Land Law Martin Dixon

The study of land law requires a sound grasp of certain basic distinctions and concepts.
These podcasts aim to elucidate these concepts with a view to making the study of this at times difficult subject more manageable. It is of course not possible to explain the whole of land law in 12 5 minute podcasts but it should be possible to begin to develop a general understanding of many of the key elements of the subject.
This first podcast which accompanies the first chapter will look at the fundamental buildings blocks of the land law system. We will be looking in the first part at the notion of property rights, and in the second at the concept of registered land.
(1) Property Rights In order to understand the distinction between proprietary, in rem rights and personal rights, also known as rights in personam, it is necessary to look at the question from various angles firstly, how does the right arise; secondly, what are the effects of the right, and in particular, who can be affected by the right; and thirdly, what sorts of interest tend to be proprietary? Generally speaking, the creation of property rights will involve some sort of formality written contracts, deeds, registration. Although as can be seen in later chapters this is not always necessary to the creation of property rights, there is a general policy that property rights ought to be accompanied by a degree of formality. A reason for this is that the consequences of creating property rights are wide-ranging, not only for the creator, but also for third parties, and as such a degree of caution and publicity is thought to be required.
A further distinguishing feature of property rights is their effects. Property rights are said to bind the whole world. They are not personal in that sense. This explanation of the nature of property rights oversimplifies the position there are some cases where third parties are affected by the existence of personal rights of course but generally property rights are identified by their ability to affect all third parties in the same way. Third parties are bound to respect the existence of the property right. Another way of thinking about this is to see that property rights attach to the thing itself rather than to a person hence the term in rem against the thing. They therefore affect all those who come into contact with the thing. Personal rights by contrast operate between persons.
Finally, property rights tend, because of the effects outlined above, to be of certain well-defined types. Lord Wilberforce in National Provincial Bank v. Ainsworth outlined the features that a right needs before it can be considered proprietary. He argues that rights can only be proprietary if they are definable; identifiable; capable of being assumed by third parties; stable and enduring. Thus if rights do not meet these criteria then they will not fall into the list of interests which are capable of being property rights.
This distinction between personal and property rights can seem elusive at times, but it is a crucial one. The importance of the distinction can be seen if the outcome in Street v. Mountford is considered. When reading this case, think about what difference classifying the interest in question as a personal right would have made. Despite the areas of potential confusion, however, you should keep this general distinction in mind as you continue through your studies especially when looking at leases, estoppel, licences and trespass.
(2) Registered Land
The concept of registration is a relatively new innovation in English land law, but it is the fundamental issue in modern land law. The specifics of how registration works are dealt with in Chapter 2. The concept of registration is however an important one to understand from the outset. The Land Registry is a public body whose job it is to keep a record of the rights that exist over land and their proprietor. Registration in English law is both a record of and confirmation of the existence of rights. It also protects registered rights against interference or destruction. On the other hand, it means that in many cases interests which are not registered will not receive such protection. The fact of registration or otherwise is of critical importance.
The registered land system is governed by the Land Registration Act 2002 and operates to the exclusivity of the rules on unregistered land. Land is either registered land or it is not. Registered land is land to which the title is registered. If land is registered then we know, firstly, the priority of rights is determined according to the 2002 Act; and secondly, that the doctrine of notice is irrelevant as it forms no part of the law relating to registered land.
In the next podcast we will look at registration in more detail and explain sections 28 and 29 of the Land Registration Act 2002. Todays key concepts: property rights and personal rights, and registration.
Chapter 2 - Registered Land

Essay Questions
(1) In 2007, Mary and Nina became the registered freehold proprietors of 1, The Glebe. Mary contributed 70% of the purchase price from her savings, Nina 30%. They later entered into an oral agreement with Ola that Ola would purchase a third of the property for 100,000. Ola paid the money and moved into one of the rooms but nothing else was done.
In 2009, Mary and Nina decided to sell the property to Paul without telling Ola and entered into a written agreement with Paul. Paul was then registered freehold owner of the property. Mary wants 70% of the proceeds of the sale, but Nina insists that she is entitled to half.
Ola meanwhile is very upset by the sale of the property as Paul will not allow her to go on living in the property. At the time when Paul entered into the written agreement with Mary and Nina, Ola was in hospital and her things had been put into storage elsewhere whilst she was ill. Paul had not been told about Ola and believes that she is not entitled to stay in the property.
Advise generally.
(2) What is meant by the mirror, insurance and curtain principles of the Land Registration Act? To what extent does the Act embody these principles?
(3). In 2011, Caroline, the proprietor of No. 23 Puzzle Passage, died leaving the property by will to David. Before Caroline died she decided to enter into a number of agreements with her neighbours to ensure that Puzzle Passage remained of the same character. She signed a covenant with her neighbour, Emily, that there would be no development of dwellings in Puzzle Passage. Both Caroline and Emily intended that this would bind any future owners of No. 23, but did not take any action beyond the written agreement. David wishes to build a cottage on his land for his Aunt to live in.
In addition, in 2007, Caroline granted Frankie a 5 year lease of an upstairs flat at No. 23. Caroline promised Frankie that if Frankie helped look after her as she was getting older that Frankie would have a home for life. Frankie did look after Caroline, but as she was a kind person, she did not think much of the promised home for life. David now wishes Frankie to leave.
Caroline, in 2008 had sold part of No. 23 to George. In order to get to the road George had to cross part of Carolines land. In 2009 George used to use the shortcut from his remaining land to the Main Road but in late 2009 he ceased to use it this way as another means of access became available to him. He now wishes to use it again, but David is complaining that he should not have to let George use it because there is no physical evidence of the shortcut that can be seen.
Advise David.
Multiple Choice Questions

Answer the questions below based on the facts of this short scenario. In 2003 the registered proprietor of a registered freehold estate, X, died and left all hisr property to A under his will. In 2005 it was discovered that in fact X had not purchased or been given the freehold estate he was simply pretending to be the freehold owner. A also granted a lease of 2 years to go into possession in 7 months time to B. They did not register this leasehold estate. In early 2004 A declared in writing that he would hold his entire property on trust for C. In late 2004 A sold his freehold estate to D. D became registered freehold proprietor.
Podcasts
Download Podcast The previous podcast in this series gave an introduction to the concept of registered land and gave some indication as to the importance of the concept of registered land in modern land law. This podcast is going to look more deeply at the issue of registration and the specific requirements of the LRA 2002. This Act attempts to provide a comprehensive modern regime of registration.
The policies behind the systems of registration and the aims of the LRA 2002 are not the subject-matter of this podcast although the general ideas behind registration are often the subject of essay questions and so it is worth familiarising yourself with this material. Instead, here, we will go through some of the specific statutory provisions of the 2002 Act to explain its structure. This should assist you in improving your handling of the statutory material something that many students neglect. Remember, most Universities let you have a copy of the statutory materials in your exam. It is therefore a great asset to be familiar with and used to handling the provisions in that format.
The LRA is split into 12 parts and 12 Schedules. The first part that we will look at is part 2. It deals with first registration. The events which will trigger a first registration are found in section 4. The most important are likely to be the transfer of the freehold estate and the grant of a lease for more than 7 years. There are others, however, and you should look through them. If one of these events occurs, as a result of section 6, there is a duty to register the
interest. If this is not done, as section 7 explains, then the transfer, grant etc will be, in the statutory language, void with regard to the legal estate. What this means in practice is that although the equitable interest will be transferred or granted, no such grant or transfer will take place with regard to the legal estate. This has potentially serious consequences for the rights holder.
Sections 11 and 12 then explain the effect of first registration. Registration itself has the effect of vesting the legal title in the proprietor. This will be subject to any pre-existing rights on the register, or any unregistered interests which override in Schedule 1. This means that the new owner of the legal estate will be bound by those rights that are already on the register, and by any rights which override. Nothing else will bind their title. This is the key idea behind registration.
Part 3 has the same function as part 2, but this time it is concerned with dealings with land that has already been registered. It also outlines the powers of the registered owner. Section 27, like section 4, describes the events which trigger registration. As above, the transfer of the legal freehold or the creation of a lease for more than 7 years will be the most common events, but you should make sure you know the other triggering events listed in section 27.
Sections 28 and 29, which explain the priority system for dispositions of registered land, are arguably the most important sections in the LRA. It is therefore useful to go through these in detail.
(1) Section 28
This is described as the basic rule. In fact, it is more common to deal with section 29. section 28 applies only where there is no valuable consideration given in the transaction. Donees, those who receive gifts, and legatees inheriting under a will will therefore be looked at under section 28 as they do not provide any valuable consideration.
In such cases, the application of section 28 means that the transferee will be bound by any property right which bound the estate before the disposition, whether or not that interest is registered.
(2) Section 29
Section 29 is the heart of the registration system. It tells us that where an estate is transferred or created in exchange for valuable consideration, the purchaser of the estate will only be bound by those interests which are either registered, or which override even though they are not registered. The list of interest which will override is found in Schedule 3 and includes (1) legal leases for less than, or equal to, 7 years; (2) the interests of those in actual occupation; and (3) certain legal easements.
Parts 2 and 3 then have established the system of priorities. Part 4 explains how to protect interests in another persons land. The mechanisms available are the notice , and the restriction. Notices register the interest in question, but not all interests can be the subject of a notice. Restrictions can be used to protect these unregistrable interests. Restrictions can be seen as instructions to the land registry not to register a transfer unless the conditions of the restriction are met. This is a common way of protecting the interests of beneficiaries under a trust.
These provisions together make the basic idea behind registration possible. In the next podcast, we will look at the position with regard to unregistered land and in particular the concept of land charges. Todays key concepts sections 28 and 29 of the Land Registration Act 2002 and the requirement of registration.
Chapter 3 - Unregistered Land

Essay Questions
1. 2. 3. The doctrine of notice still has a critical role to play in relation to unregistered land. Discuss. The system of registration by name is deeply flawed: registration of title is to be preferred. Discuss. Do you think that there is still room for a system of unregistered land in modern land law or should nationwide registration of title be made compulsory?

