fittings The 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 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)
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LIL310 Land Law: 2000/2001

Land fronting water Foreshore Crown Public 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) South Staffordshire Water Co v Sharman [1896] But Hannah v Peel (1945) Freeholder v tenant
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LIL310 Land Law: 2000/2001

Legal and Equitable interests Legal 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 Rights Privity of contract (Contracts (Rights of Third Parties) Act 1999 Does the interest attach to the land so as to bind third parties? Meaning of purchaser : 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? What is the effect of registration and non-registration? What is the process of search? Classes of land charge
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LIL310 Land Law: 2000/2001

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 between landlord 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. The Land Registration Act 2002 and the Law Commission Report: Transfer of Land: Land Registration Report No 235; Land Registration for the Twenty first
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LIL310 Land Law: 2000/2001

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 compared Land 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 freehold absolute 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) - The statutory 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 487 Rights subsisting in land: Unpaid vendors lien - London & Cheshire Insurance Co v Laplagrene Property Co Ltd [1971] EG 499 Rights behind a bare trust Hodgson v Marks [1971] Ch 892
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LIL310 Land Law: 2000/2001

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] Boland Chokkar 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, Boland and Flegg 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 title Schedule 4 LRA 2002 Kingsalton v Thames Water Developments [2002] Indemnity Sch 8 LRA 2002

ACQUIRING TITLE TO LAND Formality Subject 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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LIL310 Land Law: 2000/2001

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 - leases S.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 2002 Schedule 6 LRA 2002 Impact of change
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LIL310 Land Law: 2000/2001

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 for sale 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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LIL310 Land Law: 2000/2001

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 in Fisher 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 Act 1925, 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 1257 Money 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 1286 Drake v Whipp [1996] 1 FLR 826 Stokes v Anderson [1991] Midland v Cooke [1995] 4 All ER 562
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LIL310 Land Law: 2000/2001

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 317 Passee 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 107 Gift 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 Bankruptcy Re 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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LIL310 Land Law: 2000/2001

Brooker v Palmer (1942), Ogwr Borough Council v Dykes (1989), Family Housing Association v Jones (1990) Bruton v London & Quadrant Housing Trust [2000] Formalities Legal 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 tenement 2) easement must accommodate the dominant tenement 3) 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 definite c) the right must be within the general nature of rights capable of existing as easements Acquiring an easement Express easements: 1) statute 2) grant 3) reservation Implied easements 1) necessity 2) common intention 3) the rule in Wheeldon v Burrows 4) 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 Hall farm 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) Assignment Equitable rules, Miles v Easter [1933] 3) Building scheme or scheme of development Elliston 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) 2) 3) 4) Covenant negative in nature Dominant and servient tenement; LCC v Allen [1914] Covenant must touch and concern; Re Gadds Land Transfer [1966] 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 in Dearle 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 461 Lewis 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 362 Trustee 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 receiver Foreclosure

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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. TUTORIAL 1 1. 2. 3. 4. 5. 6. What form of tenure exists at the present day? What do we learn from knowledge of a person's estate in land? What is the difference between an estate of freehold and an estate less than freehold? Explain the nature of the largest estate in land and summarise the rights this gives to its owner. What is the distinction between a fee simple in reversion and a fee simple in remainder? "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. 8. 9. 10. 11. 12. 13. Explain how the common law and equity exist as separate sources of English law and use examples from property law to illustrate your answer. In cases of conflict between the rules of common law and equity, which will prevail? Who is equity's darling? Why is the person of importance? Explain the meaning of the doctrine of notice. Explain the differences between legal estates and interests in land and equitable interests in land. For what reasons might an interest in land be equitable rather than legal? Distinguish between: (a) (b) (c) (d) realty and personalty proprietary rights and personal rights estates and interests 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. 16.

What does section 1 of the Law of Property Act 1925 provide? What is "land"?

TUTORIAL 2 17. 18. What tests are applied to determine whether chattels have become fixtures? 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) (b) (c) (d) (e) 19. a replica of the "Three Graces" which is standing in the garden; a chandelier; a fitted kitchen; adjustable bookshelves which fit into strips of metal screwed into the wall; an ornamental fireplace which is on hire purchase from the manufacturer.

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

24.

TUTORIAL 4 25. "In my opinion therefore, the law as to notice as it may affect purchasers of unregistered 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 Land Registration 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 agent telephones 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 that Colin, 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? 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.

33.

TUTORIAL 7 34. Examine the implications of the Landlord and Tenant (Covenants) Act 1995 for the assignment of covenants in leases. In the absence of express covenants in a lease, what are the implied obligations of the landlord? (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 both sign 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 that lease. The lease contained the following covenants (amongst others):

35.

36.

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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 of diversity of occupation? Contrast the respective roles of Wheeldon v Burrows and S. 62 LPA 1925. What is the difference between a covenant and an easement? 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 a motorway. 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. Lionel is 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 has often had to go on to the land retained by Lionel in order to carry these out.

39. 40. 41.

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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. 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? 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 in Federated 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 in Roake 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 expressly assigned.

45.

46.

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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 storage of 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 Igor is 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 have their 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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SOME EXAMPLES OF PAST EXAMINATION QUESTIONS

STUDENTS MAY TAKE ANY SET OF PROPERTY STATUTES INTO THE EXAMINATION ROOM. THESE MAY BE HIGHLIGHTED BUT OTHERWISE UNANNOTATED. ANSWER FOUR QUESTIONS 1. To what extent would you agree that the effect of the decision in Barclays Bank plc 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, the registered proprietor. Patricks solicitor has yet to send the registration documents to the Land Registry for registration. Patrick plans to build a housing estate 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 Patrick that 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, claiming that 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 a dilapidated 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 track leading 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 which encroached 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. Explain the 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 or any 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 excellent condition and did, in fact, execute a number of improvements such as
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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 makes no 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 they were 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 Beryl asking 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 to University 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 at University. 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 into by 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 discovered that 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 been laid 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 changes that 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 of Trustees Act 1996 was designed to remove. Outline the main provisions of the Act in respect of trusts of land.

