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Li Chun Ho Alvin

Registration
Objectives:
To look at the rules on:
o Land Registration
o Express and Implied easements
o Estoppel
o Dealings and conveyancing
o rescriptive ac!uisition o" easements
o Adverse possession
To think a#out concept and politics o" property in registered land
Land Registration
$#%ective o" registered land is to create a register accurately re"lecting the state o" the
property& It 'ill sho' 'ho is the current o'ner and any third party proprietary interests
a""ect it& It can #e "ound online and guaranteed #y the register S.1 o" the Land
Registration Act 2002&
(eatures o" the Registration system
o The mirror principle
The register should #e an accurate re"lection not only as to 'ho o'ns the
land) #ut also any third party interests a""ecting it&
o The insurance principle
The state guarantees the accuracy o" the register in terms o" 'ho o'ns the
land& It is read to compensate anyone 'ho su""ered a loss due to any errors
present in the register S.103 o" the Land Registration Act 2002.
o The curtain principle
urchasers are not re!uired to look #ehind title registration& They are not
concerned 'ith matters #ehind the entries on the Register) i&e& trusts
a""ecting the land or 'hether the #ene"iciaries* interests in the land are
satis"ied a"ter sale& Therefore beneficial interests are not suosed to
aear on the register.
The register is divided into + categories:
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o The roperty Register,
This descri#es the land) the nature o" the estates registered) and any third
party interests #ene"iting the land) i&e& a right o" 'ay&
o The roprietorship Register
This names the registered proprietor) states the title that has #een
registered) and contains any restrictions 'hich limit the 'ay in 'hich the
registered proprietor can deal 'ith the land& It 'ill record any restrictions
on the po'er o" the proprietor to deal 'ith the land) i&e& i" he is a trustee&
o The Charges Register
This contains notices relating to any #urdens or encum#rances or third-
party rights registered against the estate& They are negative rights) i&e&
restrictive covenants! "ortgages! ease"ents granted over the roert#)
etc& It records any mortgage created #y the registered proprietor o" the
property&
Restrictive covenants arise when a landowner sells part of his land to another. As the land is
retained is close to the land sold, the landowner may want to restrict what can or cannot be
done in the land sold to maintain value and enjoyment of the land retained.
Public rights do not appear in the land register&
Adverse $ossession
This is 'here the rights o" o'nership in land are ac!uired #y simply taking possession
o" the land) 'ithout trans"er o" money and "ormal conveyance&
Can #e something to cause the o'ner to !uestion his o'nership
o It does not threaten the o'ner) #ut #ecoming the o'ner&
Reasons "or having adverse possession
o .n%ust "or someone 'ho occupies land "or a long period o" time and improves
it to "ind that his claim cannot #e upheld
o Land should not #e 'ithdra'n "rom the market, it must remain marketa#le
o The La' should protect de"endants "rom stale claims #y lando'ners&
Re!uirements:
o Buckinghamshire CC v Moran %1&&0'
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The adverse possessor must #e in factual ossession o" the land
The adverse possessor must #e possessing the land 'ith the re(uisite
intent to ossess
o /u""icient length o" time
/tage 0
o There is 1possession2 Pye v Graham )2002*
This is the case o" t'o "armers as s!uatters "arming on 3+ hectares o"
land) 'ho later managed to keep the land&
HL strengthened the position o" s!uatters& 4ou "irst have to #e in
"actual possession& 4ou do not need to #e nec vi) nec clam) nec
precario in stage one&
Pye v Graham )2003*
Facts:
Question:
Decision:
Principle:
5$ 1adverse2 possession can #e claimed 'here the occupation o" land is shared 'ith the
paper o'ner or is en%oyed #y virtue o" some lease) licence or consent "rom the paper o'ner&
Any element o" permission 5E6ATE/ the adverse !uality o" the claimant*s possession&
An adverse possessor must #e dealing 'ith the land in a 'ay an occupying o'ner 'ould that
excludes others and is against the 'ishes o" the paper o'ner&
/tage 3
o The original o'ner 'ould lose their plight "ollo'ing 03 years&
6overned #y the Li"itation Act 1&+0:
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S.1, 7 limitation
o 5o action shall #e #rought #y any person to recover any
land a"ter the expiration o" t'elve years&
S.1- . extinction
o (ollo'ing the expiration o" time limit) the title o" that
person to recover land shall #e extinguished&
During the "irst 03 years:
o 8$TH the adverse possessor and the original o'ner has title&
The title o" the adverse possessor HA/ arisen as soon as the possessor
takes possession&
o In this stage) in terms o" relativity o" title) the original o'ner has #etter title&
A"ter 03 years:
o The o'ner9s title is extinguished, he has "allen #ack
o The Adverse possessor has title #etter than the original o'ner no'&
The title of the adverse possessor is relative to time, NOT from absolute dominion /
ownership
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La/ of $roert# Act 1&2, vs Land Registration Act 2002 on Adverse $ossession
o S.1, o" the Li"itation Act 1&+0
:ith at least 03 years adverse
possession
o S.1- o" the Li"itation Act 1&+0
1at the e0iration of the
eriod prescri#ed #y this Act
for an# erson to bring an
action to recover land
;including a redemption
action< the title of that
erson to the land shall be
e0tinguished.
o S.-, o" the Land Registration Act
1&2,
After 12 #ears) as registered
proprietor) the title 'ould
have #een deemed to #e held
#y the proprietor in trust "or
the s(uatter&
1irror rincile: it 'ould
still re"lect the intending
purchaser all the relevant
rights in the land& It 'ill still
sho' the original lando'ner
has the registered proprietor) it
'ill say it hasn*t #een
extinguished H$:E=ER it is
held in trust "or the s!uatter&
o Di""erent procedure at /tage 3
o The s!uatter >./T make a positive
application to Land Registry "or
registration i" he has #een in 1adverse
possession2 "or the period o" ten years
immediately precedin! the date of his
application
S.&2 Sch 2! $ara 1)1*
Registered proprietor has ?@
days to o#%ect ;veto< the
s!uatter*s application& Sch 2!
$ara 23,
Application usually
de"eated #y parties like
registered charges) i&e&
mortgagees
o Sch 2 $ara , 4onditions o""er
exceptions o" statutory right to re#ut
s!uatter*s claims& $#%ections must be
disregarded 'here:
:here it 'ould #e
1unconsciona#le #ecause o" an
e!uity #y estoppel2 "or the
applicant to #e dispossessed
'hen the circumstances sho'
1the applicant ought to #e
registered as proprietor2
:here the applicant is entitled
1"or some other reason2 i&e&
under an uncompleted contract
o" purchase) to #e registered as
proprietor
:here exact #oundary line is
disputed) reasona#ly #elieved
#y applicant to #elong to hi
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Sch 2 $ara ,)5* to ),*
The and !egistration "ct #$$# makes it tougher %or a s&uatter to be registered as
proprietor'
Stes for Adverse ossession under the 2002 Act
0& The paper title o'ner o" property 'ill no longer 1lose2 title once the limitation period
has run against him&
3& An adverse possessor must apply to #ecome o'ner o" the land&
+& The paper title o'ner has notice o" the application&
A& The adverse possessor cannot #e registered as o'ner i" the paper title o'ner or anyone
else 'ith an interest o#%ects) except in three circumstances&
@& The three exceptions are:
a& Estoppel
#& The adverse possessor is "or some other reason entitled to the land
c& A #oundary dispute&
?& I" none o" these applies) the registered proprietor has t'o years to evict the s!uatter
"rom the land&
B& I" no action is taken to evict the s!uatter) he 'ill have the chance to re-apply to #e
registered&
Adverse ossession of a registered freehold
The s!uatter*s registration as the ne' proprietor is stipulated #y statute to have no
impact on 1the priority o" an interest a""ecting the estate2 LRA 2002 Sch 2! $ara
&)2*&
o The successful adverse possessor is therefore bound by most third party ri!hts
"e.!. easements, profits a prenre and restrictive covenants# which already
encumber the land and have not yet been e$tin!uished.