Answer the questions below based on the facts of this short scenario. In 1984 A purchased the freehold of No. 1 Main Street from BEF. In 1986 A discovered that B's predecessor in title, C, who had purchased their interest in the house in 1965, had not in fact purchased their interest from a freehold owner. In addition, A has now discovered that D claims to have entered into a contract giving him the option to purchase No. 1 Main Street with B in 1982. A did not know about this when he bought the property. He had done a search of the Land Charges Register under the name of BFF which stated that there was no interest binding B's interest. A search under BEF has revealed no registration of D's interest either. In fact, the interest is registered under BEE. In 1987 A declared that he would hold the property on trust for G and H, his children. He sold the property in 1989 to J for a good price. J knew about G and H's interests but will not let them live in the house. D still wishes to buy the house. A warned J of D's interest and so J, being careful, ran a check on the Land Charges Register for BEF, as well as against A's name, which did not reveal any
interests. A few days after D ran this check, A entered into a contract to grant a 10 year lease to K, but did not in fact create any deed. K entered his interest under this contract on the Land Charges Register.
Podcasts
Download Podcast In the previous podcast in this series we considered the rules relating to registered land. In particular we looked at sections 28 and 29 of the LRA 2002 and the requirement of registration. In this podcast we will be considering unregistered land and in particular we will look at the land charges system. When looking at unregistered land, it is often useful to think about the registered land system to compare them.
The unregistered land system will eventually, it seems, become obsolete. To date, about 90% of land in the UK is registered and with compulsory registration in place this figure will increase. The advent of e-conveyancing under section 93 Land Registration Act 2002 will also affect this. It may still on occasion though be necessary to consider the rules for unregistered land. These rules, unlike the 2002 system, do not rely on registered title. That is the key difference. But there is a register that forms a critical part of the system the land charges register. This is a register of third party interests in land and the rules relating to this register can be found in the Land Charges Act 1972. We will be considering the sorts of interests that should be registered as land charges, the process of registration and searching the register, and finally the effect of such registration.
(1) What sorts of interests should be registered as land charges?
The first thing to remember is that in the case of unregistered land only equitable interests need be registered. Legal interests (with the exception of the puisne mortgage) bind automatically. In addition not all equitable rights are registrable as land charges and instead will either be overreached where appropriate or may bind by virtue of the old doctrine of notice. We will not go into these mechanisms here but it is important to remember that the land charges system is by no means a comprehensive system of registration even as far as equitable interests are concerned.
Section 2 of the 1972 Act defines the 6 classes of land charge and you should familiarise yourself with these. Remember, when answering problem questions it is important to be specific so you will want to make clear exactly which statutory provision renders the interests you are considering registrable. Some of the most important can be found in Class C class C(iv) for example is concerned with estate contracts such as equitable leases. Options to purchase and rights of pre-emption are also contained within this Class. Class D(ii) is concerned with registered freehold covenants.
(2) The mechanics of registration as a land charge
The land charges register uses a system of registration by name where interests are registered against the name of the estate owner. This means that when searching the register a purchaser must search for the name of the current and previous estate owners. As you can imagine, this can cause a lot of practical difficulties. In particular, a purchaser will be detrimentally affected if he does not search against the correct name. This is because although the official search report will be conclusive, it will only protect a purchaser if he has searched for the correct name, postcode etc.
A further potential problem relates to the timing of searches. Often a purchaser will not have access to the title deeds and thus to the name of previous owners until a sale has been agreed. As a result section 24(1) gives the purchaser an escape route if he did not in fact know of a land charge which was later revealed to him following a search. In addition, section 11(5) gives the purchaser 15 days from his official search to complete the purchase. During this priority period any interest which is entered as land charges will not bind him.
(3) The effect of registration
Section 11(5) apart, the fact of registration of an interest as a land charge means that the purchaser will be bound by that interest as long as the interest is registered against the correct name. The Land Charges Act deems registration to be constitutive of actual notice and means the interest is binding whether or not the purchaser in fact knew about it. Where an interest is registrable, entry as a land charge is in fact the only way to ensure that it binds a purchaser.
The process of registration of land charges therefore has crucial consequences in the case of unregistered land. In the next podcast we will consider co-ownership interests in land. Todays key concept: land charges.
Chapter 4 - Co-Ownership
Essay Questions
(1) In 2003 Anna, Brian, Charles and David acquired the freehold title to No. 6 Labyrinth Lane as beneficial joint tenants. 2 years after the move, Brian and Anna, who had been in a romantic relationship, fell out, and Brian decided to move away. He decided to sell his share in the property to Elvis. Brian and Elvis, by written agreement, agreed that Elvis would purchase Brians interest in the property for 50,000 and that once the money was received there would be a re-conveyance of the property into Anna, Charles, David and Elvis names. This re -conveyance never took place although Elvis paid Brian the money. Brian has now moved out and Elvis lives in the property.
After Elvis had moved in, Charles was taken ill whilst on holiday and he died. He had left all his property in his will to his darling sister Mary. Following Charles death, Anna and David as the remaining original owners agreed that the current situation was no longer working and orally agreed that they would split their shares in the property and then sell it in order to maximise their financial investment as neither of them were living there anymore.
No further steps were taken following this agreement, and David, who is in severe financial difficulties due to the failure of his horse riding business, has taken out a mortgage over the property without the consent of the other owners with No Luck Bank. The Bank has been registered as proprietor of a charge over the property as David forged the others signatures. David has begun to default on his payments and is also suffering depression as a result of the death of his favourite horse, Flossie. The Bank seeks to recover their investment by selling the house, but Anna, who has now begun living with Elvis, and Elvis, do not want to sell as they wish to remain in No. 6. This desire is made all the more pressing by the fact that last year Anna and Elvis had a baby, Gene, and they do not wish to move, as there is a very good school in the area.
Advise Anna and Elvis.
(2) The common intention constructive trust is not based on intention, but on what the court thinks is fair. Discuss.
(3) Does the law relating to the severance of joint tenancies need to be reformed?

Answer the first five questions below based on the facts of this short scenario. A and B purchased No. 1 Main Street as beneficial joint tenants in 2003 and were registered as freehold proprietors. The bulk of the purchase money was provided by A. In 2005 they granted a mortgage to ABC Bank. In June 2007 A was declared bankrupt. His trustee in bankruptcy decided that sale of the house was the best way to maximise the assets available to his creditors and so he applied to the court for sale until Section 14 TLATA. B does not want the house to be sold. Her children, one of whom is about to sit his GCSEs, are well settled at the local school and the money which will remain after sale would not be enough to purchase a similar house in the area. In addition, her mother is terminally ill and the family need easy access to the hospital nearby. She also believes it is relevant that A has been suffering from depression for some time and feels that any move would make this condition worse.
Podcasts
Download Podcast The previous podcast in this series outlined the concept of land charges in relation to unregistered land. This podcast begins to look at the substantive rights that form the body of proprietary interests. Today we will look at co-ownership interests and in particular the issues of severance and sections 14 and 15 of Trusts of Land and Appointment of Trustees Act 1996.
Co-ownership is an essential concept in modern land law. This can be seen in Chapter 4. Where there is more than one registered freeholder or leaseholder on the land register, we know how this legal title is held as joint tenants at law. But we also need to know how this is held in equity.
Here we will look at two issues. Firstly, where the co-owners hold as joint tenants in equity, how do we know when this has been severed so that they hold as tenants in common? Secondly, how are disputes between legal freeholders regulated in cases of co-ownership?
(1) Severance
Severance is the term given for the transformation of a joint tenancy in equity to a tenancy in common. The key result of this is that the right of survivorship no longer applies. When will severance take place? There are four methods: (1) mutual agreement; (2) mutual conduct;
(3) written notice under section 36(2) LPA 1925; and finally (4) acting on your own share in a manner inconsistent with the continuation of the joint tenancy.
What does this mean?
Mutual agreement. The joint tenants can together agree to sever the joint tenancy. In problem questions, look out for an agreement to split, agreements referring to shares, and to agreements where one joint tenancy agrees to purchase the others half. These are all indicators of an agreement to sever. Mutual conduct. This is quite rare and there are not many successful cases of this type. The parties must have acted in such a way that clearly they no longer intend a joint tenancy. Physical partition of the land would be an example of this, as would the drafting of a mutual will. Crucially, their conduct must show an immediate intention to sever, not a future intention to do so. Written notice. This is completely unilateral. The other tenant does not even have to have read the notice, as long as it can be proved that it was sent to an appropriate address. This can be seen in Kinch v. Bullard. Acting on your own share. This is another unilateral method of severance. This includes selling your share, granting a mortgage over your share, or falling into bankruptcy. Any attempt to deal with the legal title without the consent of the other legal owners will have the same effect. When you sever a joint tenancy in one of these ways, it will be split evenly unless there is an agreement to the contrary, and if for example there are two joint tenants, they will become tenants in common with 50:50 shares.
(2) Trusts of Land and Appointment of Trustees Act, Sections 14 and 15
What happens when joint owners are in dispute? How can this be resolved? The answer is that a joint owner or anyone else with an interest can bring an action under section 14 of the 1996 Act. This is an action asking the court to order, for example, that the property be sold, or physically split. The court has a wide power to make an appropriate order under the section.
When the dispute is brought to court it must be resolved in accordance with section 15 of Trusts of Land and Appointment of Trustees Act. This section contains a non-exhaustive list of considerations that the court will take into account. (1) The intention of the settlor when the trust was established. (2) The purpose of the trust property now. (3) The welfare not just the existence of any children who use the property as their home. (4) The interests of any creditors.
Normally the wishes of the equitable owner will also be taken into account. But be aware: if one of the joint owners is bankrupt and the application is made by his trustee in bankruptcy, then section 15 does not apply and instead section 335A of the Insolvency Act 1986 will apply where the needs and wishes of the bankrupt equitable owner are not considered.
By this means, disputes between co-owners can be resolved. In the next podcast we will be looking at the operation of the 1996 Act in relation to successive interests. Todays key concepts: severance and sections 14 and 15 TLATA.
Chapter 5 - Successive Interest in Land

Essay Questions
1. Is the operation of settlements under TLATA 1996 an improvement on the mechanism contained in the Settled Land Act 1925? 2. 3. LATA 1996 solves the problem of the stagnation of land over which there are successive interest. Discuss. The limitations on the powers of the tenant for life under the Settled Land Act 1925 are more formal than substantive. Discuss.

