Property Report 2017 B

Examiners’ reports 2017
LA3003 Property law – Zone B
Introduction
General comments
The following comments are intended to provide guidance to students sitting this
examination in the future and feedback to students who sat this particular
examination.
1. Answer the question. Do not simply write out all the law you can remember.
The principal lesson from the June 2017 examinations is that many students had
decided that they were just going to write out all of the law that they could
remember, but did not answer the question.
(a) If you do not answer the question, then you cannot score a good mark. You
will not score higher than a 2:2 (at the highest) if you simply ignore the
question and write out your notes on the subject.
(b) If you write about things that are not relevant to answering the question
then that will lower your marks further. For example, if the question is a
problem question about whether the parties have a lease or a licence, if you
include a lot of information about implied covenants in leases or the nature
of legal estates, you will lose marks for irrelevance.
(c) The skill that is being tested here is the skill of identifying the issues in the
problem then applying the law to the analysis of those issues. So, if you talk
about things that are not relevant to those issues, you will lose marks for
irrelevance.
2. Length is not a virtue. Many candidates in the examinations had clearly decided
that a ten-page essay would necessarily score higher marks than a five-page
essay. As a result, they wrote pages and pages, which included a lot of irrelevant
material, a lot of repetition and so forth. (There is no set length requirement for a
good answer because different people have different sized handwriting, different
people use different layouts, etc. The module guide gives you guidance as to the
way of writing a good answer.) If you write a very long answer, it is likely that you
will include a lot of irrelevant material. Many essays (and problem-answers)
contained a lot of waffle that was irrelevant to the question, including a summary of
their notes or the module guide for about 90 per cent of their answer; many
repeated the same information over-and-over; and many made the mistake in point
(1) above. It is much better to think in the examination room about the best answer
to the question, instead of treating the words ‘you can start writing now’ as a
starter’s pistol in a running race and simply sprinting to write down everything you
can remember. By the same token, people who only wrote a half of one page were
very unlikely to score more than 10 per cent.
3. Write simply. Many students saw the examination as a challenge to write in their
most complex English. If you are trying to explain a complex argument then it is
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sometimes better to keep it simple. If, for example, your first language is not English
then do not feel the need to try to write complex English. You lose credit if you mis-
express an idea or if your ideas are unclear. Consequently, in such a situation, it is
safer to write in short, clear sentences. Only you can be the judge of your level of
comfort in this regard or how you choose to write. If you are under-scoring in your
marks then you might consider adopting a different writing style for writing about
law. For example, the English judge Lord Denning wrote in very short, assertive
sentences. They often had fewer than 10 words in them. (You can find any of his
judgments through the online library on the VLE.) Copy his written style if you are
unsure. Write assertively. Be concise. You do not need to be Shakespeare or
Dickens to get a first-class mark. You need to be focused. You need to be clear.
4. Precision is a virtue. You must use the correct terminology. So, if the question
is whether or not there is a ‘contract’ then keep using the term ‘contract’ do not start
talking about agreement, or compact, or arrangement. That sort of imprecision is
fine for a layperson but not for a lawyer. If you are talking about a ‘licence’ then do
not start using other terms. If you are talking about proprietary estoppel then do not
talk about the claimant ‘always getting a proprietary right’ – if you think about it, the
remedy for proprietary estoppel might result in merely a personal right to an amount
of money (e.g. Jennings v Rice) and therefore it is not true that a claimant always
gets a proprietary remedy. So, be careful to choose the correct word. Similarly, do
not over-write using excitable or verbose language that muddies the point you are
trying to make.
5. Discuss cases so that you examine the concepts in detail. Most students
dealt with the case law as though each case could be summarised in a single
sentence. That is very superficial. For example, when discussing Q4 and the
lease/licence distinction, it is important to discuss the facts of e.g. Antoniades v
Villiers, the salient facts of that case (and how they resemble or differ from the
problem) and crucially the detailed ideas in the judgment about how the law should
be applied in this area. To score high marks it is essential that you penetrate the
detail of the concepts in the judgments – you should glean this information from
reading the textbook and also from reading the judgments in the leading cases via
the VLE. Almost no students demonstrated any familiarity with the detailed
concepts set out in the judgments; preferring instead to use superficial, one-word
summaries of the cases.