Adverse ossession in registered land
:here the 03 years* adverse possession are completed prior to 0+
th
$cto#er 3CC+) then
the paper o'ner 'ill hold the property on trust "or the adverse possessor
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:here 03 years* adverse possession are completed a"ter 0+
th
$cto#er 3CC+) then the
paper o'ner 'ill no longer #e statute #arred #ut must comply 'ith the ne' rules
under LRA 2002&
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"sher v' (hitlock )1+2,! 67 .132*
possession is good title against everyone but T')' or someone claiming prior possession'
8acts: :illiamson ;third party occupier< enclosed part o" the other*s land) takes possession o"
the T&$&*s land in 0DA3 and "urthers the possession in 0D@C ;possessory interest<&
:illiamson the possessor dies and leaves a li"e estate to his 'i"e ;Lucy< and then the
remainder to his daughter ;>&A&< in 0D?C& Lucy re-married and the possessory
interest passed on to the daughter& The daughter dies ;intestate<) then the 'i"e dies)
and the 'i"e*s ne' hus#and 'ho occupied the land a"ter his marriage in 0D?0 'ants to
claim the land and so does >&A&*s heir at la' ;Asher<& The heir launches a claim
against the ne' hus#and in 0D?@&
9ssue: 'ho has possession o" the landE The heir o" the ne' hus#andE I" the heir is "ound to
#e the "irst possessor) 'as the ne' hus#and in adverse possession long enough to
claim 0
st
possessionE De"& argued that he had possession all the time&
:ecision;Reasoning:
The court "inds that >&A&*s heirs in essence are the originalF0
st
possessors o" the land&
The divisi#leFun#roken interest 'as passed "rom "ather ->&A&- >&A&*s heirs& As "or the
!uestion 'as the ne' hus#and in adverse possession long enough to claim 0
st

possessionE The ans'er is no #Fc the ne' hus#and only had adverse possession "or
three years& Thus >&A&*s heir is the 0
st
possessor o" the land& <ote that the
ossessor# interest that =illia"son had /as assed to his /ife even before the
e0iration of the li"itations eriod
$ossessor# interest is relevant and relative. 1
st
ossession onl# against other 3
rd

art#.
Ratio:
A"ter expiration o" the limitation period) the adverse possessor o" the land #ecomes
the originalF0st possessor&
ossessory claim ;adverse< may #e passed #y testamentary disposition at any time)
even prior to the expiration o" the limitations period&
Tacking: un#roken chain o" possession) passed the title to the last possessor
Relative title in land:
0< Title holder
3< ossessor ;mere interest #ut deserve compensation even title holder has a #etter title<
3) +
rd
arty
4reate certaint# in ter"s of /ho is using )b# boundar# around the land* but also
uncertaint# )different bet/een the actual use and /hat the surve# sa#s*
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>0ress and i"lied ease"ents
Legal easements created #y implication or prescription&
9"lication
S.22 o" the La/ of $roert# Act 1&2,

$rescritive ac(uisition of ease"ents


5o "ormalities re!uired
Hy#rid 7 elements o" "ictional express grant G long-term user&
La' o" roperty tends to legitimiHe acts o" user& Continued de "acto over a long
period o" time& It presumes "ictional grant 7 "rom prolonged en%oyment o" rights
over land o" another&
$perates positively I creatively 7 generates ne' rights&
.ser in "ee simple 7 o'ner should not #e a""ected #y a user 'hich he may #e
una'are I po'erless to prevent&
Continuous user 7 depends upon circumstances does not destroy claim
.ser as o" right 7 no claim o" rights can #e #ased upon C9s illegal action - user
nec vi ;'ithout "orce< F user nec clam ;'ithout secrecy< F user nec precario
;'ithout permission< must #e readily discovera#le #y o'ner) kno'ledge o" acts
done) po'er to stop or sue) a#stinence o" exercise o" po'er&
rescriptive easements can arise in + 'ays:
In common la') user as o" right "rom 00DJ "or more than 3C years or
through a lost modern grant) 'hich 'as once su#%ect to a grant) #ut has since
#een misplaced or lost&
$rescrition Act 1+32 7
(ollo'ing 3C years o" continuous and uninterrupted use immediately
#e"ore the claim 1next #e"ore some suit or action2) a prescriptive right can
arise as a de"ense to claim that the right did not exist in 00DJ& A#solute
and inde"easi#le) unless en%oyed #y consent #y o'ner 7 00DJ&
It can #e AC years continuous and uninterrupted use immediately #e"ore
the claim 1next #e"ore some suit or action&2 A#solute and inde"easi#le)
unless en%oyed #y 'ritten consent or agreement 7 00DJ&
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The easement only #ecomes legal 'hen registered) 'hen previously not granted #y
deed
S.2- o" the Land Registration Act 2002
.sually 'hen a lando'ner sells part o" a land to another) there 'ill #e no retained
reservation o" easements over the land sold) except "or easements o" necessity&
Kuasi-easements
This is a right over one9s o'n land that is not an easement #ut could #e an
easement i" the t'o plots o" land 'ere o'ned #y t'o di""erent persons&
(heeldon v Burro*s )1+-&*
Facts:
T sold part o" his land to : and retained part on 'hich a 'orkshop stood& T later sold the
retained land 'ith the 'orkshop to 8& The 'orkshop received its light through 'indo's that
opened onto the land sold to :& : erected #oards at the #oundary #et'een the t'o plots o"
land to stop the "lo' o" light to 8*s 'orkshop and 8 knocked them do'n claiming he had an
easement o" light over :*s land&
Question:
Does T have an easement o" light over the land sold to :E
Decision:
5o) it 'as held as T did not reserve the right to access to light in the 'indo's) such a right
cannot #e sustained on :&
Principle:
To claim an implied easement over the land sold) it is necessary "or the !uasi-easement to #e:
0& Continuous and apparent,
2. 5ecessary "or the reasona#le en%oyment o" the dominant land granted, and
+& In use #y the o'ner at the time o" the grant "or the #ene"it o" the part granted&
It can apply "or land held "reehold or leasehold& It does 5$T apply to pro"its a prendre&
:oes not oerate in favor of the seller&
1ore on (heeldon v Burro*s
Court laid do'n t'o propositions) kno'n as the rule o" %heeldon v &urrows& (irstly) 'hen a
lando'ner sells o"" part o" his land and retains part) the conveyance 'ill impliedly grant all
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the continuous and apparent easements over the retained land necessary "or the reasona#le
en%oyment o" the land sold& /econd) there 'ill no retained reservation o" easements over the
land sold "or the #ene"it o" the retained land) except in exceptional cases) i&e& easements o"
necessity& 8oth rested on the maxim o" non-derogation "rom grant&
Timing is there"ore important& : can have an implied grant in "avour o" him as the "irst