Answer the first five questions below based on the facts of this short scenario. In 2003, A decided to set up a trust over No. 1 Main Street to ensure that family were provided for from his large estate. He wanted to ensure that his eldest son would be a tenant for life and that his eldest child would then become the freehold owner of the estate once his father died. Once this trust had been set up, with ABC Bank as trustees, and A had died, some disputes arose between A's eldest son, D and his eldest child, E. A had not specified in the trust documentation how any disputes should be dealt with. D believes that the estate should be split and sold in parts and the money then invested to provide both him and E with future income. E wishes to keep the estate as a whole as he wishes eventually to live there. The land is registered land.
Podcasts
Download Podcast In the previous podcast of this series we looked at co-ownership interests and the issues of severance and the operation of TLATA to concurrently owned interests. In this podcast we will be considering co-ownership interests of a different kind, successive interests. In particular we will consider the operation of the 1996 Act in relation to successive interests and will outline some of the key differences between the old rules contained in the Settled Land Act 1925 and those applying to trusts for sale, and those rules in the 1996 Act.
Prior to the introduction of the 1996 Act, the law in this area was outdated and was being made to work, rather than being reflective of the reality of our modern land law system. The introduction of TLATA was warmly welcomed and was more reflective of the reality of the modern family property structure. This Act now governs all attempts to create successive interests in land. The strict settlement is now abolished for all new successive interests.
In this podcast we will examine the provisions of TLATA and explain the key differences between this and the Settled Land Act 1925 in particular. We will consider the role of trustees, the restriction and management of the trustees powers, and the position of purchasers of land over which there are successive interests.
(1) The role of trustees and the management and restriction of their powers. Under the Settled Land Act, the tenant for life had legal title to the land. This was reflective of his current entitlement to make use of the land, and left him in effective control of the land. This caused some considerable problems, especially on the death of the life tenant as title was required to be conveyed with the associated cost and complexity. Under TLATA 1996 legal title vests with the trustees and will do so through the remainder of the trust. This means that if a trustee dies, the remaining trustees will retain legal title through the operation of the right of survivorship.
The trustees are said as a result of section 6 to have all the powers of an absolute owner. They can sell, charge or lease the property unless there is another restriction on their powers contained in the Act or in the terms of the trust itself. This can be seen in Section 8. An example of such a restriction would be a requirement that the trustees obtain the beneficiaries consent to any transaction. This gives the settlor control over the management of the trust, but it also ensures that unless any restriction is explicitly imposed, the trustees are free to manage the trust in accordance with the best interests of the beneficiaries. Thus, when compared with the Settled Land Act, it is clear that the operation of the trust will be smoother. The trustees under TLATA are given the task also of managing the occupation rights under the trust and ensuring that any beneficiary entitled to immediate possession of the trust property is compensated where appropriate if they are not able to occupy property where that is the purpose of the trust. This can be seen in sections 12 and 13.
Furthermore, the trustees are also able to delegate their powers. Crucially, these powers can be delegated to a beneficiary so meaning that a large trust corporation for example, whilst retaining overall control of the trust, is able to temporarily leave control to a beneficiary where appropriate. This gives a large degree of flexibility to the management of the trust.
(2) The position of purchasers of land over which there are successive interests
TLATA brings the position of land with successive interests binding it into line with all other trust property. A purchaser will only be bound by any equitable interests in the property if those interests are not overreached and they are protected by actual occupation such that they are overriding interests. A restriction may also be placed on the register although this is also the case with the older forms of trust under the SLA or a trust for sale. This means that all trust land can be dealt with in the same way by purchasers and the same enquiries would be required.
In the next podcast we will be discussing leases and in particular the key requirements of exclusive possession, a fixed term, and rent. Todays key concept: TLATA 1996 and successive interests.
Chapter 6 - Leases
Essay Questions
(1) In 2008 Brian, the new registered freehold owner of No. 16 Labyrinth Lane, and Florence, a writer of romantic fiction, entered into an agreement that Florence could live at No. 16 Labyrinth Lane for 2 years at a rent of 500 a month. This agreement was called the Licence Agreement. In this agreement Florence agreed that Brian would be able to enter the property at any time to carry out repairs, and also that he could access the study from time to time without notice as he was storing some papers there. Brian has been using the study more than expected, at least one a month, and whenever he has come into the property he has noticed that Florence does not keep the kitchen tidy and has tidied up for her.
In 2009, Brian decided that No. 16 was no longer providing a good return on his investment and decided to sell the property to his neighbour, Alan. At this time Alan was aware that Florence lived in No. 16 and was happy for her to remain as long as she kept on paying the rent.
Barely a month after Alan purchased the freehold interest and was registered as proprietor, Ginny, a penniless poet, broke into the shed at the bottom of the garden of No. 16. Alan refuses to evict Ginny as they are close friends. Ginny
has broken into the shed and set up camp there in protest against trashy romantic fiction which she believes is taking away her income. In particular, she objects to Florences most recent work, A Poets Revenge which not only reached no. 1 in the best-seller list, but which also pokes fun at female poets. In the agreement Florence entered into with Brian it was specifically stated that the shed was to be used for the storage of Florences collection of antique clocks. In order to set up her tent in the shed Ginny has moved a few of these clocks around. Florence wishes to have Ginny removed from the shed. To add to Florences woes, Alan no longer wants to allow her to live in the house as he would like to let Ginny live there for free instead.
Advise Florence. (2) [T]he agreement constituted a tenancy. This notwithstanding the fact that the trust had only a limited interest in the subjects. Lord Slynn, London & Quadrant Housing Trust v. Bruton. Discuss. (3) The decision in Berrisford v. Mexfield has so radically altered the operation of the certainty of term rule that it would have been better to simply have overruled the decision in Prudential Assurance and to have started again. Discuss.

Here you should outline the main effect, role etc of the provisions below. This is designed as a guide to the most important provisions, and as a means to improve your recall of the statutory provisions.
Law of Property Act 1925, section 52 Law of Property Act 1925, section 14 Land Registration Act 2002, Schedule 3, paragraph 1 Landlord and Tenant (Covenants) Act 1995, section 5 Law of Property Act 1925, section 146
Here you should attempt in one or two sentences to outline the main points to be taken from these cases and also 3 or 4 key words with their subject matter. This should assist in revision.
Bruton v. London & Quadrant Housing [2000] 1 AC 406 Berrisford v. Mexfield [2011] UKSC 52 Street v. Mountford [1985] AC 809 London Diocesan Fund v. Avonridge [2005] UKHL 70 Walsh v. Lonsdale (1882) LR 21 Ch D 9
Can an equitable lease arise through the operation of proprietary estoppel? Justify by reference to the case law.
Show Answer
Is it necessary to show privity of estate to ensure that the benefit and burden of a leasehold covenant will run for leases entered into on or after 1 January 1996?
Show Answer
What formalities are required for the creation of leases of less than 3 years to go immediately into possession?
Show Answer
What is meant by a right of re-entry?
Show Answer
Podcasts
Download Podcast The previous podcast in this series finished our discussion of multiple ownership with a focus on the operation of TLATA to land with successive ownership interests. We now turn to the leasehold estate, one of the two estates in land, and in particular we are looking at the key issues of exclusive possession, term and rent.
A lease is an estate in land that confers exclusive possession on the leaseholder. Its elements, as defined in Street v. Mountford are exclusive possession for a term at a rent. But these elements have become less certain recently. Instead now it may be better to consider the leasehold as exclusive possession for a limited period. This podcast will examine what exclusive possession means. In the second part of this podcast we will look at the requirements of rent, and of a defined term. (1) Exclusive possession
Exclusive possession is often seen as the feature that will distinguish a lease from a licence. This makes it important to know what is meant by exclusive possession. The first thing to note is that the terms used by the parties in their agreement will not be determinative of the reality of that agreement. An agreement called a licence agreement may in fact create a lease. Similarly a lease agreement does not need to use the words exclusive possession in order to be the foundation of a lease. Instead this is a question of fact. Does the occupier in fact have a right to exclusive possession conferred on them?
Generally speaking if the landlord provides services to the occupier, this will be considered a licence because services, such as cleaning, are inconsistent with exclusive possession. Similarly, it will be inconsistent with exclusive possession if the landlord keeps keys to enter and leave at will.
What happens where there is more than one occupier? How can this be a lease? This depends on whether the occupiers together can be said to have exclusive possession of the whole so that together they are joint owners of the lease. Again this will depend partly on the issue of services. Unlike single occupier cases however it must also be shown that the four unities are present such that there can be joint ownership of one interest. For more on this, see Chapter 4. If these are not present, there cannot be a lease of the whole. A third alternative would be that each occupier has a lease of their own room. In order to determine this it must be shown that the occupier has exclusive possession of that room. Can he keep his flatmates out as well as the landlord? This may be difficult to show.
The final issue is the notion of sham agreements and mere pretence. In Antoniades v. Villiers it was highlighted that landlords will sometimes include the provision of services in the lease that they never in fact intend to provide. In such cases the court will consider the reality of the situation and is likely to conclude that there is a lease despite the terms of the agreement. (2) Certainty of term
Whilst certainty of term in one sense is still a requirement for a valid lease, Berrisford v. Mexfield a 2011 decision of the Supreme Court has altered how we think about this. The court explains that whilst the end point must still be certain, if the lease is drafted in such a way that this is not the case the lease can be treated as a 90 year lease determinable on death and any other provision for determination made in the lease. The case does not get rid of the requirement that the term be certain, at least formally, but it does alter its application. It will be worth reading this case if you have not done so already. (3) Rent
Rent is not required for a lease. It is possible to have a gratuitous lease as Ashburn Anstalt v. Arnold makes clear. This is highlighted by section 205(1)(xxvii). Rent may be useful, though, because firstly it will be evidence of an intention to create a legal relationship and secondly in the case of a periodic tenancy it can be used to measure the length of the tenancy. The next podcast will discuss easements. Todays key concepts: exclusive possession, term and rent.
Chapter 7 - The Law of Easements

