LEVEL 3 - UNIT 4 LAND LAW SUGGESTED ANSWERS JANUARY 2012

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 4 LAND LAW SUGGESTED ANSWERS JANUARY 2012 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2012 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. SECTION A 1. The Buyer is responsible for registering the transaction at the Land Registry. 2. Candidate to give any THREE of the following factors under s.15 (show understanding by giving the equivalent as shown in brackets): The intention in creating the trust (or intention of the purchase) The purposes for which the trust land is held (such as the purpose for a home) The welfare of any minor occupying or who might occupy trust property The interests of any secured creditor. 3. Candidate to give any ONE of the following tests: or or The degree of annexation (attachment) of the object to land; this means the presumption that if fixed in a substantial way to land, the object becomes a fixture, as in Holland v Hodgson [1872] The purpose of annexation (attachment) of the object to land; this means that if the attachment was to display the object only, then the object remains a chattel despite annexation, as in Leigh v Taylor [1902] The permanence of annexation (attachment) of the object to land; this means how long will attachment be attached. If only temporary, then the object remains a chattel, as in Botham v TSB Bank plc [1996]. 4. The contract must be in writing, contain all express terms and be signed by, or on behalf of, both parties. 5. (a) An example of an easement could be a right of way, or right of drainage, or right of light. Page 1 of 5

2 (b) Candidate to name any TWO of the following characteristics: There must be two pieces of land: the dominant and servient tenements; The easement must accommodate (i.e. benefit) the dominant tenement; There must be separate ownership of the two tenements; The right claimed as an easement must be capable of forming the subject matter of a grant, so not vague, not placing expenditure on the servient owner, or being a claim for total possession. 6. The mortgagee can exercise the power of sale when one of the three circumstances has occurred: The capital has been called in, and no repayment has been made within 3 months More than two instalments of interest are in arrears There has been some other breach of a mortgage condition. 7. The possible classes are: Absolute Leasehold, Good Leasehold, Qualified Leasehold, Possessory Leasehold. 8. Term of years absolute means a Leasehold estate. This is of a maximum duration (fixed term up to a stated number of years or periodic). It will still be a term of years absolute whether it starts now or up to 21 years in the future. 9. (a) The burden of a freehold covenant is an obligation or restriction which must be obeyed. (b) Candidates to name any three of: Express agreement between the parties Implied agreement by breach not being enforced Change in neighbourhood making covenant obsolete Order of the Upper Tribunal (Lands Chamber) Common ownership 10. Candidates to name any two of: Mines and minerals Buildings Intangible rights 11. The insurance principle means that the State guarantees the accuracy of the land register. Compensation will be given or the register will be altered if any error is due to a mistake by the Land Registry. 12. (a) The four unities apply to co-ownership of land as joint tenants. (b) Candidates give one of the following outlines: Unity of possession: o All co-owners are entitled to joint possession of the whole Unity of interest: o All co-owners are entitled to the same type of interest Unity of time o Interests of the co-owners arise at same time Unity of title Page 2 of 5

3 o All co-owners derive title from the same document Scenario 1 Questions SECTION B 1. The capital repayment mortgage consists of regular payments of capital and interest made over a fixed period, and is designed to be paid off at the end of the period. 2. (a) In these circumstances there has been severance of Jack and Wendy s joint tenancy in equity. This has occurred through Wendy s letter which acts as a notice in writing under s.36 Law of Property Act 1925 delivered on the other joint tenant with intention to sever. Severance results in a tenancy in common in equity with separate shares, which can be left by will. As a result, Alan owns Wendy s half share of the proceeds and Jack owns the other half. Students are credited for reference to relevant case (e.g. Harris v Goddard [1983]). (b) To be effective as a notice under s.36, the letter must be delivered with intent to sever. Without delivery, there is no severance. The principle of survivorship applies to joint tenants: when one joint tenant dies, the survivor(s) becomes entitled to the whole. In these circumstances, as the survivor of joint tenants, Jack is the sole owner at law and in equity, and so solely entitled to the proceeds of sale. Students are credited for reference to relevant case (e.g. Kinch v Bullard 1998]). 3. After Wendy s death, Jack is the sole trustee, holding the legal estate for himself and Alan. Payment to two trustees is required to effect overreaching. This will transfer the beneficial interests to the sale proceeds held by trustees, so that the buyer takes free of the beneficial interests. 4. (a) There will be the transfer of the legal estate in house. A deed must be used under s.52 Law of Property Act 1925 to transfer a legal estate. (b) (i) The deed must be in writing, state on the face of it the intention to be a deed, and executed by being signed by the party making it, attested (the signature witnessed) and delivered. (ii) S.1 Law of Property (Miscellaneous Provisions) Act Scenario 2 Questions 1. The issue is whether the benefit of the freehold covenants made by Alec has passed to Charles. (As the burdened land has not changed hands, there is no need to consider the burden passing). The rules relating to the benefit passing at common law are applicable here. Conditions for the benefit to pass: Covenant must touch and concern land Covenantee (and the person now intending to enforce) must own the legal estate in the benefited land The intention for benefit to pass Applying these conditions to the facts of the question: Page 3 of 5