For example, the different Houses of Lords in Street v Mountford, and in
Antoniades/Vaughan (in relation to the lease–licence distinction) set out a number
of circumstances in which they would find exclusive possession: for example, the
difference between a hotel room where cleaning services are provided whenever
the landlord chooses (a mere licence) and a home where limited cleaning services
are provided for payment of an extra fee (thus not interfering with exclusive
possession and so constituting a lease). Using that sort of detail in Q4 would have
led to a better answer. No students did this.
It is no surprise that all of the essay questions in this course take an extreme
stance: that is because they are encouraging you to set out an equally forceful
argument either in support of that proposition or against it. A good essay will
present such an argument in the form of a thesis and not simply rehearse your
notes or the material discussed in the module guide. It is, however, vital that you
answer the question that you have been set: it is not enough simply to write out an
essay which you have prepared in your head without any reference to the question
you have been asked.
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Comments on specific questions

Question 1
‘The law on adverse possession has always been depicted as a scandalous
interference with the rights of legitimate property owners. As a result, the
changes effected in the Land Registration Act 2002 provided a timely reform
to the law. However, these alterations to the law on adverse possession have
robbed English land law of a vital tool for achieving the proper use of land
that otherwise is unused or abandoned.’
Discuss.
General remarks
The general remarks in the Introduction to this report apply to essays on this topic:
especially those under headings A1, A2, A3 and C. Candidates tended merely to
write out all of the law they could remember without any attempt to address the
question which they were asked to discuss.
Candidates were expected to consider whether the case law concepts were better
or worse than the statutory code under the 1996 Act. That should involve evaluation
of the strengths and weaknesses of each system. Instead, students merely wrote
out their notes. In many cases, those notes were written in an unstructured format,
which seemed to be a mere ‘stream of consciousness’ without any organisation or a
thesis.
Law cases, reports and other references the examiners would expect you to use
Land Registration Act 1925, s.75; Limitation Act 1980; Land Registration Act 2002,
Sch.6; Land Registration for the 21st Century – A conveyancing revolution Law Com
No 271; Pye v Graham (2002); Powell v Macfarlane (1979); Techbuild v
Chamberlain (1969); Hounslow v Minchinton (1997), Bucks CC v Moran (1990);
Wallis’s Clayton Bay Holiday Camp v Shell-Mex and BP Ltd (1975).
Common errors
Common errors included a failure to address the question that had been asked.
This question identifies the law on adverse possession as being ‘scandalous’ – that
is an extreme statement. The title contained an extreme statement of this sort to
encourage students to make a strong argument in support of such an extreme
statement or refuting that statement. No students considered the extreme language
that was used in the question.
A good answer to this question would…
have set out an argument as to the understanding of the law in this area and then
pursued it through the course of the essay.
Poor answers to this question…
simply scratched out a scattered account of some of the cases relating to adverse
possession without identifying the factual issues in the problem and then applying
the relevant law to them in a structured way. The poor answers to this question
simply wrote as many notes as possible without addressing the question.
Student extract
Adverse possession is a scandalous interference with the rights of the paper
owner. The law on adverse possession is set out in the Land Registration Act
2002. According to Powell v McFarlain [sic] to prove adverse possession the
burden of prove is on the squatter. The squatter must prove that he during his
stay at the premises he had factual possession and also had the intent to
possess.
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In Redhouse Farms v Catchpole it was held that the evidence necessary to
prove factual possession will usually vary according to the [nature of the]
land.
Comments on extract
Several essays did quote the word ‘scandalous’ in their opening paragraph but
there was no further mention of that concept. This is not enough to answer the
question: one single mention of the words in the essay title is not enough. The
whole essay must address the title. Afterwards, this essay simply noted many cases
relating to the law on adverse possession. Such an answer cannot score higher
than a low 2:2.
Question 2
Geoffrey was an elderly man who tended to be very forgetful. Geoffrey
acquired the freehold title to Blackacre, which consisted of a detached house
and two small fields – known as Red field and Blue field. Blackacre was
registered land. Blackacre was secured by a mortgage to Whale Bank.
Geoffrey granted a lease over Red field to Harriet. Harriet used Red field to
exercise the dogs she housed as part of her dog kennel business. The lease
was for ten years and was created by deed.