Essay Questions
(1) In 2009 Sarah, an artist, the registered freehold proprietor of No. 14 Labyrinth Lane, entered into a contractual agreement with Alan, the registered freehold proprietor of No. 16 Labyrinth Lane, which allowed her to put up a sign on the wall of No. 16 advertising her art gallery which was on the other side of town. Now, in 2011, Alan has decided to sell the property to Tony. Sarah has mentioned this to her lawyer friend who has advised her to enter a notice of her easement on the Register in order to protect her right to put up the sign if Alan does indeed sell the property.
Sarah has contacted you with a number of questions. Advise her.
Is Sarahs lawyer friend right that Sarah should attempt to protect her right through the entry of a notice? If this cannot be done, or if this is not the best way for Sarah to proceed, is there any other way that Sarah can ensure that Tony will have to let her continue putting the sign up on the wall of No. 16?
Sarah has also become anxious that the agreement she has with the owners of No. 12 Labyrinth Lane that she is able to swim in the pool in their back garden may be vulnerable if the freehold proprietors of No. 12 were to sell their property. She is therefore wondering if there is any way to protect this right. The agreement is an informal one, and she is just allowed to come round whenever she wants to use the pool.
Advise Sarah on the possibility of ensuring that she will be able to keep using the pool next door if No. 12 is sold.
(2) In 2004, Laura, became the registered freeholder proprietor of the entire plot between Puzzle Passage, Walkers Way and the Main Road. Within this plot there was the large house, No 1 Labyrinth Lane, Shell Cottage (No. 1A Labyrinth Lane), and No 3 Labyrinth Lane, the original gatehouse. Laura preferred to live in the gatehouse, working in No. 1 and getting there by way of a gravel path across the land from East to West. She occasionally used to use the gravel path which finished in a gate to get to the Main Road also.
In 2005, Laura sold the gatehouse property to Mary and put up a high fence between the two properties. In the same year Laura permitted Ned to move into Shell Cottage for free whilst he looked for a new house in the area. She agreed that he could store his car in her one-car garage as she did not have a car. Mary also used to use the coal shed in Shell Cottage to store her coal. Eventually in 2006, Laura and Ned agreed that Ned would buy Shell Cottage. Ned became registered proprietor of the property.
In 2008, Laura died and left all her property to her brother Oliver by will. Oliver has moved into house No 1 and is now trying to prevent Ned from storing his car in the garage. He wishes to continue using Neds coal shed to store coal. Mary has also become sick of having to walk the long way round to the Main Road and would like to use the gravel path to get to the Main Road from No. 3.
Advise Ned and Mary.
(3) Should the rules relating to easements be replaced by the notion of land obligations?

Law of Property Act 1925, section 62 Prescription Act 1832, section 2 Land Registration Act 2002, Schedule 3, paragraph 3 Land Registration Act 2002, section 27 Law of Property Act 1925, section 205(1)(ix)
Re Ellenborough Park [1956] Ch 131 Wright v. Macadam [1949] 2 KB 744 Platt v. Crouch [2004] 1 P & CR 18 Wheeldon v. Burrows (1879) LR 12 Ch D 31 Moncrieff v. Jamieson [2007] 1 WLR 2620
Is it possible to expressly exclude the operation of the rule in Wheeldon v. Burrows?
Show Answer
Which section of the Prescription Act 1832 specifies that 20 years' use without interruption will be enough to show that a prescriptive claim has been acquired?
Show Answer
Podcasts
Download Podcast The previous podcast in this series discussed the substantive requirements of the lease. This podcast discusses easements and in particular the creation of implied legal easements. For more information on the requirements of easements, see Chapter 7. An easement is an interest in anothers land which allows you to do something on anothers land, a positive easement, such as a right of way, or, which allows you to prevent the other from doing something on his land, a
negative easement, such as the right to the flow of water through a defined channel. Easements are property rights. These rights can be created expressly in formalised writing through a deed and in order to be legal easements they must be entered as the subject of a notice. But they can also be created impliedly. Implied legal easements (i.e. those implied into a deed) will be an overriding interest under Schedule 3, para 3, Land Registration Act 2002.
There are four methods of implying easements (1) Easements of necessity (2) Common intention (3) Rule in Wheeldon v. Burrows (4) Operation of section 62 LPA 1925 In this podcast we will go through each of these methods and explain in outline how they work.
(1) Easements of necessity
An easement of necessity will be implied into a transfer where one part of the land would otherwise be completely inaccessible. For example, A transfers title to half of his land to B. A cannot now reach his land. A right of way will be implied in As favour over Bs plot. Similarly, if Bs land would have been left inaccessible an easement would be implied over As land. This method therefore applies both to implied gran ts and reservations. The land must however be completely inaccessible. Even access by river only will prevent the implication of an easement of necessity, as can be seen in Manjang v. Drammeh. (2) Common intention
Similarly, easements can be impliedly reserved or granted if this gives effect to a common intention as to the way in which land was going to be used. For example, in Wong v. Beaumont Properties the parties intended on transfer that the basement would be used as a restaurant. This requires adequate ventilation. Since this could only be achieved by passing air through the reserved property, an easement was implied. In order that the easement be implied in this way, a clear and certain common intention must be identifiable, not just a vague plan. The remaining two methods, the rule in Wheeldon v. Burrows and the rule in section 62 Law of Property Act 1925, are more contentious. They can also only be used to impliedly grant easements. (3) The rule in Wheeldon v. Burrows An easement will be implied if, before the transfer, the previous owner used the land in such a way as to amount to a quasi-easement. For example, he might cross his own land to get to the road. This is a quasi-easement. If this easement is necessary to the reasonable enjoyment of the land and was also continuous and apparent before the transfer, then it will be granted as an implied easement.
(4) Section 62 Law of Property Act 1925
The final method of implied grant of an easement is through the operation of section 62 LPA 1925. The rule means that if prior to the grant of the title of part of the land to B, that land was occupied by B and B was permitted to use the land in the way that was akin to an easement, then on the transfer of the title to the land, the permission will elevate into an easement.
This is certainly the orthodox explanation of how Section 62, works but in Platt v. Crouch it was suggested that prior diversity of occupation was not required. If this is the case, and the comments were not obiter in Platt v. Crouch, then the interaction between Wheeldon v Burrows and section 62 becomes difficult and will often be the subject of a problem question. In the next podcast we will look at restrictive covenants and in particular the effect of sections 78 and 79 Law of Property Act 1925. Todays key concept: implied easements.
Chapter 8 - Freehold Covenants

Essay Questions
(1) In 2004, Laura, became the registered freehold proprietor of a plot between Puzzle Passage, Walkers Way and Main Road. In 2005 Laura sold the gatehouse, No. 3, but retained the rest of the land now comprising Nos 5, 7, 9, and 11. She decided that she would construct four houses on the plot and sell these off. Houses 5, 7, 9 and 11 were duly constructed. Laura retains the title to No. 11.
In 2006, Laura transferred freehold title of No. 5 to Paul. Paul covenanted not to build outbuildings and to repair the fence between No. 5 and No. 3. 3 months later, Laura transferred the title to No. 7 to Queenie, and to No. 9 to Ronald. Both promised in the deed of transfer not to build outbuildings on their property.
In 2007, Paul entered into an agreement embodied in a deed with Queenie that he would not keep cats in his house, as Queenie was violently allergic to cats. 2 years later, Paul transferred the freehold title to Ben, who became registered proprietor. The following year Queenie transferred her property to Alison. Recently, Ben has started to keep cats in the property which has caused Alisons dog to get very nervous. Alison wishes to prevent Ben from keeping cats in No. 5. The fence between No. 5 and No. 3 has also started to deteriorate,
much to Lauras displeasure. Ronald is also annoyed that Ben has constructed a stone hut in his back garden which Ronald believes is ugly and reduces the value of the houses in the area.
Advise Alison, Laura and Ronald.
(2)
(A) In 2004, The Flamingo (a nightclub), was set up at No. 15 Labyrinth Lane. The Flamingo is owned by Good Night Out Enterprises who are the registered freehold proprietors of No. 15. When Good Night Out Enterprises purchased No. 15 in 2004 from Minnie they did not know that Minne had earlier entered into a covenant with Nestor, the registered freehold owner of No. 10 Labyrinth Lane, that Minnie would not operate a nightclub at No. 15. Nestor at this time, although registered owner of No. 10, slept at No. 15 as he worked for Minnie as a night-time security guard. When Good Night Out Enterprises bought the property, Nestor stayed on in the property as a bouncer and slept above the club. This arrangement continued for 6 years. In late 2010, Nestor sold No. 10 Labyrinth Lane to Poppy. Poppy is very unhappy with the presence of the Flamingo in the area and wishes to force Good Night Out Enterprises to stop running the nightclub. (B) To add to Good Night Outs woes, Florence, the licensee resident of No. 16, intends to bring an action against Good Night Out in nuisance, claiming that the nightclub makes excessive noise which is disturbing her sleep.
(C) In addition, Nestor is now arguing that as he had been paying a 15 a month charge to Good Night Out for his upstairs flat, that he has a lease over the property which binds Good Night Out. Good Night Out had agreed with Nestor that they would not enter the flat without his permission in order to protect his privacy.
Advise Good Night Out Enterprises.
(3) Should the law relating to freehold covenants treat positive and restrictive covenants in the same way?