4 All the covenants touch and concern Charles s land (they are not personal to the owner); Charles owns the freehold; It can be assumed that the benefit was intended to pass (implied under s.78 Law of Property Act 1925 if not actually stated). It can therefore be concluded that the benefit has passed to Charles and he can enforce the covenants against Alec. 2. (a) Joe is claiming a profit a prendre. This is a right to enter another s land to take something from it, such as grazing. (b) Charles should check the charges register of his title at the Land Registry to see whether Joe registered his profit against the title before Charles purchased; if so Joe s claim will be binding on him. 3. (a) Ruth provided official copies of the land register of her title. (b) She obtained these from the Land Registry. These will show: Title number property register with a description of property proprietorship register with name and address of the registered owner and class of title charges register with third party rights to which the title is subject title plan 4. It will not be necessary to register the lease. Leases for under 7 years are not registrable at the Land Registry. They rank as overriding interests under Schedule 3 Land Registration Act Charles is not entitled to keep the gold coins even though he is the landowner. Under the Treasure Act 1996 the coins, if treasure, belong to the Crown. Scenario 3 Questions 1. (a) Fatima is claiming to have an easement. Any easement must have the characteristics as listed in Re Ellenborough Park [1956]. In particular the easement must be capable of being granted. There cannot be a claim to a view as this is too vague (see Aldred s Case [1610], so Fatima cannot claim a legal right to a view. (b) The freeholder owns airspace above his land up to a height for reasonable enjoyment (see for instance Bernstein v Skyviews Ltd [1978]). Intrusion into airspace below this height is trespass. Assuming that the flagpole is overhanging at a low height, there will be trespass into Fatima s property. She can object and could claim the remedy of damages or an injunction (a court order for its removal). 2. (a) From 1990 first registration has been compulsory for the purchase of unregistered land. (Fatima bought the house five years ago). (b) The best class of title for Fatima would be Absolute Freehold title. This is equivalent to absolute ownership (i.e. fee simple absolute in Page 4 of 5

5 possession), subject only to entries on the register and overriding interests. 3. This question relates to the issue of fixtures. These are items which are attached to land and so become part of it, passing with the land on sale unless their removal is agreed before the sale. If not fixed the item is a chattel and can be taken. Where no agreement on removal has been made (often through use of a Fixtures and Fittings Form) to decide whether an object is a fixture or not, several tests are used: The degree of annexation (attachment): if the item is fixed to land in any way, it is presumed to be a fixture, as in Holland v Hodgson [1872] where looms were attached to the floor of a mill; The purpose of annexation (attachment): if the item is fixed merely to display it better as an object, it can remain as a chattel, as in Leigh v Taylor [1902] where a tapestry was fixed to a wall to display it better; The permanence of annexation (attachment): if the item is not expected to be attached for a long time then it can remain a chattel, as in Botham v TSB Bank plc [1996] where white goods and carpets were not fixtures. Applying these tests, the curtains are likely to remain chattels and so Fatima can remove them. The fireplace is a fixture and cannot be removed. The carpets could be either chattels or fixtures depending on degree and permancence of attachment 4. The Bank has the following remedies: Taking possession Exercising the power of sale Appointing a receiver An action in debt Foreclosure Page 5 of 5