Geoffrey agreed to permit Laura to use Blue field for her horses. Laura
competed professionally in horse races across rural land. She wanted to be
able to cross Blue field so that she could pass from her own land to the main
bridleway. This agreement was put into writing and Laura pays £100 per
month for the right of access.
Geoffrey agreed in the pub one evening that he would grant to Peter a right to
purchase Blackacre for its market value if Geoffrey ever decided to sell it.
This agreement was evidenced by an exchange of text messages between the
two men on the following day.
Geoffrey has now been admitted to hospital after a nervous breakdown. His
brother, Tom, seeks your advice about the rights which Harriet, Laura and
Peter may have over Blackacre.
General remarks
write out all of the law they could remember without any attempt to address the
Law: Law of Property Act 1925; Law of Property (MP) Act 1989; Land Registration
Act 2002; Land Registration for the 21st Century – A conveyancing revolution Law
Com No 271; Chaudhary v Yavuz (2011); Chhokar v Chhokar (1984); Swift 1st v
Chief Land Registrar (2015); Mortgage Express v Lambert (2016).
Common errors
The principal errors were a failure to address all of the detailed facts of this problem
question. Many candidates preferred instead simply to write out all the law they
could remember.
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have split up the problem between the four people who dealt with Geoffrey and
would have identified each of their separate rights. It would then have considered
the problems with land registration. Most students were able to reproduce the
appropriate elements of the Land Registration Act 2002 – but that was because
they had their statute book in the exam room with them. Consequently, merely
copying the law out of a statute book will not attract high marks. What will attract
higher marks is applying that law to the facts of the problem.
(there were many very poor answers) were (a) unstructured, (b) simply wrote out all
of the law their authors could remember, and (c) did not address the issues in the
problem.
Student extract
The Land Registration Act 2002 builds on the 1925 reforms contained the
Law of Property Act 1925 and the Land Registration Act 1925. The LRA aims
to improve the land registration system by comprehensively reflecting the
interests in titles in the registry and by reducing the number of registrable title
for manageability of the system and improved ease of sale and other
passage of land. These objectives are to be met through the mirror the
curtain principle and the insurance principle.
Comments on extract
This opening of a problem question does not address the facts of the problem. A
good answer would begin by identifying the first issue in the problem then setting
out the law and then applying the law to the facts of the problem.
Question 3
‘The principal strength of the doctrine of proprietary estoppel is its flexibility.
The range of remedies which are available in a proprietary estoppel action
contrast with the limitations of constructive trusts. Constructive trusts are too
uncertain to be of use to litigants in land law disputes.’
Discuss.
General remarks
The general remarks in the Introduction to this document apply to essays on this
topic: especially those under headings A1, A2, A3 and C. Candidates tended
merely to write out all of the law they could remember without any attempt to
address the question which they were asked to discuss.
which seemed to be a mere ‘stream of consciousness’, without any organisation or
a thesis.
Re Basham, Gillett v Holt, Yaxley v Gotts, Lim v Ang, Crabb v Arun DC; Stack v
Dowden, Jones v Kernott, Thorner v Major, Cobbe v Yeoman’s Row.
Common errors
The principles of proprietary estoppel were identified in the module guide, the
textbook and the case law as falling into a clear structure: (1) the demonstration of
representation, reliance and detriment to make out the estoppel; and (2) the issue
as to the appropriate remedy (ranging from rights to the entire property through to a
purely financial remedy). Poor answers (and there were many) failed to use this
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structure or any structure. Many candidates failed to mention the issue of remedies
at all.
have set out a clear thesis as set out in section C of the Introduction and not simply
been a record of the candidate’s notes from the module guide. It would also have
begun with a search for (i) representation (or assurance), (ii) reliance on that
representation, and (iii) detriment by looking at the facts.
failed to address the question that was asked (candidates preferred instead simply
to write out all the law they could remember) and failed to identify a clear thesis as
set out in section C of the Introduction.
Student extract
Proprietary estoppel is a creature of equity based on the concept of
unconscionability.
Lord [illegible] the five probanda in Wilmot v Baker were considered onerous
thus their abandonment and the adoption of Oliver J in Taylor Fashions that
for a claimant to prove proprietary estoppel he had to establish that he had
been given an assurance that he has been relied on to detriment and that
given all the circumstances it would be unconscionable for the person giving
the assurance to retract same.