Law of Property Act 1925, section 79 Law of Property Act 1925, section 78 Land Registration Act 2002, sections 28 and 29 Law of Property Act 1925, section 56
Law of Property Act 1925, section 1(2)
Rhone v. Stephens [1994] 2 AC 310 Federated Homes v. Mill Lodge Properties [1980] 1 All ER 371 Tulk v. Moxhay (1848) 41 ER 1143 Elliston v. Reacher [1908] 2 Ch 374 Smith & Snipes Hall Farm v. River Douglas Catchment Board [1949] 2 KB 500
What is the effect of section 79 Law of Property 1925?
Show Answer
Under which Class must the burden of a restrictive covenant be registered in cases of unregistered land?
Show Answer
Podcasts
Download Podcast The previous podcast in this series discussed easements and the methods of impliedly creating an easement. This podcast will look at restrictive covenants, or freehold covenants. In particular we will be considering the operation of sections 78 and 79 Law of Property Act 1925. For more information on the sorts of interests that can be freehold covenants, see Chapter 8.
The benefit of a restrictive covenant is an equitable interest in freehold land belonging to another. It allows the beneficiary to prevent the freeholder from using his land in a certain way. For example, a restrictive covenant could prevent a freeholder from using his land for trade purposes, or could limit the number of dwellings that could be built on the land.
They arise from covenants, i.e. promises made by deed. Such interests can attach to the land and thus bind a purchaser. They should be entered as a notice on the register.
The ability of these covenants to pass with the land is complex and the operation of the relevant rules is governed and influenced by sections 78 and 79 of the LPA 1925. These statutory provisions are however quite difficult to understand and cause much difficulty. Despite this, it is important to try to get to grips with them and this podcast should help you do that.
Section 78
Section 78 is concerned with the benefit of a restrictive covenant. It can have the effect of annexing the benefit of the covenant to the benefitted land so that a purchaser from the covenantee can also take advantage of the covenant. It was decided in Federated Homes v. Mill Lodge Properties that section 78 means that the benefit will be annexed to each and every party of the benefitted land as long as that land can clearly be identified from the covenant itself and the land is capable of being benefitted by that covenant. The benefit of the covenant will run both at law and in equity. The operation of this section can however be expressly excluded. Section 79
Section 79 by contrast is concerned with the burden of the restrictive covenant. In order to run with the land, it must be intended to run with the land. Section 79 introduces a presumption that this intention exists. This presumption can be rebutted by evidence of a contrary intention. The section says that unless a contrary intention is expressed, [the restrictive covenant will] be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title under him.
This makes it much easier to demonstrate that the burden of a restrictive covenant should run with the burdened land. The operation of this section can however also be excluded, either expressly, or impliedly.
The overall affect of these two sections has been to make the running of the benefit and the burden relatively straightforward, but they do operate in different ways. Section 78 annexes the covenant to the land unless its operation is excluded. Section 79 merely introduces a presumption of an intention that the burden should attach to the land. Thus the scope of section 78 is wider. Section 78 has the effect of meaning that the subsequent purchaser need not have the same title as the original covenantee. Section 79 has not been interpreted in this way. When you are looking at this topic, it will be worth thinking about whether sections 78 and 79 should be treated differently like this. In the next podcast we will be considering licences and in particular the different kinds of licences. Todays key concepts: sections 78 and 79 Law of Property Act 1925.
Chapter 9 - Licenses and Proprietary Estoppel
Essay Questions
(1) In 2008 Nestor, the registered proprietor of No. 10 Labyrinth Lane, started letting Oscar live in the house whilst he occupied No. 15 in connection with his work. There was no formal arrangement between them but Nestor promised Oscar that he didnt need to worry about saving up to buy his own house because Nestor would n ot let Oscar down and would make sure he had a home. Oscar started slowly to do up No. 10 and Nestor happily stood back and allowed him to do this. In total, Oscar spent 50,000 doing up the property to a very personal design. In doing so he spent his savings which he had previously thought to use as a deposit on the house.
In late 2010 Nestor sold the freehold title of No. 10 to Poppy. Nestor had asked Oscar to make sure that he was not in the house when Poppy came to visit. Oscar went away for the weekend and Nestor hid some of Oscars things. He did not however move the things in the bathrooms, claiming that they were his own and that no one else had any interest in the property. Poppy was satisfied with this and did not make any further enquiries. She purchased the freehold property.
Poppy has now discovered that Oscar wishes to live in the property still and that he is claiming that Nestor promised him an interest in the property.
Advise Poppy on the likelihood that she will have to give effect to any right which Oscar may have.
(2) Should contractual licences ever be considered property rights? (3) I should say at once that the respondents to the appeal did not contend that this Houses decision in Cobbe v. Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 (Cobb) has severely curtailed, or even virtually extinguished, the doctrine of proprietary estoppel (a rather apocalyptic view that has been suggested by some commentators). Lord Walker, Thorner v. Majors [2009] UKHL 18 at para. 31.

Answer the following five questions below based on the facts of this short scenario. A, the proprietor of No. 1 Main Street, agreed with B that B could enter his land in order for B's children to play on A's land. B's children were playing on the land when C came to look round. A sold the property to C and B now wishes for his children to be able to play on C's land as before. A had also entered into a written agreement with D that D could use one of A's garages to store some of his things in from time in time in return for 50 a month. The agreement was to last for 20 years. D wants to continue with this arrangement with C and believes that he is entitled to.
Land Registration Act 2002, section 116 Law of Property Act 1925, section 205 Law of Property (Miscellaneous Provisions) Act 1989, section 2 Law of Property Act 1925, section 1(2) Land Registration 2002, Schedule 3, paragraph 2
Thorner v. Major [2009] UKHL 18 Ashburn Anstalt v. Arnold [1989] Ch 1 Cobbe v. Yeoman's Row [2008] UKHL 55 King v. David Allen Billpostings [1916] 2 AC 54 Lloyd v. Dugdale [2002] 2 P & CR 13
Must the detriment suffered by a claimant in cases of proprietary estoppel be motivated by the assurance?
Show Answer
What was the detriment suffered in Gillet v. Holt?
Show Answer
Podcasts
Download Podcast In the previous podcast in this series we looked at sections 78 and 79 LPA 1925 in relation to restrictive covenants. In this podcast we will be discussing licences. In particular, we will be looking at the different types of licences. For the rules relating to estoppel, see Chapter 9. This chapter also discusses the constructive trust which can arise if a purchaser takes land expressly subject to a licence.
Licences are permissions to be on land. They are, at their root, the permission that turns a visitor to land from a trespasser into a legitimate visitor. Licences are personal rights. In fact, asking whether licences are proprietary is a contradictory question. Understanding the different types of licence should help make this clear. These are:
1. 2.
Bare licence; Contractual licence;
3.
Licence coupled with a grant.
We will also discuss so-called estoppel licences, which are not really a separate type of licence.
Bare licences
A bare licence is a mere permission to be on land that is not supported by a contract. For example, the shopper in a supermarket has a bare licence to be there, as does the university student in the library. This can be terminated by the licensor on reasonable notice.
Contractual licences
Here, the permission is granted in return for valuable consideration. These are based on contracts, and as such are governed by the ordinary rules on contract. Both the licensor and the licensee can rely on remedies for breach of contract. Sometimes injunctions or an order for specific performance may be granted. In particular, injunctions can be used to prevent a licensor revoking the licence early. This means that as between the original parties the licence may be irrevocable but this has no impact on third parties. The licensor is bound by his contractual promise. This has nothing to do with property rights.
Licences coupled with a grant
This category covers permissions to be on land where the permission is required to allow the licensee to benefit from an interest in land that has been granted to them. For example, a person who is granted the right to collect fish from a stream on anothers land needs permission to get to that stream. This permission, to access the stream, is a licence, and it attaches to the profit prendre; that is, the right to fish in the stream. This licence appears to be proprietary, but the important thing to remember is that this licence has no existence independent of the profit and cannot bind anyone other than the licensor if the profit no longer exists. It has no proprietary existence of its own.
Estoppel licences
There is not really a single entity that can be referred to as an estoppel licence. Instead this term could be used to cover many different things, but it is not a helpful label. Of course, a court could grant a licence as the remedy arising from an estoppel. A person with the benefit of an estoppel may also, and separately from the circumstances giving rise to an estoppel, have a permission to be on the land. But there is no such thing as a licence protected by estoppel such that the licence itself takes on the proprietary nature of the estoppel.
And so we can see that all licences, necessarily, are personal rights and cannot have a proprietary existence of their own. What can however exist, is a constructive trust that arises when a purchaser, on taking land, over which there is
a licence, promises to give effect to that licence. In such cases, as can be seen from Ashburn Anstalt v. Arnold, a constructive trust may arise which will bind the purchaser personally. In the next podcast we will be looking at mortgages and the powers of the mortgagee under sections 101 104 Law of Property Act 1925 in particular. Todays key concepts: bare licences, contractual licences, licences coupled with a grant and estoppel licences.
Chapter 10 - The Law of Mortgages

Essay Questions
(1) Once a mortgage, always a mortgage. Do the rules on clogs on the equity of redemption unduly frustrate commercial interests?
(2) In 2006, Walter and Yasmin became joint registered proprietors of No. 9 Labyrinth Lane. In order to buy their house they took out a mortgage with A,B,C Bank. The bank provided 300,000 which was due to be paid back over 20 years at an interest rate to be specified by the Bank. The Bank acquired a registered legal charge over the property.
2 years later it became apparent that Walter and Yasmin were not able to keep up the payments on this mortgage and although they had not yet fallen into arrears on the interest payments, they worry that they may do in the near future. They have therefore contacted the bank to inform them of their difficulties. The Bank is anxious to ensure that it does not lose the value of its security as the house is now worth only 250,000. The market is continuing to fall.
The Bank has contacted you and would like to know what it can do in order to maximise the value out of the property. Specifically:
The Banks preferred option is to go into possession of the property in order to sell the property. They have noticed that Walter and Yasmin are on secondment from their jobs for 3 months and so are not living in their property. They do not wish to go to court. Is the Bank able to obtain possession in these circumstances?
Failing going into possession, the Bank wishes to sell the property without possession. Is this a viable option? The Bank is worried that Walter and Yasmin may try to slow things down by claiming that they should be able to sell the property themselves. Is this something that Walter and Yasmin may be able to do?
Finally, the Bank is anxious that the Human Rights Act 1998 may impact on their ability to obtain possession and/sell the property. They are losing money on this investment and wish to get what money back that they can.
Advise the Bank. (3) The range and scope of remedies available to a mortgagee is too broad. It is time that the balance was redrawn to give the mortgagor more control. Discuss.