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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. 1 (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 into position. (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. 2. 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) a covenant entered into in 1914 between the former owners of Cherrytree House and the neighbouring property, Limetree Cottage, which restricts the use of Cherrytree House to residential purposes only; b) 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, c) 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. 3. 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 (per Lord 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 a letter, 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. 5. 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 mutual understanding may depend on how the other elements are formulated and understood. (per Robert Walker L.J. Gillett v Holt [2000]). Discuss. 6. 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. 7. 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 failed to 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 their studies whether they can prevent the house from being sold. 8. 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 for storing 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, and Abel 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 unprecedented conveyancing 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 loan was 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 2002 were 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 or usurped 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 the beginning 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 his contribution 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 Building Society 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 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?

9. It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantors successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right. In Halsall v Brizell there were reciprocal benefits and burdens enjoyed by the users of the roads and sewers. (per Lord Templeman, Rhone v Stephens (1994) ). Explain how the doctrine in Halsall v Brizell (1957) operates as an exception to the rule that the burden of a positive covenant does not run to the covenantors successors. Internal Examiner: Rosalind Malcolm External Examiner: Professor Nigel Gravells

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LAND LAW 2004 (draft paper) 3 HOUR PAPER ANSWER FOUR QUESTIONS 1. Wendy, a widow, had a niece and a nephew. In 1990, her nephew, Ned was a young violinist who was at the beginning of his career. He wanted to set up a centre for musical appreciation, and Wendy suggested that he should use a cottage which she owned. She said to Ned You can use it as a venue for concerts and workshops and you can also live there for as long as you like. Do whatever work on it you think is necessary. Ned went to live there and borrowed 10,000 from the Bank to convert the garage attached to the cottage into a suitable acoustic room for musical performances. In 1996, Wendys niece Sophie was divorced. Wendy, who since her widowhood had felt very lonely, suggested to Sophie that she should move in with her and be her companion. Sophie did so and at first undertook some temporary work at a local school as a teaching assistant. However, Wendy enjoyed travel and as she wanted Sophie to accompany her on her trips, Sophie gave up her temporary job after the first school year ended. Wendy became devoted to Sophie and very dependent on her for companionship and often told her that she would leave her house to her in her will. Sadly, during a safari earlier this year in Africa, Wendy was eaten by a lion. A will made twenty years ago has been discovered amongst her papers which leaves all her property to a charity to support student travel. Advise Ned and Sophie.

2. The right to enjoy the land as a communal garden was clearly a right capable of subsisting as an easement provided that there was the necessary connection between the dominant and the servient tenement, as established in Re Ellenborough Park (per Latham L.J., Mulvaney v Jackson [2002]). Discuss with reference to the principles applicable to the determination of the question whether a right is capable of existing as an easement.

3. Bill has recently bought a property from Vic and is very upset when he moves in to discover that Vic has removed the following items: a greenhouse; a sundial; and, a loft ladder. Bill has also discovered a box containing some silver jewellery buried in the garden. Advise Bill as to: the legality of Vics actions in removing the items; the ownership of the box containing silver jewellery; and,
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whether he can object to a laser light display be a neighbouring pub which beams light across his garden and into his windows at night. 4. Pearl, Ruby, Amber and Ivory are quadruplets who jointly bought a property in 1985 in which to live together. Pearl married Abel in 1995 and Abel moved into the property with his wife and her sisters. Pearl and Abel had two children who also lived in the house. Sadly, last year Pearl was killed in a road accident. Ruby started a degree course two years ago but returns to the property during the vacations. Amber left the property to get married in 1996 but since her divorce last year has returned to live there. Ivory went abroad last year to take up a temporary job. She has met Cain whom she plans to marry. She has now written to her sisters to say that she wishes to sell the property and use her share to buy a new home for herself and her husband. Neither Ruby nor Amber wish to sell and Abel also objects stating that he and the children inherited Pearls share of the property under her intestacy and have a right to live there. Advise Ivory. 5. Vera, the registered proprietor of No 3 Acacia Avenue, Goldtown, entered into the following transactions: last year she told her son, Simon, that he could have a 5 year lease of the top floor of her house; in the autumn last year she dropped a note through the door of her neighbour, Nell, agreeing to allow Nell to pick the pears from the trees in Veras back garden for a long as she wanted as she never ate them; she agreed during a telephone conversation last summer with her other neighbour, Olive, that she (Vera) was responsible for the maintenance of the wall between their properties; five years ago she wrote to her daughter, Delia, telling her that she would have the right to buy No 3 Acacia Avenue at a favourable valuation if Vera ever decided to sell. On the 1st April 2004, Vera sold No 3 Acacia Avenue to Peter. Advise Peter to what extent (if any) he is bound by these transactions. 6. Explain the effect that the Land Registration Act 2002 has on the list of overriding interests previously contained in section 70 of the Law of Property Act 1925. 7. Examine the attitude of the courts to mortgagees using mortgages to gain collateral advantages. 8. Consider the distinctions between the enforceability of positive and restrictive covenants in relation to registered land. To what extent are these distinctions rational? 9. The only intention which is relevant is the intention demonstrated by the agreement the grant exclusive possession for a term at a rent
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(per Lord Templeman, Street v Mountford) Discuss with reference to the rules applicable to the determination of the question whether an agreement amounts to a leas or a licence.

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