person to #uy #ut not in "avour o" 8 'ho had #ought it later& There 'as there"ore no implied
reservation o" an easement o" light in "avour o" 8& : succeeded&
9"lied ?rant:
Auto en"orcea#le against successors in title
5ecessity: C can esta#lish 'ithout provision o" desired easement& $'n tenement
cannot #e used&
Common intention #et'een the trans"eror and the trans"eree
Kuasi-easements
(heeldon v Burro*s )1+-&*
revent derogation "rom grant on su#division o" land& It applies to acts o" user
'hich 'ere 1continuous and apparent "or en%oyment o" dominant tenement2
exercised po'er prior to and at date o" trans"er&
S. 22 o" the La/ of $roert# Act 1&2,
Easements are under the recogniHed diversity o" o'nership&
$rorietar# >stoel
Doctrine o" estoppel restrains that person "rom any unconscientious 'ithdra'al o" his
representation i" the person to 'hom it 'as made has mean'hile relied upon it to her
o'n detriment&
o It ena#les the court to do %ustice
o $utcome o" its application must indeed #e %ust
Re!uired re!uirements
o Representation ;or an assurance o" rights<
Representation is present only i" the representor intended his assurance
to #e relied upon
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o Reliance ;or a change o" position< and
Reliance occurs only i" the representee is caused to change her position
to her detriment&
o Detriment ;or unconsciona#le disadvantage<
Disadvantage results) ultimately) only i" the representation) once relied
upon) is unconsciona#ly 'ithdra'n&
"ssurance must be made B+F)!+ detriment&
High threshold 7 must 1shock conscience o" court2
Li"itation of use: re(uire"ent of S.2)1* o" the La/ of $roert# )1iscellaneous
$rovisions* Act 1&+&
o S.2)1* re!uires agreement to #e put in 'riting in order to #e #inding& Cobbe v
,eoman-s !o* %200+'
o 8.T Thorner v Ma.or )200&* suggested other'ise

Cobbe v ,eoman-s !o* %200+'


Facts:
Question:
Decision:
There 'as no 'ritten agreement reached) there"ore the court re%ected a claim to proprietary
estoppel #y Co##e& 4eoman*s Ro' pulled out o" the deal once planning had #een granted&
Principle:
House o" Lords held that C had no #asis "or claim 7 no estoppel generated #y oral agreement)
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that regarded #y all parties as #inding merely in honour and 'hich had explicitly envisaged
additional legal e""ect& Conscious reliance o" honour alone 'ill not give rise to an estoppel ;a
commercial risk<&
(or a success"ul claim in estoppel) there must #e more than a general sense o"
unconsciona#ility& The claimant >./T sho' a #elie" that he has a certain property right in
the land or an expectation he 'ill ac!uire one&
9ves v @igh %1&2-'
Facts:
#uilt a house) and : #uilt a #lock "lats on neigh#ouring land& D noticed that the "oundations
o" the "lat eroded on his land& 8oth parties agreed D could have a right o" 'ay over :9s land
#et'een D9s land and a road& In exchange) : can keep the "oundation on D9s land& This right
'as not registered nor 'as any deed prepared& The "lats 'ere eventually sold to Ives& Ives
claimed D has no right o" 'ay over the land& Ives sued "or trespass and alleged there 'as lack
o" registration&
Question:
Does D have a right over the landE
Decision:
Lord Denning >R determined that #y e!uity) Ives is #ound #y D9s right despite the lack o"
registration on three grounds:
The original contract does not need to #e registered&
:right9s ac!uiescence and encouragement created estoppel that #ound Ives&
Ives) kno'ing o" the agreement and taking #ene"it o" it) is #ound #y the #urden also- mutual
#ene"it F mutual #urden&
This is #ecause o" t'o reasons: there is the idea o" mutual #ene"it and #urden) 'here #oth
parties cannot en%oy the #ene"it o" :9s "oundation on D9s land and then deny that they 'ere
su#%ect to the #urden imposed #y it& /econdly) D and : 'ere estopped "rom denying they
'ere #ound #y D9s e!uity through their conduct& There"ore cannot deny that&
Principle:
1Estoppels arising "rom representations made #y o'ners o" land that rights exist a""ecting
their land 'ill) unless in "orm they are limited to the duration o" the interest o" the
representor) #ind successors in title&2
>stoel as recogniAed in co""on la/
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o S.112 o" the Land Registration Act 2002
1It is here#y declared "or the avoidance o" dou#t that) in relation to
registered land) each o" the "ollo'ing 7
a< An e!uity #y estoppel) and
#< A mere e!uity
has the e""ect "rom the time the e!uity arises as an interest capa#le
o" binding successors in title ;su#%ect to the rules a#out the e""ect
o" dispositions on priority<&
>ere e!uity "or instance) can re"er to having a deed set aside on
grounds o" "raud or undue in"luence
Both rank as potential overriding interests&
"ll rights arising by proprietary estoppel are property rights'
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:ealings and conve#ancing
8e"ore exchange
o 8uyer inspects the property, oral agreement is reached
Consideration and acceptance& Entering a contract through Standard
4onditions of Sale! ,
th
edition 2011&
Risk is trans"erred to the #uyer ;Condition @&0&0<
8uyer needs to insure the premises a"ter stage o" contract
Exchange o" contract
o 8ound to go through deal, legally #inding
Legal "ormalities must #e satis"ied
S.2 o" the La/ of $roert# 1iscellaneous $rovisions Act 1&+&
They exchange contracts) document in 'riting) contract to sell the
land) #oth party signs identical copies o" document) each o" them
has signature o" the other party sho'ing they have entered into
contract S.2)3*.
.pon purchase) the purchaser is protected #y an o""icial search giving
priority 0@ days& :hen the land is #ought) the solicitor 'ould make an
o""icial search priority period o" 0@ days #e"ore completion& There"ore) the
purchaser 'ill not #e a""ected #y su#se!uent transactions "ollo'ing his
purchase&
.sually at this time) @L deposit is paid, 'as 3@L in the economic trou#les
in 3CCD&
/n e&uity0 the purchaser *ould have ac&uired an e&uitable interest at
this stage *hen they e1change contracts'
Completion
o >oving day, #uyer moves in during a"ternoon
The deed still has to meet the "ormal re!uirements o" S.,2)1* o" the La/
of $roert# Act 1&2, conveyances to #e #y deed& 9t re(uires a deed to
create or transfer an# legal roert# right&
The deed is de"ined #y S.1 o" the L$)1$*A 1&+&) 'hich "orms part o" the
title o" deeds "or the #uyer& 4ou sho' the trans"er) 'ith the deed signed #y
the seller&
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An instruction to the land registry is sent) produce the deed to them and
they 'ill go to the registrar to change names&
There is a '( day re!istration !ap.