Comments on extract
The first paragraph is very short – only one sentence. That sentence makes an
assertion about the law (the concept of unconscionability) which is contested in the
case law – and no authority is given here. That is a bad start. This opening
sentence is also weak – it does not set out an argument.
The second paragraph shows some good knowledge of the law but it is very poorly
written. This is a good example of a situation in which the student would have been
better advised simply to write in short sentences: ‘The case of Wilmot v Barber
created a test based on five probanda. Those five requirements were difficult to
prove. [Explain why – they required proof of a mistake.] That approach was
displaced by an approach based on unconscionability. Oliver J in Taylor Fashions
set out this new approach [explain the new approach, then show why you think it is
better].
Question 4
Karen and John are an unmarried couple who are looking for their first home
together. They have found a flat advertised on the internet. Spyros is the
landlord. The advertisement for the flat read: ‘Flat available. Would suit young
couple. Cheap rent.’
Karen and John are eager to go into occupation of the flat as soon as
possible. They have been given a document which they are required to sign
by Spyros which contains the following terms:
‘1. This agreement shall not constitute a lease. The rights of the
occupants are as licensees only.
2. The occupants shall be required to vacate the premises every
Thursday morning between the hours of 10.00am and 11.00am so
that the property can be cleaned.
3. The landlord reserves the right to go into occupation of the
property at any time.’
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The premises consist of one bedroom, one bathroom and one large room with
a combined kitchen and living room. The bedroom contains one double bed
(i.e. large enough for two people to occupy at once). The sofa in the living
room can be opened out into a bed for two people.
When Karen asked Spyros about clause 3, he said: ‘Don’t worry about that. I
don’t intend to come and spend the night with you.’
Advise Karen and John as to the nature of their rights if they entered into this
agreement.
General remarks
The general remarks made in the Introduction to this report apply to this question, in
particular, the comments relating to problem questions.
This problem asks you to analyse the facts and decide whether there is a lease or a
licence here. In general terms, the candidates were very poor at applying the
detailed facts of the cases (e.g. Street v Mountford, Antoniades v Villiers and AG
Securities v Vaughan and the others identified in the module guide) to the facts of
the problem. The key skill in answering problem questions is: (i) to know the tests in
the decided cases; and (ii) to understand the salient facts in those cases, and then
to compare the salient facts of those cases with the facts of the problem so as to
advise the parties how their case would be decided by the courts. Candidates were
poor at discussing the facts of the problem in light of the facts of the decided cases.
Street v Mountford; AG Securities v Vaughan; Antoniades v Villiers; Aslan v
Murphy; Mikeover v Brady.
Common errors
Common errors included failing to address the precise facts of the problem. For
example, there is an obligation to vacate the premises at specific times. This
concept was discussed in cases such as Aslan v Murphy (in the module guide).
Most candidates failed to consider whether this meant exclusive possession was
negated, or whether it was still possible because the need to specify the times when
the property must be vacated presumed that otherwise there was exclusive
possession.
identify the salient facts of the decided cases and compare them to the facts of the
problem. That is a core legal skill. It would explore the detailed judgments in the
leading cases and use the debates in those cases to analyse the facts of this
problem.
simply wrote out all the law that the candidates could remember without applying it
to the facts of the problem. They used imprecise expressions like ‘exclusive
occupation’ when ‘exclusive possession’ was meant.
Student extract
This question is about the lease and licence distinction. Lease is a proprietary
right and comes under statutory protection and also binds future transferee of
the law. But a licence is just a personal right with limited remedy. It would be
in Karen and John’s interests to argue for a lease.
To meet the requirement of a lease, Lord Templeman in Street v Mountford
clearly stated that a lease required the tenant to have exclusive possession
for a term at a rent.
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As Lord Templeman reminded us, we should not look at the labelling in an
agreement but at the substance to determine if it is a lease or licence. Hence
clause 1 [on these facts] is not conclusive. For Karen and John to argue they
had exclusive possession when both are occupying the same premises, it is
necessary that they prove a joint tenancy with unity in possession, interest,
title and time. In Antoniades v Villiers, the couple signed two interdependent
agreement and like Karen and John intended to use the premises as a
matrimonial home. It was upheld as a lease in that case. So long as they are
jointly and severally liable for the rent payment and deposit. John and Karen
would be likely to satisfy that on these facts. Mikeover v Brady is of interest
here.