Answer the questions below based on the facts of this short scenario. A, the registered freehold proprietor of No. 1 Main Street, granted a registered charge to ABC Bank Plc in 2006. A is now struggling to manage his finances and is 3 months in arrears having been served a notice by the bank. The Bank wishes to sell the property after having gone into possession. A is worried that this will mean a lower price is obtained for the house leaving him unable to afford to buy again.
Law of Property Act 1925, section 101 Administration of Justice Act 1970, section 36 Law of Property Act 1925, section 91 Law of Property Act 1925, section 103 Law of Property Act 1925, section 104
Palk v. Mortgage Services Funding Plc [1933] Ch 330 Cheltenham & Gloucester v. Norgan [1996] 1 WLR 343 Ropaigealach v. Barclays Bank Plc [2000] QB 263 Jones v. Morgan (2001) 82 P & CR DG 20 Bishop v. Blake [2006] EWHC 831 (Ch)
What happens if the mortgagee sells the property before the power of sale has arisen?
Show Answer
Will a sale by open public auction satisfy the requirement that the best price reasonably obtainable is got by the mortgagee? Justify your answer by reference to the case law.
Show Answer
Is it possible for a mortgagee to obtain possession without a court order? Justify your answer by reference to the case law.
Show Answer
What is the 'starting point' for the assessment of what constitutes a reasonable period for the purposes of Section 36 Administration of Justice Act 1970?
Show Answer
Can a mortgagee be granted possession of land mortgaged by joint mortgagors where the mortgage turns out to be binding on only one of them?
Show Answer
Podcasts
Download Podcast In the previous podcast in this series we discussed the different types of licence: bare licence, contractual licence, and the licence coupled with an interest. In this podcast we are looking at mortgages and in particular we will be focusing on Sections 101104 Law of Property Act 1925 which outline the statutory powers of the mortgagee.
Mortgages, the normal method used to finance home-purchases, are a very important social aspect of land law. The balance of the rules and powers of the mortgagee determines the cost of mortgages on one hand but also the risk undertaken by the mortgagor. When considering these powers you should bear this balance in mind.
In registered land, legal mortgages can only be created by means of a registered legal charge by deed. When a mortgage is made this way, a raft of legal powers are conferred on the mortgagee, normally the bank. The mortgagee has other powers too, specifically foreclosure and the power to go into possession, but Section 101 confers on the mortgagee the power (1) to sell the property and (2) to appoint a receiver.
We are going to look at when these powers arise, when they become exercisable, and what the effect of these powers will be.
Section 101
Section 101 tells you when the power of sale arises. The power of sale arises when the mortgage money becomes due, i.e. after the legal date for redemption.
The effect of this is that as soon as payment is due, the mortgagee can sell and a purchaser will be protected even if the power was not exercisable, something we will be discussing later. This protection ensures that the purchasers will not have their title questioned. It can be found in section 104 Law of Property Act 1925. The only time that this protection will not apply is if the purchaser was aware of the impropriety of the exercise of the power of sale.
This means that sections 101 and 104 together are a very important power for the mortgagee as they give him the opportunity to recover his investment, or at the very least, to minimise his losses in cases of negative equity, where the property is worth less than the money lent on the mortgage. The power to appoint a receiver to manage the property is also a valuable one.
Section 103
Section 103 explains when the power of sale becomes exercisable. Although as soon as the legal date for redemption has passed the power of sale arises, it does not become exercisable unless one of the conditions in section 103 has been met. If a power of sale is used before it becomes exercisable, as section 104 makes clear, the mortgagor who suffers loss as a result will find his remedy in damages.
What are these crucial conditions in section 103?
1.
A notice requiring payment of the mortgage money has been served on the mortgagor and the mortgagor has defaulted for 3 months after such a notice.
2. 3.
Interest under the mortgage is 2 months or more in arrears. There has been a breach of the mortgage deed other than the requirement to pay money. This could include for example a requirement to keep the property insured, or in good repair.
If one of these conditions is fulfilled then the power of sale becomes exercisable.
From here, it is then up to the mortgagee to ensure that when they do sell the property that they obtain a reasonable price given the current market conditions by taking the appropriate steps when selling the property. For example, the property must be advertised properly or sold at public auction.
In the next podcast we will be looking at Schedule 6 of the Land Registration Act 2002 and adverse possession. Todays key concepts: sections 101104 Law of Property Act 1925.
Chapter 11 - Adverse Possession

Essay Questions
(1) (A) In 2001, Sue the registered proprietor of 24 Labyrinth Lane, granted a 2 year lease to Anthony. Very soon after the lease was granted, Rosemary, a homeless lady, moved into the shed on 24 Labyrinth Lane with her dog, Lucy. Rosemary changed the locks on the shed and Anthony could no longer gain access, although he did not know this. In 2004, Sue realised that Rosemary was living in the shed and wanted her to leave. She therefore wrote to Rosemary asking her leave. Rosemary ignored this letter. In 2003, once Anthonys original lease was up, he asked Sue to grant another lease. Sue agreed and granted him a 15 year lease. Rosemary has been living in the shed throughout. Rosemary is now upset that she is once again being asked to leave. Advise Rosemary.
(B) Anthony also planted a hedge around 24 Labyrinth Lane in 2001. His hedge has enclosed a 100m wide, 100m long area of land that in fact belongs to the next-door neighbour, Jimmy, although neither Jimmy nor Anthony was aware of this fact. Anthony believed that the land belonged to him under the lease. Jimmy has now sold his house to Gillian and Gillian believes that she can require Anthony to move the hedge. Advise Gillian.
(C) When the 15 year lease is up, Sue would like the hedge to remain. Advise Sue on the likely position following the termination of the lease.
(2) (A) In 2000 Raymond, the freehold proprietor of No. 4 Labyrinth Lane, believing it to be his land, started to grow his vegetables on a patch at the side of his property approximately 0.5 acre in size. In fact this land belonged to Stephen, the freehold proprietor of No. 2 Labyrinth Lane. Stephen knew that the vegetable patch was his land but did not take any action to prevent Raymond from growing his vegetables. Stephen has now got married and had a child and wishes to use the 0.5 acre plot to build a play area.
(B) At the other side of Stephens property there is a barn. In 1996 he granted a 5 year lease of that barn to Teresa.
Initially Teresa stored her hay there. In 1998, Victoire broke into the barn and changed the locks. Teresa could no longer get in to the property to store her hay. Stephen has now discovered that he cannot enter the barn.
(C) Stephen also has a field at the bottom of his garden which Wilhelm uses to graze his cattle. Wilhelm offered to pay for the use of the land in 2000 when he started grazing his animals there but Stephen failed to reply to his letters. As a result Wilhelm concluded that Stephen did not mind him using the field for grazing. He did not put locks on the gates, but he did prevent a fellow neighbour, Zara, from attempting also to graze her cattle there. Stephen is now trying to remove Wilhelms cattle from the field and Wilhelm is arguing that the field is his b ut also that it is a breach of his human rights to force him to remove the cattle in this way.
Advise Stephen.
(3) The Law Commission should have gone further in the LRA 2002 to close-off the possibility of a successful claim to adverse possession. Discuss.

Answer the following five questions below based on the facts of this short scenario. A was registered freehold proprietor of No. 1 Main street in 1999. In 2000 B starts storing his garden furniture in the shed in the garden of No. 1 Main Street without permission but A keeps his paints and tools in there also. A does know about it. At the same time, C had built a fence at the bottom of his garden which is in fact on A's land so that 1m of A's land is now behind C's fence.
Limitation Act 1980, section 15 Land Registration Act 2002, section 58 Land Registration Act 2002, Schedule 6, paragraphs 35 Land Registration Act 2002, Schedule 6, paragraph 1 Land Registration Act 2002, Schedule 6, paragraph 9
Powell v. McFarlane (1979) 38 P & CR 452
Pye v. Graham [2002] UKHL 30 Pye v. UK (2007) ECHR 44302/02 Buckinghamshire CC v. Moran [1990] Ch 623 Baxter v. Mannion [2011] EWCA Civ 120
Can an adverse possessor bring an action for possession against a trespasser?
Show Answer
Podcasts
Download Podcast In the previous podcast in this series we looked at mortgages and especially the rules regarding the power of sale and the power to appoint a receiver as outlined in sections 101 104 Law of Property Act 1925. In this podcast we will be examining Schedule 6 of the LRA 2002 and the rules regarding adverse possession of registered land.
Since 2003 the rules regarding adverse possession have changed dramatically. Whilst the meaning of adverse possession remains the same, as can be seen in Chapter 10, the time required and the consequences of being an adverse possessor are fundamentally different. More than this, in registered land, adverse possession is no longer dependent on the concept of limitation periods. Instead the consequences of adverse possession depend on the register. We will be looking at applications to be registered as proprietor on the basis of adverse possession, how the registrar must deal with this application, and objections to the registration.
The application to be registered
If an adverse possessor has been in adverse possession for more than 10 years, he is entitled to apply to become registered proprietor as long as he is not a defendant in possession proceedings nor has been the object of a judgment for possession of a land in the past two years.
How the registrar must deal with this application
Once the registrar has received the application he must send a notice to the registered proprietor of the estate, amongst others, including a registered charge holder. If the registered proprietor etc do not reply and object to the registration under Schedule 6, paragraph 4, the applicant adverse possessor will be registered as proprietor. For this reason it is crucial that the registered proprietor keep his contact details up to date at the land registry and reply promptly to the notice.
Objections to the registration
If the registered proprietor etc. do respond to the notice from the registrar, the registrar must deal with the application under Schedule 6, paragraph 5 Land Registration Act 2002. Paragraph 5 specifies that unless one of the three conditions is met, following the objection, the applicant cannot be registered as proprietor.
The three conditions are:
1.
It would be unconscionable for the existing proprietor to seek possession from the adverse possessor as a result of an estoppel, and the situation is such that the applicant ought to be registered.
2. 3.
The applicant is entitled to be registered proprietor for some other reason. The boundary exception. Where the land in question is adjacent to the land belonging to the applicant and the exact boundary line has not been determined, and where for at least 10 years of the adverse possession the applicant reasonably believed the land belonged to him, then the applicant can be registered as proprietor despite the objection.
If the application has been rejected and the applicant is not registered as proprietor, 2 years after the application is rejected he may apply again to be registered. If he has not been defendant in possession proceedings during this time, then he can be registered as proprietor. In other words, the existing proprietor has 2 years to bring possession proceedings against the adverse possessor following the initial application. If he does not do this then the adverse possessor will become registered proprietor.
Thus it is clear that compared with the position in relation to unregistered land, registered title is much less vulnerable to adverse possession. This is one of the biggest incentives in the 2002 Act for freeholders of large estates to voluntarily register their title.
This is the last podcast in this series. Thank you for listening. We hope that you have found the material on the website useful. For more detail on each of the topics, please refer to the rel evant chapters in Martin Dixons Modern Land Law. Todays key concept: Schedule 6 LRA 2002.
EQUITY & TRUSTS LAW