Registration
o :ork done #y la'yers at the Land Registry
o 5othing happens until stage o" registration, legal title is then changed&
o Registered title passes here&
o /n common la*0 the purchaser ac&uires legal title at this stage *hen he is
registered as proprietor'
Si"ilarities and differences bet/een co""on la/ and e(uit# /hen urchasing roert#
-Entering a contract in e!uity is identical to
in common la', same statutes
-Remedy is di""erent& E!uity 'ill give
secific relief! secific erfor"ance)
common la' 'ill a# da"ages 'hen there is
a #reach&
-In common la') nothing #e"ore exchange
done is considered legal e""ect, only
promises& In e!uity) it vie's bu#er as having
a rorietar# clai" even at exchange o"
contract stage& There is onl# contractual
rights in common la' at this stage) 5$
proprietary claim&
-E!uity maxim: 1e!uity looks on as done that
should #e done&2
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Trusts
Objectives:
Trust in land
o 8ene"iciaries
o Trustees
Trust in land
Trusts are "ounded on the 'illingness o" e!uity) in the "orm o" e!uita#le interest or
o'nership against the legal title& /uch a #ene"icial entitlement creates a trust
relationship&
A trust allo's o'nership in property to #e split #et'een legal and e!uita#le
o'nership
o Legal title to property is held #y one or more persons) the trustees
o E!uita#le title is o'ned #y the #ene"iciary or #ene"iciaries&
Trusts are esta#lished "or many reasons
o To control and protect "amily assets
o :hen someone else is too young to handle their legal a""airs in land or are
incapacitated
o To structure "amily 'ealth and inter-generational trans"er o" money or
property 'hen alive
o To pass on money or assets under the terms o" a 'ill
o To allo/ judges to recognise contributions to the fa"il# ho"e
7eneficiaries
8ene"iciaries have a num#er o" rights to the land
o Right to occupy the land, they have e!uita#le property right) 5$T legal) in the
house&
o Right to #e consulted a#out any sale&
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7eneficial interest in the for" of a constructive trust
Constructive trusts arise in instances 'here it 'ould #e unconscionable "or the o'ner
to claim the legal estate only "or himsel"&
(inding a constructive trust
o There must #e evidence o" an agreement "rom conversations #et'een parties
in the past that the claimant is to have a share in the property ;!osset<
o This must #e supported #y evidence o" detrimental reliance ;!osset<
o I" there is no evidence o" an express common intention then a common
intention can #e implied #y the courts #ut the evidence needed in support must
#e contri#utions in money to'ards a purchase& Anything less 'ill not #e
su""icient to in"er a constructive trust& ;!osset<
)onstructive trusts do NOT re*uire written evidence for its operation+ S.,3)2* o" the La/ of
$roert# Act 1&2,&
loyd-s Bank v !osset %1&&1' A4 10-
7et/een $aer O/ner and 4lai"ant clai"ing constructive trust
Facts:
A 'i"e lived 'ith her hus#and 'ho had sole legal title in a house& /he assisted su#stantially
'ith the house 'hich 'as originally in disrepair) #y renovating and decorating the house #y
hersel"& Later the marriage #roke do'n) >r Rosset de"aulted on repayments so the #ank
sought possession&
Question:
Does >rs Rosset have a constructive trustE
Decision:
HL declined to "ind >rs Rosset had a constructive trust arisen "rom her 'ork in the property&
Principle:
6ives a clear set o" principles: this is 'hat you have to look "or: actual agree"ent lus
detri"ent& 8elieve that you had an agreement Common intention) constructive trust&
I" you can9t "ind the intention) you have a "all#ack&
I" you can "ind evidence o" the agreement) evidence is direct %inancial contribution&
Lord 8ridge: Constructive trust depends on proo" #y + elements:
1. The co""on intention or a bargain #et'een the parties
2. Change o" position #y the claimant or the "act he can sho' he relied on the #argain
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and suffered to his detri"ent
+& The legal o'ner has denied the rights o" the claimant&
2tack v Do*den %200-' BC@L 1-
7et/een @olders of Doint legal title in the house.
Facts:
An unmarried couple lived together "or 0D years and #ought a house to live 'ith their
children& The house 'as purchased 'ith legal title in their joint na"es, the lady contri#uted
more than @CL& .pon relationship #reakdo'n) they 'anted to split the shares) #ut no
declaration o" trust 'as made indicating ho' the #ene"icial interest should #e divided&
Question:
Ho' do you decide proportionsE
Decision:
HL: :here there is a %oint tenancy) starting point is the assume e!ual shares #y #ene"icial
%oint tenancy& .pon considering other varia#les) i&e& lady contri#uted more) #oth kept their
"inances separate) deemed lady 'as entitled more than @CL o" the shares o" the house&
Principle:
Things to consider a< in) cases o" %oint legal title) rebutting resu"tion that e!uity "ollo's
the la' determining !uantum) and #< principles court should "ollo' HL 'hen deciding on
!uantum& 8ocus on intentionE intention is Fe# 3 not resulting trust&
Kuantum o" a #ene"icial interest under constructive trust should 5$T only #e determined #y
"inancial contri#ution& Look at the conduct o" the parties&. $#iter: MThe la' has moved onM -
per :alker) dou#ting Rosset& Dissent: 5eu#erger on 'hy resulting trusts are pre"era#le&
:hat you are dealing in domestic cases) they are common intention constructive trusts&
Resulting trusts- 2tack v Do*den0 do not *ork in domestic cases'
/imilarities and di""erences #et'een constructive and resulting trusts
/imilarities
-8oth are in"ormal
-8oth does not re!uire 'ritten evidence
-8oth rely on intention) more positive in
constructive trusts& In resulting trust)
intention is presumed and need not be
e1pressed&
Di""erences
-Constructive trusts rely on a #argain #et'een
the t'o parties, resulting trust relies on
contributions o" the parties&
-/hares a'arded under a constructive trust do
not depend on e1act contributions o" the
parties, in a resulting trust the shares are
usually the e&uivalent o" the amount
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contri#uted to the initial purchase&
Midland Bank v Cooke C" %1&&,'
7et/een $aer O/ner and 4lai"ant clai"ing beneficial interest
Facts:
8e"ore their marriage) >r and >rs Cooke #ought a house& The house 'as registered in 1r
4ooFeGs sole na"e& >rs Cooke did not make any "inancial contri#ution other than a gi"t o"
N0)0CC "rom >r Cooke*s parents that 'as placed into the house& /he made no "inancial
contri#ution to the mortgages& >r Cooke took a #usiness loan and placed the house as
security in 0JD0& In the same year) 1rs 4ooF signed a consent for" ostoning her rights
to the roert#. The property 'as conveyed in their %oint names in 0JDA& In 0JDB) the #ank
sought possession upon outstanding payments& >rs Cooke claims she has a one hal"
#ene"icial interest in the property 'hich overrides any interests o" the #ank&
Question:
Does >rs Cooke have a one hal" #ene"icial interest that overrides that o" the #ankE
Decision:
Oudge: :hichever 'ay you use to "ind the #ene"icial interest) once you determine the
proportion) the court has discretion to look at all the "acts to decide the #ene"icial interest&
>rs Cooke 'as proving her case under second heading) under a contri#ution) i" the court look
at contri#ution) it 'ould #e only ?L& The court "ound she 'as entitled to more #y imposing a
constructive trust on the proceeds o" sale, she 'as entitled to hal" o" their matrimonial house&
Principle:
Oudge tried to list guidelines o" constructive trust&
!ule in +tridge applies here'
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7oland
(illiams 3 Glyn4s Bank v Boland %1&+0'
7et/een the 1ortgagee and @older of subsidiar# clai"s of roert#
Facts:
>r 8oland and >rs 8oland #ought a house) 'ith >rs 8oland making a significant financial
contribution& >r 8oland has sole legal title in the house& He puts the house on mortgage to
raise money "or his #usiness 'ithout >rs 8oland*s kno'ledge& He later de"aulted and the
#ank sought to possess the house& >rs 8oland claims she has a su#sidiary claim under a
constructive trust& Her interest is #inding #ecause she is in occupation&
/t *as 5)T an ac&uisition mortgage'
Question:
Does >rs 8oland have an interest that can override the #ankE
Decision:
Court agreed) #es! she has a beneficial interest /hich can override the banF& The pre-
cursor o" Sch 3 $ara 2 o" the Land Registration Act 2002 is S.-0)1*)?* o" the Land
Registration Act 1&2,) under actual occupation'
Principles:
Boland does not protect mortgagor' It is 5$T open "or >r 8oland to say he has an
overriding interest #y mortgage to the #ank& It may protect #ene"iciaries 'ho are not
mortgagor&
4ou CA55$T argue you have a #ene"icial interest #ecause you live there&
4ou can argue "inancial propriety over the mortgagee F #uyer F disponee& It protects "inancial
priority over a mortgagee and #uyer& I" she has priority) she 'ill get the "irst share o" the
house #e"ore the 8ank& There"ore i" there is not enough) the banF /ill taFe the fall.