Comments on extract
A good problem answer follows the following pattern. First, it identifies the specific
issue in the problem that is being addressed. In any problem question there are
probably four or five main issues. The next three steps should be applied to one
issue at a time. Secondly, it sets out the applicable law for addressing that particular
issue. Thirdly, vitally, it applies that applicable law to the facts of the problem and
explains how the courts would resolve the issue set out in the problem. In doing this
you should discuss the relevant facts of the problem that would be important in
answering that aspect of the problem. Fourthly, it must come to a conclusion. As a
fifth element, a good answer might consider any journal literature or other academic
points (or dissenting judicial opinions) relevant to that issue which suggest that the
law is optimal or sub-optimal in the context of the problem.
The strength of this answer is the way in which the candidate identifies the key
issue, sets out the general legal test, before drilling down into the sub-issue of joint
tenancy, setting out the legal test and then applying it to the facts. The problem
here is that the candidate did not go into sufficient detail on the facts. The candidate
should have explained what about Clause 1 was problematic and why s/he
considered that it satisfied the test in Street v Mountford. Clause 1 labelled the
agreement as a licence – so, the candidate should have considered what on the
other facts of the problem would cast doubt on this being a licence, i.e. whether the
substance of the agreement was a lease, e.g. by virtue of the ability to occupy the
property by the landlord being a sham.
Question 5
George owns the freehold title to No.1 Thresher Cottages. Angie owns the
freehold title to No.2 Thresher Cottages. The two cottages are semi-detached:
that means that they share a roof and there is an internal wall between the
two cottages which runs from the foundations to the roof.
Both cottages were built in 1982. The land is registered land. There are
identical freehold covenants over both cottages which read as follows:
1. The freeholder shall maintain a hedge of conifers between the
gardens of the two cottages.
2. The freeholder shall refrain from causing any harm to any
neighbouring property or neighbour.
3. The freeholder shall ensure that no noxious substance is
allowed to pass into the sewerage and waste water system.
George bought his cottage in 2001 from the original owner, Steve. Angie
bought her cottage in 2012 from the original owner, Teri.
George refuses to pay for the maintenance of a hedge between the properties
and wishes to install a wooden fence instead. Angie prefers a high conifer
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hedge. Angie insists on a hedge so that she can sunbathe in the garden
without being seen.
George does not see the need to keep his house clean. He stores open
containers of pet food in his attic. As a consequence, he has a large number
of mice living in his roof space. Because the internal wall in the roof space
has not been properly maintained, the mice can escape into Angie’s property
without difficulty. Angie has a phobia about mice and claims to be suffering
from depression as a result of the number of mice which have appeared in
her home. Angie can prove that the mice originated in George’s house.
When Angie cooks, she empties cooking fat and other refuse down the sink.
Over the months, this has built into a large ball of congealed fat and other
substances which have blocked the sewer. The blockage is under George’s
cottage. Angie refuses to stop disposing of cooking fat in this way and she
refuses to pay for any remedial works on the shared sewer.
Advise Angie and George as to their rights.
General remarks
Law of Property Act 1925, ss.78 and 79; Smith & Snipes Hall Farm v River Douglas
Catchment Board (1949); Rogers v Hosegood (1900); Federated Homes v Mill
Lodge Properties (1980); Re Dolphin’s Conveyance (1970); Roake v Chadha
(1984); Tulk v Moxhay (1848); Rhone v Stephens.
Common errors
Common errors included failing to address the precise facts of the problem.
identify the salient facts of the decided cases and compare them to the facts of the
problem. That is a core legal skill. It would explore the detailed judgments in the
leading cases and use the debates in those cases to analyse the facts of this
problem.
simply wrote out all the law that the candidates could remember without applying it
to the facts of the problem.
Student extract
To determine whether the original parties can sue for breach of covenant, the
burden and benefit of each covenant must be passed.
Covenant 1 is a positive covenant that was breached by George. Can Angie
sue George for breach of covenant 1?
