LEVEL 3 - UNIT 4 LAND LAW SUGGESTED ANSWERS JANUARY 2013

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 4 LAND LAW SUGGESTED ANSWERS JANUARY 2013 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 2013 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. Absolute leasehold title, good leasehold title, qualified leasehold title, possessory leasehold title. 2. The four unities are: unity of possession, unity of interest, unity of title, unity of time. They relate to a joint tenancy. 3. A good root of title is a deed such as a conveyance or mortgage which is at least 15 years old. The seller of unregistered land must show a good root of title. 4. Candidates should name one of the following legal estates: fee simple absolute in possession (freehold) term of years absolute (leasehold) and three of the following legal interests: legal easement charge by way of legal mortgage legal rent charge certain charges arising under statute (mainly obsolete) rights of re-entry in leases and rent charges 5. In a capital repayment mortgage, repayments are made over a fixed period, such as years, by regular instalments of capital and interest. By the end of the fixed period the whole loan should be paid off. 6. A deed is required to transfer ownership of land. To be a deed under Section 1 Law of Property (Miscellaneous Provisions) Act 1989, the document must: be in writing, show on its face that it is intended to be a deed, be signed by the party making it and the signature witnessed. Page 1 of 5

2 7. The body is the Upper Tribunal (Lands Chamber). Candidates should outline any two of the following: The covenant is obsolete due to changes in the character of the neighbourhood or other circumstances; The continued existence of the covenant restricts reasonable use of land; The person entitled to the benefit has consented expressly or implied to the discharge; The discharge would not injure the person entitled to the benefit. 8. (a) (i) The easement is granted over the land retained for the benefit of the land sold; (ii) The easement is reserved over the land sold for the benefit of the land retained. (b) The three methods of prescription are: at common law (in other words: use since 1189 or from time immemorial), by lost modern grant, under the Prescription Act The presumption no longer applies as there are limitations on it. Case law has shown that the landowner only has rights up to the height needed for enjoyment of his land (Bernstein v Skyviews [1978]). Intrusion below this height without permission is trespass. Under the Civil Aviation Act 1982 the landowner cannot claim in respect of aircraft flying over his property at a reasonable height. Scenario 1 Questions SECTION B 1. Len and Tom would be claiming a legal easement. The case of Re Ellenborough Park (1956) lists these essential characteristics as follows: dominant and servient tenement (two pieces of land) separate ownership of the two tenements the easement must benefit the dominant tenement (not just a personal benefit) the easement must be capable of being the subject matter of a grant, so must not be vague. This means it is similar to other easements, can be defined in writing. It must not be a claim for total possession or impose expenditure on the servient owner. 2. Of the essential characteristics listed in the case, Len can show that: There are two pieces of land; In separate ownership; The parking would benefit the dominant land (his land); An easement for parking is not vague; it is similar to existing easements. In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1994) the court recognised that there can be an easement of parking. However, there cannot be an easement if the claim is actually for total possession of the servient land (over which the easement would run). This is shown in cases such as Copeland v Greenhalf (1952). Len s use of Jane s land totally excludes her from it, so he seems to be claiming total possession. In that case his claim is most unlikely to be an easement. Page 2 of 5