The "act o" actual occupation triggers overriding interest& Boland does not really give right o%
occupation to Mrs Boland6 her interest is overriding because she is in actual occupation'
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Relevant legislation to 7oland
o S.15 o" the TOLATA 1&&2
(or >rs 8oland to stop the action to sell the house #y the 8ank) she
has to sho' under S.30 o" ADA that she can repay in time) the
remaining part o" the mortgage& The court 'ould also look at the
circu"stances of the case) i&e& children living in the house&
o S.30 o" the Ad"inistration of Dustice Act 3 S.1,)d* o" the TOLATA 1&&2
S.1,)d*: 1Interests o" an secured creditor o" any #ene"iciary2
Court has to consider this, paramount&
4onclusion of 7oland
The Court did not 'ant to esta#lish "uture cases o" >rs 8oland& They had to change
the practice to avoid similar cases&
Lord :il#er"orce 'anted to change conveyancing practice to #e more care"ul&
o :aiver
5o' unlikely a #ene"iciary 'ill get priority
Pno'ing 'hat*s happening
o'er o" re"usal
o I" lenders "ind other people living there) they 'ill make an assumption that
they have a su#sidiary claim #y 'ay o" #ene"icial interest& The lender 'ill
make them sign a 'aiver) giving up right to priority) 5$T to property&
This 'orks through estoppel& The occupant is not allo'ed to go #ack
on a promise&
There"ore) it avoids "uture >rs 8olands&
/omeone 'ho is in occupation has po'er o" re"usal& Impact is di""erent
and su#tler&
O/ner Occuation
Objectives:
Legal relations o" o'ner occupation:
o the trust o" land,
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o the mortgage
8eyond Boland) 1central pro#lem o" land la'2 in relation to #ene"icial interests
8ene"icial interest #ounding on mortgagees
.ndue in"luence
The 1ortgage
>ortgage is the grant o" an interest in property as security "or a loan&
o The mortgagee is the person to 'hom a mortgage is granted and 'ho ac!uires
an interest in the property "or the mortgagor as security "or money lent&
o The mortgagee is the person to 'hom a mortgage is granted and 'ho ac!uires
an interest in the property o" the mortgagor as security "or money lent& The
mortgagee retains legal title to their property&
As a proprietary interest in land) it is a legal or e!uita#le interest protected 'ith a
notice on the charges register in the deed& It is 5$T an overriding interest&
/hould the mortgagor "all short to meet the mortgage payments
o The mortgagor can sho' the a#ility to clear the de"ault 'ithin the remaining
period o" the mortgage loan& S.32)2* o" the Ad"inistration of Dustice Act
1&-0 provides the court may suspend an order "or possession i" the mortgagee
can settle the arrears in a reasonable a"ount of ti"e& This has #een
interpreted as one year) extended #y B2 v 5organ )1&&2*
>ethods o" claiming a #ene"icial interest in a property
o Express trust
This is a trust 'hich is expressly created #y the settlor& The settlor is a
person 'ho puts the assets into the trust& He decides ho' the assets and
income received "rom it should #e used&
It must comply 'ith S.,3)1*)b* o" the La/ of $roert# Act 1&2,
'hich re!uires evidence in 'riting in a deed& 9t is also about the
for"alities governing the e0ress declaration of trust. The trust 'ill
#e unen"orcea#le unless there is 'ritten evidence complying 'ith the
statute& It CA5$T #e oral&
/tandard Land Registry (orm TR1 is a valid express
declaration o" trust&
o Express #argain constructive trust
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:hen the title holders intention is expressed rather than in"erred "rom
their conduct& This is 'hen there is evidence o" an agreement #et'een
the parties that they are #oth to have a share in the property& This
>./T #e supported #y evidence that the claimant relied on this and
acted to his detriment&
o Implied #argain constructive trust
:hen there is no evidence o" an agreement #et'een the legal o'ner
and the claimant to share the e!uita#le interest& $nly direct
contri#utions to the purchase price 'ill #e enough to in"er a
constructive trust in these circumstances&
A beneficial interest can be !ained behind a constructive trust by oral promise by the le!al
title holder with detrimental reliance ;+ves v +ves< or ma,in! a financial contribution to the
purchase of the house ;Burns v Burns<&
An implied trust is a trust which arises because of circumstances and not throu!h the e$press
intention of the settlor&
o'ers o" Trustees
o They have the po'ers o" a#solute o'ner) holding legal title to property 'hich is
held #y 'ay o" a trust
S.2 o" the Trusts of Land and Aoint"ent of Trustees Act 1&&2:
1The trustees o" land have in relation to the land su#%ect to the trust
all the po'ers o" an a#solute o'ner&2
o They can #uy) lease and mortgage land
S.2)3* o" the TOLATA 1&&2:
Trustees can purchase "reehold or leasehold land in the .P& They
may invest in land to provide accommodation "or the #ene"iciaries
or as investment or any other reason&
o o'er to partition the land
S.- o" the TOLATA 1&&2:
Allo's the trustees to divide the land up #et'een the #ene"iciaries&
/.8OECT to:
o 8ene"iciaries must #e o" "ull age) must all consent and must
#e a#solutely entitled&
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o o'er to "orce the #ene"iciaries to take a conveyance o" the land&
S.2)2* o" the TOLATA 1&&2:
I" so) the trustees 'ill cease to #e trustees and the land 'ill #e held
#y the #ene"iciaries& /.8OECT to:
o 8ene"iciaries must #e o" "ull age and not under any legal
disa#ility) and they must #e a#solutely entitled&
o o'er to delegate their po'ers in relation to the land
S.& o" the TOLATA 1&&2&
o Duty to consult the #ene"iciaries
S.11 o" the TOLATA 1&&2:
The trustees have no a#solute duty, only need to consult 'here
practica#le& They do not have an o#ligation to act on #ene"iciaries*
suggestions or comments unless it is 1consistent 'ith the general
interest o" the trust2&
The exercise o" the trustees* po'ers under S.13 o" the TOLATA 1&&2:
0& The trustees can exclude the right o" the #ene"iciary to occupy the trust property
'here there are t'o or more #ene"iciaries&
3& The trustees cannot exclude or restrict the occupation o" all the #ene"iciaries&
+& The right to exclude the #ene"iciaries "rom the property must not #e exercised
unreasona#ly&
A& The trustee can never "orce a #ene"iciary already occupying trust land to cease to #e in
occupation unless he consents or the trustees have taken the issue to court&
@& The trustees have the po'er to impose reasona#le terms such as the payment o"
compensation or outgoings on the property&
?& The #ene"iciary 'ho remains in occupation o" the property may #e made to "orego a
#ene"it arising under the trust either money or in another "orm&
-. A court order is re(uired /here the beneficiar# is to be re"oved fro" current
occuation as oosed to being recluded fro" "oving in.