The doctrine of mutual benefit and burden can be used to pass the burden of
covenant 1. Where the covenantors receive the benefit, they cannot refuse to
take the burden. In Halsall v Birzell the benefit was the provision of roads,
sewers and protection from flooding and the burden was to pay the costs to
maintain these services. In the present scenario, the benefit of the hedge of
conifers would be for privacy purposes and the burden would be to pay the
cost to maintaining the hedge of conifers. But, the facts indicated that George
refused to pay for the maintenance of the hedge only because he wanted to
install a wood fence instead, not because he was refusing to take the burden.
However, the fact that Angie prefers the hedge and this is the covenant that
Steve created and George covenanted to do, he would therefore have to take
the burden of paying the maintenance costs of the hedge because it would
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serve the same benefit as the wooden fence, which is for privacy purposes.
Therefore, the burden of covenant 1 can pass.
Comments on extract
The candidate appears to have understood the law in general terms from the first
two paragraphs. However, the rest of the extract is problematic. (1) There are few
cases mentioned here. Only one case is used as the basis of this argument and,
while the student does a good job of explaining the facts, s/he does not explain
what the principle stemming from that case really is. (2) Similarly, the student does
not explain the rule governing the transmission of the benefit and separately the
burden of this covenant. There should have been mention of s.78, etc. in relation to
the benefit of the covenant. (3) As to the burden, there needed to be a discussion of
the nature of this covenant. The student concludes too quickly that this is a positive
covenant, without explaining why (i.e. because it requires the payment of money or
the expenditure of effort to maintain a hedge). The burden of a positive covenant
will not pass after Rhone v Stephens (despite the drafting of s.79 on its face) and
yet the student concludes that the burden of this positive covenant will pass, without
explaining why by reference to the case law or statute. Therefore, because the
student failed to set out all of the relevant law on the transmission of both benefit
and burden, s/he failed to answer the question correctly. (4) The failure to mention
enough law meant that this student was on course only for a third class mark. (5)
What the student does do well is to try to address the facts of the problem – but
even then the arguments are weakly expressed, e.g. the question of the fence. The
argument would be that the construction of a fence is equivalent to the maintenance
of a hedge and therefore that it achieves the underlying purpose of the covenant,
and therefore that the covenant has not been breached at all (whereas the student
states at the start of the third paragraph that there has been a breach). The real
problem here is that the student contradicts his/her own argument.
Question 6
Tariq owns the freehold title to a detached house, Greenacre, in a rural part of
Devon, England. Greenacre is registered land. The house is surrounded by
one acre of gardens and grassland. Tariq bought Greenacre from Dominic
in 2010. Greenacre had formerly been a part of the land known as Brook
Farm.
Dominic owns the freehold title to the farm, Brook Farm, which borders
Greenacre. Dominic inherited Brook Farm from his father. Brook Farm is
registered land.
Dominic keeps cattle on his land. Once a week since 2010, Dominic has led
his cows from Brook Farm across grassland at the edge of Greenacre to
another field which he also owns on the far side of the main road. Dominic
claims that thirty years previously his father used to walk his cattle along an
identified path across the land that is now Greenacre. He is unable to prove
this. Dominic also claims that ‘it is essential to be able to walk my cattle to the
other field because my main field cannot sustain grazing for my cattle all year
long’.
Tariq claims that the entirety of Greenacre is needed for his future business
plans, and therefore that he cannot have cows walking across it. He intends
to construct small buildings for tourists to occupy for holidays.
Tariq also wants to attach a large sign advertising this tourist accommodation
on the wall of a barn on Brook Farm. There had previously been a sign
attached to that barn before Tariq had acquired Greenacre. The sign had
advertised the farm shop which had formerly been operated by Dominic’s
father on Brook Farm. That sign was still attached to the barn when Tariq
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went into occupation of Greenacre. Dominic took that sign down six months
ago.
Tariq has planted a thick line of prickly holly bushes across the path that
Dominic uses to move his cattle to the alternative field and he has placed a
padlock on the gate leading across Greenacre from Brook Farm.
Advise Tariq and Dominic as to their rights.