3 3. On the facts of the scenario Tom could have acquired an easement in the following ways: Implied grant by necessity, as otherwise the field is landlocked, (i.e. he cannot reach his land), as shown in the case of Nickerson v Barraclough (1982). Mere inconvenience is insufficient, to claim this method it must be otherwise impossible to reach the field; By common intention of both Tom and Kate at the time of purchase that he would have the easement; Under the rule in Wheeldon v Burrows (1879). This could apply since Kate originally owned both house and field. Tom would though have to show that she used the path as a quasi-easement (a route over her own land to reach the field), that the use was continuous and apparent and necessary for the reasonable enjoyment of the field. 4. Tom s easement could be ended in the following ways: Jane could buy the field from Tom; this would end the easement by one ownership of the dominant and the servient land; Jane could obtain a release of the easement from Tom, as dominant owner. This would need an express release by deed. An easement can also be ended by statute, but this would not be relevant on the facts of the scenario. Alternatively by abandonment if Tom stops using the path. Scenario 2 Questions 1. Candidates should choose five of the following advantages: Easier investigation of the seller s title Third party interests are easier to discover The documentation is simpler and often amounts to just form-filling There is an accurate title plan showing the extent of the property The State guarantees the accuracy of the register entries There is compensation from the land registry if any inaccuracy causes loss Because registered land conveyancing is simpler a transaction may be: o cheaper or o quicker 2 (a) A covenant is a legally binding obligation forming an equitable interest in land. (b) There is privity of contract between Dick and Sarah as they are the original parties to the covenant. Therefore Sarah can enforce the covenants against Dick. Both covenants are positive in substance though the first one (a) is negative in form. The burden of a positive covenant does not pass on to a subsequent owner of the burdened land, as shown in the case of Austerberry v Oldham Corporation (1885). Therefore Sarah is unable to enforce the covenants against Tom. 3. The covenants may have terminated through implied release. This occurs when the covenantee has knowledge of the breach but takes no steps to enforce it. In the scenario facts given in this question Sarah is aware of the breach but has taken no action so there could be implied release and she is unable to enforce the covenants. Page 3 of 5

4 4. The significance of an overriding interest (an interest which overrides ) is that it is an interest of a third party in registered land which is not shown on the register but in most cases is binding on the buyer, whether or not he/she is aware of it. Molly cannot claim an overriding interest. She is not a tenant, just a guest. Though she is in actual occupation of part of Sarah s property she has not made any contribution to it or has any beneficial interest in it, so does not have any right or interest in the land. Occupation alone is not sufficient for an overriding interest under paragraph 2 Schedule 3 of the Land Registration Act Scenario 3 Questions 1. The issue in this question relates to fixtures. These pass on sale to the buyer unless their removal is agreed before sale. There are three tests used to decide whether an item is a fixture or just a chattel/fitting. These are the tests of: Degree of attachment (how firmly is the item attached to the land or building?). If attached to land other than by its own weight it is likely to be a fixtures, such as the spinning looms in Holland v Hodgson [1872] which were bolted to the floor of the mill; Purpose of attachment: if the item attached for its own benefit it is likely to remain a fitting, but if to benefit the land as a whole it is likely to be a fixture; Permanence of attachment: this can also be relevant as shown in Botham v TSB Bank plc [1996]. The common law presumption is that whatever is attached to the ground becomes part of it. Applying this presumption and these tests to the question facts, it seems clear that the bushes are fixtures as they were growing in the garden and so Bill the seller was not entitled to take them. 2. (a) Raj is not entitled to a share in the house. Abdul and Farah bought the house as joint tenants. In a joint tenancy there are no separate shares as the joint tenants hold the property together as a whole. The rule of survivorship applies, so that on the death of one of two joint tenants the property passes automatically to the survivor. Abdul became the sole owner on the death of Farah and her will was of no effect. (b) Dora may well have a share under a constructive trust. This arises where there is an agreement between the parties and one of them, not named on the title, has made a contribution towards the purchase of the property. A constructive trust therefore needs a common intention or agreement and a contribution. The contribution must be sufficient and it must be financial and related to the purchase of the property, as decided by the court in Lloyds Bank v Rosset [1991]. In this case the common intention can be shown through Abdul s promise to Dora and her reliance on it as in Grant v Edwards (1986). Dora then contributed to mortgage instalments, which would relate to the purchase and so be a sufficient contribution. 3. (a) The application would be made under S.14 of the Trusts of Land and Appointment of Trustees Act Anyone with an interest in the trust land has the right to apply. This includes a beneficiary under the trust. Page 4 of 5

5 (b) Under s.15 of the Trusts of Land and Appointment of Trustees Act 1996 the factors which would be relevant to this scenario would be: the intention of those creating the trust: here the intention was to provide a home for Abdul and Farah; the purpose for which the land is held: it is still used as a home for Abdul; the interests of a secured creditor: here Kempston Bank plc. has a charge on the property. Page 5 of 5