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Resolution #y the court o" disputes in a trust o" land
o S.15 o" the TOLATA 1&&2:
Any person 'ho is a trustee o" land or has an interest in the property
may apply to the court to intervene in disputes over trusts o" land&
:hen minors are involved) the court must regard S.1,)1*)c* and
consider the merits o" the case&
rotection o" purchasers
o :hen a purchaser #uys land) he needs to #e sure that the purchase is "ree o"
the rights o" the #ene"iciaries under the trust&
The purchaser should ask the person 'ith #ene"icial interest to sign a
'aiver&
I" they 'ould #e moving out) there is no need to sign anything&
7$8 o% houses in Britain are o*ner9occupied'
4lai"ing overriding interest: unregistered interests 'hich override a registered
disposition under Sch 3 o" the Land Registration Act 2002:
o There are interests divided into three categories 'hich override:
/ch + ara 0
This incorporates legal leases seven years or less&
Sch 3 $ara 2
An interest 'ill #e #inding upon a purchaser i" the holder o" the
interest can prove that:
o The interest held is a proprietary one) legal or e!uita#le,
o The interest existed at the time o" the disposition ;the
dealing and sale o" the land<,
o They 'ere in actual occuation o" the land relating to
the interest A5D
The occupation 'ould #e o#vious upon a
reasona#ly care"ul inspection o" the land, $R
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Even i" not o#vious) the purchaser had actual
kno'ledge o" the interest&
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T#es of overriding interest
o /hort leases
Sch 3 $ara 1 o" the Land Registration Act 2002
o Interests o" persons in actual occupation
S.-0)1*)g* o" the Land Registration Act 1&2,
Sch 3 $ara 2 o" the LRA 2002
o Easements) pro"its a prendre
Sch 3 $ara 3 o" the LRA 2002
o $ther interests
A customary right
A pu#lic right
Local land charge
Relevant social housing tenancies&
-nterests of a secured lender have to be protected by the entry of a notice on the char!es
re!ister+ they0 like mortgages0 are 5)T overriding' Mortgages are paid o%% in the process o%
proceeds o% sale to another disponee : purchaser o% the property'
5o overriding status %or e&uitable easements'
"bbey 5ational Building 2ociety v Cann %1&&1'
Facts:
$n the day o" completion o" the house) >rs Cann 'as on holiday& Her son and hus#and
started moving "urniture and #elongings into the house +@ minutes #e"ore completion had
taken place& The house 'as put on mortgage #y the son 'ho later de"aulted& >rs Cann argued
she had overriding interest #y reason o" actual occupation&
This /2 an "c&uisition Mortgage'
Decision:
These preliminary acts 'ere not su""icient to constitute actual occupation&
It 'as held the #ene"iciary interest "ust #e in occupation 'hen the mortgage 'as granted)
5$T 'hen it 'as entered in the register&
It 'as held that on an ac!uisition mortgage) the completion and grant o% mortgage are
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simultaneous no scintilla temporis ;moment in time&< There"ore) it is .5LIPEL4 to esta#lish
an overriding interest on ac!uisition mortgage&
Principle:
The relevant time to esta#lish actual occupation "or the purpose o" Sch 3 $ara 2 o" the LRA
2002 is the date o" completion) not the date o" registration& Actual occupation 'ill not #e
esta#lished upon mere preparatory acts to occupy&
City o% ondon Building 2ociety v Flegg %1&++' A4 ,5
8acts:
A married couple purchased a property 'ith contri#utions provided #y the 'i"e*s parents&
There"ore the parents ac!uired a #ene"icial interest in the property& The property 'as
mortgaged to the #uilding society 'hich later sough repossession&
6uestion:
Is the 8uilding /ociety #ound #y the #ene"icial interests o" the parentsE
:ecision:
House o" Lords: 5o) there cannot #e an overriding interest in the case o" t/o trustees&
The #ank has success"ully overreached those interests 'hen advancing mortgage monies
to the married couple Q t'o trustees&
o SS2 and 2- L$A 1&2,: To overreach an interest) the purchaser must pay the
purchase monies to at least t'o trustees or a trust corporation&
$rincile:
/uccess"ul overreaching re!uires payment o" monies to at least t'o trustees& .pon #eing
overreached) #ene"icial interests 'ill not #ind a purchaser regardless o" actual occupation
or not&
/ch + ara +
Impliedly created legal easements 'ill #ind a purchaser
provided either:
o the person to 'hom the disposition is made actually
kno's a#out their existence,
o the interest 'ould #e o#vious upon reasona#ly care"ul
inspection o" the land, or
o the interest has #een exercised in the year immediately
preceding the disposition&
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o The holder o" the overriding interest may also use S.-0)1*)g* o" the Land
Registration Act 1&2,:
An interest in land is overriding 'here the person 'ith the interest is in
actual occupation) unless the interest is not disclosed 'hen an in!uiry
is made o" them&
This provision 'ill 5$T apply to interests that has #een overreached,
City o% ondon Building 2ociety v Flegg'
Cook v Mortgage Business plc R3C03S
8acts:
Cook) among many others) claimed overriding interest over the disponee) 'ho is the #ank
;>ortgage 8usiness<& The #uyers have mortgaged it as part o" a "raudulent scheme& The
disponee have "alsely promised the current occupiers) 'ho 'ere the "ormer o'ners) that they
had a valid lease and can have the right to live in the property&
6uestion:
Does Cook have overriding interestE
:ecision:
5o, con"irmed position esta#lished in Abbey National &uildin! .ociety v )ann& Asserts
interests o" lends have priority over occupiers ;"ormal o'ners<, sho's it is incredi#ly di""icult
to make a success"ul claim o" overriding interest against the #ank& They 'ould have #een
leaseholders #ut "or the scam&
$rincile:
!oyal Bank o% 2cotland v +tridge %1&&+'
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Setting aside suret# "ortgages against one of joint "ortgagors /ho /as not the
rincile debtor.