General remarks
A good problem answer follows the following pattern. First, it identifies the specific
issue in the problem that is being addressed. In any problem question there are
probably four or five main issues. The next three steps should be applied to one
issue at a time. Secondly, it sets out the applicable law for addressing that particular
issue. Thirdly, vitally, it applies that applicable law to the facts of the problem and
explains how the courts would resolve the issue set out in the problem. In doing this
you should discuss the relevant facts of the problem that would be important in
answering that aspect of the problem. Fourthly, it must come to a conclusion.
Law of Property Act 1925, s.62; Hill v Tupper (1863); Re Ellenborough (1956);
Wheeldon v Burroughs (1879); Wong v Beaumont (1965); Wood v Waddington
(2015); Ward v Kirland (1967); Platt v Crouch (2003); Alford v Hannaford (2013);
Batchelor v Marlow (2001); Moncrief v Jamieson (2007); R Square Properties v
Nissan Motors (2014).
Common errors
The most common errors were stylistic: i.e. failing to address the facts of the
problem appropriately.
have considered whether there was a valid easement to walk cattle across the land
(or whether it was valid to plant holly and padlock the gate) and whether there was
an easement to erect a sign. A good answer would set out the Re Ellenborough
Park requirements for easements and then consider what sort of easement might
be available here.
failed to consider which category of easement might be available here. For
example, whether it was ‘necessary’ for the cattle to pass across this land under
Wong v Beaumont, etc. or whether the Moody v Steggles requirements for an
easement in relation to a signboard were satisfied.
Student extract
In order for Dominic to enforce the easement for cattle grazing it must be
capable of being an easement. Secondly, he must have acquired the
easement.
When looking at whether it is capable of being an easement, the right
claimed must meet the Re Ellenborough Park criteria. There must be a
dominant and servient tenement and it must be identified prior to claiming the
right (London Blenheim v Ladbroke) (there it was not identified) Here it is
clearly identified, there is a dominant and servient tenement. In Dominic’s
case, his land would be the dominant tenement and George’s would be the
servient tenement. It must also accommodate the dominant tenement. It must
touch and concern the land unlike in Hill v Tupper (there it didn’t serve the
dominant tenement as it did in Moody v Steggles where…
11
Comments on extract
The strength of this answer is in the way in which the candidate (1) set out the
elements for an easement one at a time before (2) explaining how each element
is/is not satisfied on the facts of the problem and then (3) moves on to the next
issue. This candidate is very focused on answering the problem question. That is
very good. Instead of writing long descriptions of the law like a textbook (which
simply repeats the module guide), the law is only set out here so that it can be used
to analyse the issues in the problem.
The principal weakness is the way in which the candidate wrote overly long
sentences. The student’s grammar is very poor in that s/he wrote sentences which
did not end, but rather ran into the next idea. It would have been much better to
have written short sentences of about ten words each: ‘The issue is whether this is
an easement. To be an easement, it must satisfy the four Re Ellenborough Park
criteria. The first requirement is that there must be a dominant and a servient
tenement. On these facts there is a dominant tenement because…’
Question 7
Joanne took out a mortgage from Frank so that she could acquire the
freehold title to business premises in London. Joanne operated a coffee shop
business from those premises. The land is registered land.
Frank inserted the following terms into the mortgage contract:
‘(a) Joanne shall be obliged to acquire all of her coffee supplies
from Frank at the prevailing market price for coffee in London.
(b) Joanne shall be obliged to pay the monthly interest repayment
amount for twenty years after the end of the mortgage term.
(c) Joanne shall be obliged to negotiate with Frank for the
purchase of cake ingredients for any cakes which she manufactures
for sale on the premises. Joanne shall have the right to buy her
cake ingredients elsewhere if Frank’s price is too high.’
Joanne and Frank signed the mortgage contract in 2015. Frank acquired the
rights of a mortgagee over the premises.
Subsequently, Joanne’s business has not been a success. To remain solvent,
Joanne needs to acquire her coffee and cake ingredients at a lower price than
Frank is charging her. Joanne has not paid her mortgage payments for three
months. At present, she feels she may not be able to meet her repayment
obligations in the foreseeable future. Frank has told Joanne that he will not
terminate the mortgage contract until the value of commercial property
increases.
Advise Joanne.
General remarks
The general remarks in the Introduction to this report apply to problem answers on
this topic. Candidates tended merely to write out all the law they could remember
without any attempt to address the question that they were asked to discuss. There
was little analysis of the facts of the problem.