`EQUITY& TRUSTS LAW - AN OVERVIEW The term 'trust' describes a particular form (or forms) of property holding. Where there is a trust, the legal title holder must apply the property for the benefit of someone else unlike the standard absolute
ownership where the owner is free to use the property howsoever he wishes. The person holding the property is a trustee and the person for whose benefit he holds it is the beneficiary and the person who set up the trust is usually referred to as the settlor. In a typical trust, the beneficiary has right against the trustee that the property be applied solely for his benefits, he also have equitable title to the trust property. Trust could either be expressed (what the owner wanted), while other are impossed by law irrespective of the property owner's wishes. These are resulting or constructive trusts. For a long time English law had both the common law applied by the king's courts and equity applied by the chancery court. These two were merged in 1875. Trusts are extremely versatile legal devise. Settlors may use them both to provide for family members and to secure their commercial interest. The law imposed trusts ti ensure a just division of the family home upon relationship breakdown, to strip gains from wrongdoers, and to return misapplied property. It is for this reason that trusts play such a central role in English law. CERTAINTY To create a valid express trust, the settlor must have intended to create a trust, the trust property must be sufficiently certain and the beneficiaries must have been adequately identified. These are know as the three certainties; intention, subject matter and objects. The purpose of this is to enable the court have adequate information. Trust is intentional and failed gift will not be re-interpreted as trust. No trust will be created if the settlor intended merely to impose some moral obligation on the trustee to use the property for another's benefit. The intention must be legal obligations. The court in establishing whether a settlor intended to create a trust would adopt objective rather than subjective approach. Trust object and subject matter may be uncertain in a variety of ways and to differing degrees. These could be either inexact words (conceptual uncertainty) and not enough factual information (evidential uncertainty). In respect to certainty of subject matter, the general principle is that the precise identity and location of the trust property, what parts are to go to which beneficiaries must be clearly stated. There is however an exception with homogeneous intangible property, where it is sufficient to identify the source of the trust property from the proportion of that bulk which is to be held on trust. Where a trust if x to each of my friend, the trust will succeed so long as any one person can be found who falls within the defined class of beneficiaries. However, where it is x to be shared among certain beneficiaries, the trust will only succeed if it is possible to draw-up a complet list of all those who falls within the defined class of beneficiaries. Where a settlor creates a discretionary trust, the trust will success only if it can be said of any given person that he is or he is not a members of the class of beneficiaries. A discretionary trust will fail, even if its objects are sufficiently certain, it is held to be administratively unworkable or capricious. This is where the class is too big (administrative) and settlor reason for chosing the beneficiaries (capriciousness.) It may be possible to cure uncertainty of subject matter or objects by stipulating for a third party to fix the problem (most useful of evidential uncertainty). If the settlor seeks to make a self declaration of trust, then any uncertainty will result in him continuing to hold the property absolutely, where the property is transferred to a trust, then uncertainty of objects or subject will lead to the trustee holding the property on trust for the settlor.
PURPOSE TRUST
Purpose trusts are set up to use property to promote a particular objective rather than benefit certain individuals. GHowever, the basic rule of English trusts law is that trust must have beneficiaries, where there is no beneficiaries it is not possible to create a purpose trust. This rule is known as the beneficiary principle firmly established in Re Ebdacott (1960) Probition applies only to purpose trust and not to powers for purpose (Re. Douglas (1887. There are however a number of exceptions to the beneficiary princile. The most frequently cited explanation for the rules come from Marice v Bishop of Durham, which ruled that for trust to be valid it must be capable of being supervised by the courts to ensure that the trustees duties are enforced and the settlor's intentions respected. This is based on the reasoning that i) if a trust cannot be enforced it must fail; and b) it is only beneficiaries that can enforce a trust. Enforcement of Trusts The general rule is that a settlor is divorced from the trust once it is created and the trustees and the beneficiary are then left to enforce the trust. There is a counter arguement that if a settlor is still alive, he should be able to enforce the trust in addition to other interested parties. Must trust be enforceable There is need to find an enforcer to ensure that the trustees perform their duty. It my be possible however for an honest settlor to enforce a purpose trust to allow if from failure. The difficulty in finding a beneficiary to enforces Sauders v Vaulier right is one the things militating against enforcement of purpose trusts. Re. Bowes (5,000 for planting shelter trees for Wemmegil Estate) the court interpreted the owners of the estate as the beneficiary of the trust and gave them the discretion to use the money as they saw fit. In re Andrew's Trusts, a trust for children's education was interpreted to mean the general use of the childred since their education has been provided for. EXCEPTIONS TO PURPOSE TRUSTS Anomalous Purposes Trusts - These trust are created by accidents of legal history and they are: a) Trusts to look after or provide for certain animals - Re Dean (Trust for the maintenance of testator horses and hounds b)Trust for the contruction and or maintenance of graves and funeral monuments - Re Hooper c) Trust for saying or private masses - Bourne v Keane.
A second exception is found in Re Denley's Trust Deed provided that the carrying out of the purpose must benefit an individual in a way which is not to remote or indirect; and it must be possible to identify all those who would beneftit. Other requirements of purpose trusts are that it must be defined with sufficient certainty for the courts to be able to enforce it. Morice v Bishop of Durham; Re. Astor's Settlement Trusts. Secondly, where the purpose is regarded as capricious or unlawful a clearly defined purpose trust will fail e.g. Brown v Burdett (1882), a trust to block up the rooms of a house for 20 years. Finally purpose trust will fail if they do not satisfy the rule against perpetuities (there must be time limit.
UNINCORPORATED ASSOCIATIONS Two or more people bound together for one or more common purpose. Three issues arising from unincorporated association are: a) How they acquire such properties b) How it is held once acquired c) What happens to it after the association comes to an end. Features of unincorporated associations; Members generally understand that they are not free to treat the groups property as if it were their own. How unincorporated association owns property. The property is held on trust on behalf by a few people for the association and members agreed to its being used exclusively for the association. The trust contains power to add or remove members based on exigencies of time. The assest are beneficially owned by the members under a trust where the Treasure or a committee is the trustee. In addition there is a contract between all the members governing the application of the property - This is known as contract holding theory recognised in Neville Estates Ltd v Madden (1962); Re. Rechers Will Trust (1972). It is open to the members as a whole to vary the contract to remove the legal restriction. Gift to Unincorporated Association This could be transferred to the current members beneficially, the current and future members and on trust for the purpose of the association. The donor transfer the property to the members as a whole, they in turn receive it as a group property and its usage is guided by the contract that it would be used for the purpose of the association. Such property are treated as transferred on trust for the members generally. Distribution of Property Upon Dissolution of the Association Upon dissolution of the association, the property could either revert back to the owner or it becomes ownerless and be vested in the crown as as bona vacantia. Re. West Constabulary's Widows Children and Benevolent (1930) fund trust. The property were treated as follows: Subscrition - Bona vacantia Raffle and sweepstake - bona vacantia Collection box - bona vacantia Donation & Legal - Could return to the owner. However in Re. Bucks Constabulary Widows and Orphan Fund Trust Society, the court ruled that upon dissolution, members at the time of the dissolution are entitled to an equal share in the association's property precisely because they are equally beneficially entitled to that property. The exception is that where the association is reduced by death or resignation to one person, the property become bona vacantial Re. Bucks.
Political Parties Contract holding theory of unincorporated association does not apply to political parties Re. Grant Will Trust & Conservative and Unionist Central Office v Bureel Personal Agency Relationship, where the owner donated the property to the treasure to use for political purpose. The beneficiary principle is satisfied if an apparent purpose trust turn out, on closer examination, a persons trust. The interpretation is that it is to benefit those individual who would benefit from the purpose being pursued. CHARITABLE TRUST Charitable trust is an exception to the rule that trusts must have beneficiaries. Charities Act 2006 sets out 13 categories of charitable purpose and modify how to apply the test of public benefit. Charities enjoys numerous taxation advantages, recognitions is viewed by many as a state-sanctioned stamp of legitimacy or approval. Charities are registered with the Charity Commission and provide information to the Commission on periodic basis. Duge v Turner set out qualification for charity Traditional Approach - Charitable Uses Act 1601: Relief of Poverty Advancement of Education Advancement of Religion Other purposes beneficial to the the community The above are known as Pensel head of charity Charity Act 2007 Sets out 13 purposes of charity and s.2(2) confirms the case laws on the defintion of charity.
1. The Prevention or Relief of Poverty - Joseph Rowtree Memorial Trust Housing Association v Attorney General - provision of houses for the aged at below market rate 2. The Advancement of Education - Inland Revenue Commissioner v McMuller (1981) Football academic recognised, Research recognised in Re. Hopkins Will Trust 3. Advancement of Religion: s.2(3)changes made to the definition of relition by the Act do not dispense with the requirement of worship in Re. South Place Ethical Society (1980). The trust must not be just religions, but also for the advancement of religion United Grand Lodge of Ancient Free and Accepted Masons v Holborn Borough Council (1975) 4. Advancement of Health or the saving of lives. s.2(2) - Reliefs to the sick is charitable (Re. Resch's Will Trust (1969) Relief of the sick was extended to spritual healing in Funnell v Stewart (1996). 5. Advancement of Citizenship or Community Development s.2(3)(c) - The Charity Commission include providing financial assistance to the port, housing to those in need; helping unemployed to find work,
providing education and training, providing financial and technical assistance 6. Advancement of Arts, culture, heritage or science - these were dealt with unde Pemsel classification. Horticulture was recognised as science in Re. Pleasnts 7. The Advancement of Amateur Sport - Starting point is Re. Nottage, where yatch race was no recognised. However more sports and games such as chess, monopoly, etc have been recognised 8. Advancement of human rights, conflict resolution or reconciliation, or the promotion of religious or racial harmony or equality and diversity - these are new areas recognised. 9. Advancement of environmental protection or improvement - For the purpose of trust to be recognised as charitable it must be demonstrated by independent expert evidence that such species of part of environment are worthy or preservation. 10. Relief of those in need by reason of youth, age, ill-health, disability, financial hardship and other disadvantage - s.2(2)(j) introduced by IRC v City of Glasgow Police Athletic Association (1953) and IRC V Baddelley (1955) 11. Advancement of Animal Welfare - recognised in cases such as Re. Moss, Re. Murawski's Will Trust (1971) 12. Promotion of the efficiency of the armed forces of the crown, or of the efficiency of the police, fire and rescue serices or ambulance services - Re. Cray 13. Other purposes s.2(4) - Scotish Burial Reform and Cremation Society v Glasgow Corporation
The 2006 Act removes the presumption of public benefit that previously operated and put the onus on the trust to prove the the charitable trust is for public benefit. Trust for political purpose cannot be charitable and tho include trust for supporting particular politcal party, change of laws in foreign country. Charitable purposes cannot be positively harmful to the public. If it is impossible to carry out the charitable purpose, the cy-pres (as close as possible) doctrine may operate to keep the funds in charitatble domain. In the case of initial failure, it is necessary to show a paramount charitable intention on the part of the settlor befor cy-pres can apply, in case of subsequent failure, cy-pres applies automatically. The perpetuality rule do not apply in same way to charitaable trust as to private trusts. The rule against inalienability does not apply at all and there is a limited exception from the rule against remote vesting. The beneficiary principle does not apply to charitable trust and the enforcement is carried out by the Attorney-General of the Charity Commission.
FORMALITIES AND THE CONSTITUTION OF TRUSTS The general rule is that certain transaction must be conducted in certain way for it to have legal effect. This rules means that a party must do more than simply form an intention to make a particular disposition of his property for the disposition to be effect. Courts sometime in trying to ameliorate apparent to which such rules can give rise on individual fact ofter create exception to formality requirement such as in Re. Vanderwell's Trust (No. 2) (1974)
Equity will not perfect an imperfect gigt. Milroy v Lord (1962) A shareholder using deed rather than transfer form was regardes as ineffective declaration of trust. The harshness of this rule was avoided in T Cholthram International SA v Pagavani (2001) - the trust succeed because the donor himself was to be one of the trustees. Principlein Re. Rose (1952) relying on transfers of shares. When he died the title passed to the beneficiary. When you set to make outright transfer of shares, once all the steps have been taken the sharesare held on trust until the third party completes the process. Mascall v Mascall (1984) Father and son where the land was transferred and the father later changed his mind. Pennington v Waine (2002) transfer of 400 shares where form was given to the representative of the company's auditors, who did not pass it to the company. It was held that the trust was agreen even when there are still some things to be done. Other exceptions to the rule that equity will not perfect an imperfect gift are: a) The rule in Strong v Bird (1874) Where a tranfer property to B and when A dies, B was also made the executioner of A's will b) Deathbed gifts - donationes mortis cause - donation made on death bed. Where a promise made by a deed but not supported by consideration is breach the other party can only recover damages for loss caused by the breach. By contract, where consideration has been given, ther is possibilility of specific performance. Equity will not assist a volunteer (one who has provided no consideration. Equity will not allow statute to be used as instrument of fraud (secret trust (full and half secret). Sometimes if you wannt to make a transfer or other disposition of property all you need to do is to make clear that this is what you want and the tranfer then takes effect. However, often, more is needed. For intance you may beed to express your intenton in a particular form such as in writing, or registration of the new owner. If you want to pass the benefit of property to someone else, there are three basic ways outright transfer (gift); declare yourself trustee of the property; or you can transfer the property to some third party to hold on trust for your intended beneficiary. A trust cannot arise until the intended trust is properly vested in the intended trustee. An intended beneficiary may also enforce a promise to create a trust if despite not having provided consideration or being a party to the deed, the person who did provide the consideration or the party to the deed holds his right to enforce the promise on trust for the beneficiairy. Trust can usually be created without formality. There are however, two principal exception; trusts of land and testamentary trusts. S.53(1)(b) of the Law of Property Act requires your intention to be evidenced in writing. You can create trust to take effect on your death and this must satisfy the requirement of s.9 of Will Act 1937, which requires the trust to be in writing and signed. A beneficiary trust will usually have an equitable title to the trust property, this interest like other proprietary interest can be transfert to others. An outright transfer of a beneficiary's equitable interest clearly counts as a disposition. So tho where the benefiiciary directes his trustee now to hold the property on trust for someone else. However, there is no such disposition where beneficiary tells his trustee to transfer the trust property outright to someone else, thus bring the trust to an end. Neither is there a disposition where the beneficiary declares himself a trustee of his equitable interest in favour of another, save perhaps where there is a bare trust.
Direction to the trustee to transfer the property to another outright - An equitable interest is like proprtiatary interest which can be a subject matter. A bare trust is one where your only duty as a trustee is to hold it to the beneficiary's order, to do with it as he directes. Declarations of sub-trust are bot disposition of beneficiary's equitable intrest, and do do not require writing, unless the sub-trust is a bare trust in which care there is a disposition and writing is required. Where a beneficiary surrenders his interest, this does amount to a disposition and so would require writing to be effective under s.53(1)(c) - Newtlon Housing Trust V Al-Suleimen (1999). Disclaimer, where would be beneficiaries rejects any interest under the trust from the onset, does not require writing to be effective - Re. Paradise Motor Co. Ltd (1968) RESULTING TRUSTS
of trustVandervell v IRCReliefs to the sick is charitable (Re. Resch's Will Trust (1969) Relief of the sick was extended to spritual healing in Funnell v Stewart (1996). Posted by Law Student at 4:12 AM
1 comment:
JB Monsese said... There is a confusion about how to clearly explain the meaning of a trust. The initial point should be the Express trust, where s52LPA & s53LPA apply. If the trust is not identified as an Express trust than equity(Implied trusts and Proprietary Estoppel)should be involved.So let's go with an Express trust. 1-The general rule(Knight v Knight)is about the exitence of the 3 Certainties(Intention, Subject Matter and object) -For a gift to be valid, 2 certainties are required(Subject Matter & Object), because there is no legal obligation(Re Diggle's case where there was no intention), it is just a moral obligation which can depend on the trustee's discretion. 2-The Subject matter should be clearly identified.Furthermore,the subject matter should be separated from the property if there is a tangible distinction of the shares(Re London Wine Ltd's case and Re Goldcorp Exchange's case).But if the shares are identical, the clarity should be made based on Hunter v Moss(no need of separation).Eventually, for a trust to be valid, the settlor should specify clearly the Subject Matter in avoiding to grant a beneficiary is share, subject to the possession of another beneficiaty(Boyce v Boyce, held void). 2-The biggest issue is about the certainty of object for the fact that it is one of the problem in our society. in Fixed trusts, the method used to identify the Object is the "Complete List test"(Commission v Broadway Cottages)but when dealing with a discretionary trust, the identification of the beneficiaries is based on the "is or is not Test"(Re Baden's Deed Trusts, where the words dependants,and relatives were identified in the scope of certainty).The general rule of Certainty of Object is clearly explained in Morice v Bishop, where the law states that a trust should be enforced by a beneficiary.Otherwise, it should be void. However,
the exceptions to that rule can arise when dealing with the Maintenance of animals(Pettingal v Pettingal), maintenance of tombs(Re Hooper's case)and trust with charitable purpose(Funnel v Stewart).Furthermore, a gift made to an uncorporated association(such as a social or sport club)is subject to fail(Not a valid gift), because it has not a charitable purpose,it has not a legal body and it opposes the perpetuity rule(Leahy v AG and Neville v Madden).Meaning, in this particular case, the gift should be made to an ascertainable beneficiary,with a charitable purpose, no perpetuity(s15Perpetuities & Accumulations Act1964) should be involved(Re Denley's case)and cannot be capricious.For the members of a club to make a legal claim of a gift, they should provide an evidence of the rules of the association stating that they are recognised as joint tenants(Re Lipinski's WT). Meaning, if it is not approved by the body(Uncorporated Association)it will be seen as not forming a gift(Re Grant's WT). What is a charity?-s1 Charities Act 2006. Meaning, for an association to be identified as having a charitable purpose it should comply with any list of the charitable purposes cited under s2 4b of the Charities Act2006(Funnell v Stewart). If equity is involved, meaning the express trust is void, the can provide remedy based on resulting trusts or constructive trust or proprietary Estoppel...Contact Docteur JB Monsese Email:jb_nba@yahoo.com contact available in Facebook. Thank you!