Facts:
D 'ives claimed undue in"luence "rom charges over their matrimonial homes& The homes used
to #orro' money had no direct involvement 'ith the #usiness that needed the money& The
house 'as o'ned in the %oint name o" the 'i"e&
Decision:
The House o" Lords changed the procedures to prevent instances o" undue in"luence&
Principle:
A#ility to set aside 'here evidence o" undue in"luence& Lender >./T esta#lish that it took
certain steps to ensure the complainant received indeendent legal advice regarding the
practical implications o" the mortgage transactions&
Pey steps the lender should take:
o 8e"ore the mortgage transaction goes ahead) the lender should:
6ather "rom the potential complainant the name o" the solicitor acting "or him
and seek 'ritten con"irmation "rom that solicitor that the potential complainant
has #een advised as to the practical implications o" the proposed transaction
rovide the advising solicitor 'ith the in"ormation he re!uires to give
appropriate advice to the potential complainant
In"orm solicitor o" any concerns he has a#out the potential complainant*s
understanding o" the transaction F vulnera#ility&
o E""ect o" such means the mortgage transaction cannot #e set aside against the lender
#ecause the potential complainant has no' #een appropriately advised&
o The other %oint mortgagor 'ho is not the principle de#tor can set aside the "ortgage
i" the lenders have not "ollo'ed the Etridge protocol&
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Severance
This is turning %oint tenancy into a tenancy in common
Ooint Tenancy Tenancy in Common
-Everyone has e!ual share
-.pon death) there is survivorship o" title
-:ills have no e""ect, 'ill #e ine""ective to
severe
-Intestacy rules do not apply
-Can #e e!ual F une!ual shares
-.ndivided shares
-:ill pass to others according to 'ill F
intestacy rules
-5o survivorship o" title
The severance has to #e done #y living people, CA55$T #e in 'ills&
Can #e executed through S.32)2* 1e"orandu"
o $perates unilaterally, allo's any %oint tenant) 'ith the agreement o" another)
to #e treated at tenancy in common&
o It is a current irrevoca#le act&
o (irm expression o" 'ill
o 5otice is to #e in 'riting) sometimes called a memorandum) does not have to
#e a deed&
Can #e executed #y other means (illiams v ;ensman )1+21*
o 1Act operating on his o'n share2F voluntary sale) or #ankruptcy F charging
order ;.nilateral<
I" I sell you my o'n share) the person #uying it is a tenancy in
common& I can sell you my share) 'hich 'ould #e e""ective& A %oint
tenant can sell a share) #ut the #uyer 'ill come in as a tenant in
common) #ecause he F she lacks unity& It 'ill sever the %oint tenancy&
o >utual agreement ;>utual<
Can #e #y in"ormal oral agreement& It does not necessarily mean a
#reak do'n in relationships& It can #e 'holly in"ormal, need not #e an
en"orcea#le contract&
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o >utual 'ills ;>utual<
It is normally ine""ective #ecause right o" survivorship 'ill prevail) it
'ill #e ine""ective to sever&
Ho'ever) mutual 'ills 'ill 'ork 7 course o" dealings to sever&
Can occur #y homicide ;.nilateral<
o :here a %oint tenant kills another) the right o" survivorship means he 'ould
retain all o'nership o" property despite the criminal conse!uences&
o S.2 o" the 8orfeiture Act 1&+2 discretion
Court can temper the policy i" it is less than murder&
i&e& i" it is death o" dangerous driving& I" so) not really a good
idea to sever the tenancy& Court may "eel not appropriate to
sever the tenancy so everything goes to the estranged "amily,
this is court discretion&
/everance #et'een couples
o Couples co-o'ning property) co-o'nership in a contextual approach& It is
a#out couples) t'o people co-o'ning property&
o :hen you have %oint tenants holding in trust "or themselves) as #ene"icial
tenants) 'here there is severance) it can $5L4 go in $5E direction&
In common la') there is no severance& >utual agreement to sever only
operate in e!uity&
They no' hold as tenants in common& The shares 'ill #e e!ual) hal"
each&
I" one dies) the undivided hal" share 'ill pass in terms o" the
'ill or intestacy&
/everance #et'een more than t'o people
o I" + trustees) then have to hold as %oint tenants&
o In e!uity) %oint tenants and tenants in common& They hold as trust "or
themselves as #ene"iciaries&
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o :hen there is a severance) it is likely to depend on the manner o" severance&
I" all mutually agree as tenants in common) then in e!uity 7 legal %oint
tenants not a""ected& They 'ill hold as trusts "or themselves as tenants
in common) one third share each&
I" there 'as an unilateral agreement) %ust one tenant 'anted to sever
.sing S.32)2* memorandum& At common la') three 'ay
tenancy not a""ected&
o 8ut in e!uity) that persons* share 'ill #e severed& That
'ould #e one third share&
o The other t'o tenants 'ill hold #et'een them a t'o
thirds share& The t'o tenant*s relationship 'ill not #e
a""ected #y the other tenant*s severance& The t'o 'ill
/TILL #e in %oint tenants&
o The #ene"icial interest is divided into t'o une!ual)
undivided shares&
o :hat happens i" one o" the %oint tenant dies
The other %oint tenant 'ill o'n the t'o thirds in e!uity& The severed
tenant 'ill still only hold one third share&
;arris v Goddard <=>?@A
Facts:
A hus#and and 'i"e 'ere %oint tenants o" their matrimonial home& The hus#and ran a retail
#usiness& (ollo'ing relationship #reakdo'n) the 'i"e le"t and served a divorce petition&
aragraph + stated) 1such order may #e made #y 'ay o" trans"er or property andFor settlement
o" property andFor variation o" settlement in respect o" the "ormer matrimonial home & & & and
other'ise as may #e %ust2& Three days #e"ore the hearing o" the petition) the hus#and 'as
in%ured in a car crash and 'ent into a coma, he never recovered& The executors o" the hus#and
argued the %oint tenancy had e""ectively #een severed #y paragraph +) constituting a valid
notice o" severance pursuant to S.32)2* o" the La/ of $roert# Act 1&2,&
Question:
Has severance #een e""ectedE
Decision:
5o) a divorce petition re!uest orders made in respect o" the matrimonial home did not amount
to e""ective 'ritten notice& 9t "ust evince intention to sever i""ediatel#& /everance had
not #een e""ected #e"ore her hus#and*s death& There 'as insu""icient intention to sever, "uture
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court order may not make the severance&
Principle:
The /ritten notice >./T convey an une(uivocal and irrevocable intention to sever
i""ediatel#! /hether e0ress or i"lied& Re!uires the severing %oint tenant to
communicate a clear desire to regard himsel" "rom this point on as having a distinct and
realiAable share in the property and therefore no longer /ishing to benefit fro" the right
of survivorshi&
=hat severance isnGt
o At la'
/everance is at e!uity) 5$T at la'& 4ou can*t have tenancy in common
at common la'& There"ore) %oint tenancy cannot #e severed in common
la'&
o 8y 'ill
Inter viros& Happens 'hen alive) not #y death&
o artition
/everance is 5$T dividing the property into "lats& Dividing up the
house) can #e #y deed to change the title) so there are separate titles&
Tenants in )ommon, li,e joint tenants, have unity in possession. They have ri!hts over the
property.
Leases
Objectives:
.nderstanding o" leases
Rules on leases #et'een original landlord and tenant
o Ho' they #egin
o Ho' they end
Idea o" "or"eiture ;"kici v ! Butlin 200,<
Idea o" repudiatory #reach ;;ussein v Mehlman 1&&2<
Advising landlords and tenants on leases
Bnderstanding of leases
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S 1)1*)b* o" the La/ of $roert# Act 1&2,: A lease or 1a term o" years a#solute2 is a
legal estate& They give rise to proprietary rights in land&&
o The lease 'ill not take e""ect in la' until properly registered&
(ailing to register Q Leases loses status as a legal estate Q :ill only
!uali"y as a mere contract to grant a legal lease&
S,2)1* o" the L$A 1&2,: A deed is re!uired to create a legal lease& H$:E=ER) there
are exceptions:
o S.5)1*)c* o" the Land Registration Act 2002: -f the lease is for less than
seven years, it does not re*uire re!istration&
o S.,5)2* o" the L$A 1&2,: -f the lease is for three years or less, a le!al lease
can be created orally.
Regardless o" ho' short it is) one month or one year) a lease 'ill still #e considered
"or a term o" years a#solute and 'ill take e""ect in la'&
Contents o" lease constitute private law&
Characteristics o" a lease:
o Lord Templeman suggested three characteristics o" a lease existed:
The tenant is given exclusive possession
The possession is "or a "ixed) determinate period o" time
The lease is exchanged "or a rent or other consideration) can #e #y
premium or periodical payments&
Termination o" leases: 'hen determined) tenant 'ill no longer have an estate in land,
landlord 'ill #e entitled to recover the land immediately and tenant no longer has
exclusive possession o" the property&
o 8y "or"eiture Q Landlord terminates a "ixed term tenancy "or Tenant*s #reach
S.152 o" the L$A 1&2,: Lessor must #e served a "or"eiture notice on
the lessee and to re!uire the #reach o" covenant to #e remedied i"
capa#le o" #eing remedied&
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"kici v ! Butlin )200,*
Facts:
Question:
Decision:
The "or"eiture notice 'as invalid #ecause it "ailed to speci"y the #reach the tenant had
committed) #ut instead speci"ied a #reach the tenant had not committed&
Principle:
1ossession2 has a very important meaning) does more than %ust articulate the idea o"
#are physical occupancy o" land& 1/haring possession2 is 5$T the same as 1sharing
occupation2&
8reaches o" covenants involving parting 'ith or sharing possession should #e capa#le
o" remedy&
o 8y repudiatory #reach Q Tenant terminates a "ixed term tenancy "or Landlord*s
#reach
I" there is a #reach #y either side that is su""iciently serious) then the
courts may allo' the other party to repudiate the contract&
;ussein v Mehlman )1&&2*
Facts: H 'as living in a house under a three year lease o'ned #y >& A"ter gross and
persistent #reaches #y their landlord o" his statutory o#ligations to repair and maintain
the property) they vacated their rented home a"ter 0@ months& H 'anted to #ring the
lease to an end #y accepting the repudiatory #reaches o" the landlord #y vacating and
returning the keys o" the property&
Decision: Held that acceptance o" a repudiatory #reach o" a lease #rings it to an end,
tenants entitled to end the tenancy and claim immediately damages "or repudiatory
#reach o" contract #y landlord&
Principle: In serious cases 'here the landlord has "ailed to repair) the tenant can
simply treat the lease as terminated on the grounds o" #reach o" a "undamental term&
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o 8y notice to !uit Q Landlord terminates a periodic tenancy #y telling Tenant
she*s stopping
/enerally, the len!th of notice re*uired is the same len!th as the
period of the tenancy&
Only the monthly periodic tenancy can be terminated by !ivin! notice&
o /urrender Q Tenant terminates a periodic tenancy #y telling immediate
Landlord she*s stopping
>ust #e consensual, #oth parties agree& It discharges the parties and
their sureties "rom all "uture o#ligations 8.T not "or past lia#ilities&
S.,2)1* o" the L$A 1&2,: /urrender must #e expressed Q have to #e
contained in the deed&
o >erger Q Tenant ac!uires the "reehold
:hen the tenant ac!uires the landlord*s "reehold interest) the tenancy
'ill come to an end&
Lease is a#sor#ed #y reversion and destroyed&
Assignment o" leases:
o An Assignment o" leases is a trans"er o" a proprietary interest "rom the original
tenant) the assignor) to a su#-tenant) the assignee) in relation to the trans"er o"
a #ene"it o" a restrictive covenant& The assignor usually assigns the residue o"
the lease to the assignee&
In an assignment) the tenant trans"ers her property right to an assignee&
Assignment is 5$T #uying
o Landlord and Tenants )4ovenants* Act 1&&,:
Re"ormed the la' so that the landlord 'ould #e una#le to sue the
original tenant "or a #reach a"ter assignment, tenant no longer lia#le "or
"uture legal issues&
Landlord may re!uire outgoing tenant to sign an 1AuthoriHed
6uarantee Agreement2 'here the outgoing tenant guarantees
the per"ormance o" his immediate assignee&
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o En"orcement #et'een original parties to the lease
:hen the lease or reversionary interest is passed onto a successor in
title) does the #ene"it and #urden o" the covenants in the lease pass to
that successorE
This is dependent on date that the lease was ori!inally created&
o A"ter 0
st
o" Oanuary 0JJ?: 6overned #y rules in the
Landlord and Tenant )4ovenants* Act 1&&,
o 8e"ore this date: 6overned #y rules in La/ of $roert#
Act 1&2,
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Assign"ents
:hen the original tenant ;T< assigns his lease to his assignee ;A<) 'ill the #urden o"
covenants entered into #y T pass to AE
L
T A
$re31&&2 Lease $ost31&&2 Lease
T continues to #e lia#le throughout the entire
duration o" the lease term on all the
covenants o" the lease due to rivit# of
contract& This is the existence o" a
contractual relationship #et'een the parties&
T 'ill automatically #e released "rom lia#ility
"or all tenant covenants upon assignment&
5$ privity o" contract 7 S., o" the Landlord
and Tenant )4ovenants* Act 1&&, a#olishes
post-assignment lia#ility&
There"ore) T or A 'ould #e lia#le 'hen applying re-0JJ? Lease and only A 'ill #e lia#le
'hen applying ost-0JJ? Lease&
H$:E=ER) T can still #e lia#le a"ter ost-0JJ? date i" there is an AuthoriHed 6uarantee
Agreement or an 1excluded assignment2 under S.11 o" the Landlord and Tenant
)4ovenants* Act 1&&,& -f 0 and T si!ned the A/A, then 0 )AN sue T and A for rent arrears,
breach of covenants, etc.
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Sub3letting
Transaction #et'een T and / is "rom L and T in the "irst place& T grants / a lease& L is the
head-lessor) T is the head-lessee F su#-lessor) and / is the su#-lessee&
L L
T T A
/
In a su#-letting) the tenant has a property right and gives a shorter) smaller property right
dependent on the property right the tenant has& The Landlord and Tenant ;Covenants< Act
0JJ@ does not a""ect su#-tenants in principle&
8asic rule Q Covenant in a lease is en"orcea#le #et'een landlord and tenant o" that lease&
Tension 'ith privity contract) terms in a contract can only #e en"orced in the terms o" the
contract& Covenants in the lease is en"orcea#le #et'een landlord and tenant o" that lease&
/u#letting 7 t'o leases& Head lease and su#-lease& /u#-lease is "rom the head lease) seen as
t'o separate leases& (or head lease) covenant is en"orcea#le #et'een L and T& T has to pay the
ground rent&
The covenant in the su#-lease is en"orcea#le #et'een T and /& 5o direct linkage #et'een L
and /, L and T) T and /&
Assignment 7 only one lease& In an assignment) T has passed it to A& $nly one lease applies&
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