Land Law Martin Dixon

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The study of land law requires a sound grasp of certain basic distinctions and concepts.

(2) Registered Land

Chapter 2 - Registered Land

Multiple Choice Questions

Chapter 3 - Unregistered Land

Multiple Choice Questions

(1) What sorts of interests should be registered as land charges?

(2) The mechanics of registration as a land charge

(3) The effect of registration

Advise Anna and Elvis.

Multiple Choice Questions

What does this mean?

(2) Trusts of Land and Appointment of Trustees Act, Sections 14 and 15

Chapter 5 - Successive Interest in Land

Multiple Choice Questions

Multiple Choice Questions

Chapter 7 - The Law of Easements

Sarah has contacted you with a number of questions. Advise her.

Advise Ned and Mary.

Multiple Choice Questions

Is it possible to expressly exclude the operation of the rule in Wheeldon v. Burrows?

(1) Easements of necessity

(4) Section 62 Law of Property Act 1925

Chapter 8 - Freehold Covenants

Advise Alison, Laura and Ronald.

Advise Good Night Out Enterprises.

Multiple Choice Questions

Law of Property Act 1925, section 1(2)

What is the effect of section 79 Law of Property 1925?

Chapter 9 - Licenses and Proprietary Estoppel

Multiple Choice Questions

Bare licence; Contractual licence;

Licence coupled with a grant.

Licences coupled with a grant

Chapter 10 - The Law of Mortgages

Multiple Choice Questions

What are these crucial conditions in section 103?

Chapter 11 - Adverse Possession

Multiple Choice Questions

Powell v. McFarlane (1979) 38 P & CR 452

Can an adverse possessor bring an action for possession against a trespasser?

The application to be registered

How the registrar must deal with this application

Objections to the registration

The three conditions are:

EQUITY & TRUSTS LAW

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