Samuel v Jarrah Timber (1904), Reeve v Lisle (1902), Kreglinger v New Patagonia
Meat (1914), Fairclough v Swan Brewery (1912); Four Maids v Dudley Marshall
(1957), s.101 et seq. of LPA 1925, Palk v Mortgage Services Funding (1993);
Western Bank v Schindler (1977); Quennell v Maltby (1979).
12
Common errors
The most common error was simply not addressing the facts of the problem. It is
important to think of yourself as, for example, legal counsel advising the parties on
their rights. It is not enough in that situation just to repeat your notes about the law
because the client also needs to know how that law applies to their circumstances.
have addressed the key factors in the question: whether the rights of mortgagees
are ‘too extensive’, whether there is a clog or fetter on the equity of redemption by
reserving rights to the mortgagee about the purchase of coffee and ingredients,
whether the situation here is oppressive (as discussed in Palk). Almost no
candidates actually discussed how the law that they wrote out correctly would have
applied to the facts of the question, and consequently their marks were poor. This
raises a related point: it is not enough simply to know who ‘won’ in the case. It is
important to know three things: what was the principle that the decided case
established; what were the salient facts of that decided case that influenced the
judge to decide one way or the other; and how would that principle and those
salient facts compare with the problem you have been asked? On these facts, for
example, there is a similarity to the Kreglinger v New Patagonia Meat decision in
that the sale of coffee could be said to be unrelated to the mortgage, to have no
effect on the mortgagor recovering their property and to have been conducted at
market value; whereas other decided cases like Jones v Morgan land would still
have been encumbered even after the mortgage debt was paid off. So, you must
compare the facts of the problem to the facts of the decided cases and not simply
write out your notes about this area of law.
failed to address the precise terms of the question.
Student extract
A mortgage is the conveyance of an interest in land as security for the
payment of a debt or a discharge of some other obligation. The mortgagor is
referred to as the borrower or the individual who takes out the loan and the
mortgagee is the lend[er], which is the financial institution lending the money
to the mortgagor. The mortgagor’s interest in land is based on the equity of
redemption, which is the value of the land after the debt attached to it is paid.
The key feature is for the mortgagor to redeem the debt in order to reclaim
the interest in land. Upon the operation of the enforcement of terms in the
mortgage agreement, the rights of the mortgagor as well as the rights of the
mortgagee must be recognised.
The mortgagor has an equitable right to redeem and this right to redeem
must not be postponed in a manner that is illusory, and there must be no
conditions which restrict this equitable right to redeem. Any term or provision
in the mortgage agreement which restricts the right to redeem is termed as a
‘clog’, which was evident in the case of Biggs. There will not be an illustration
on the rights of the mortgagor and how the law on mortgages simply
oppresses these rights.
Under the common law, the mortgagor has six months to complete payments
of the mortgage in order to be granted the right to redeem. If the six-month
period is determined and the mortgagor fails to make the payment before the
end of the six-month period, the mortgagor can lose the property. …
Furthermore the mortgagor can postpone the right to redeem…
13
Additionally, a mortgagor can grant the mortgagee the benefit of doing
something on the property in addition to the payment of the loan and its
interest. …
Mortgagers also have the right to possess, where they are entitled to receive
any rent or profit that derives from the use of the property, where they can
sue for trespassing on the land/property and they have the right to create
valid leases…
Restraint of trade, where the mortgagor is restrained from pursuing his
trade…
Even though mortgagees have their own rights that become exercisable upon
the mortgagor failing to fulfil his obligation…
Comments on extract
(1) This script was very light on legal references: there were no statutes referred to
and very few cases. (2) When cases were mentioned, they were mentioned only in
passing with no reference to the legal detail. (3) The features of a good answer
were set out above: that should have involved both a discussion of the law on
mortgages and also an analysis of how those case law principles would have
applied to the facts. (4) Importantly, this answer also failed to consider whether
there is anything about this commercial arrangement that is like the cases
discussed in the textbook and module guide (like Kreglinger) or which can be
distinguished from that case and other highlighted cases in your reading like Reeve
v Lisle and Jones v Morgan. (5) This student is merely writing out all the law s/he
can remember on mortgages but without going into detail and without citing specific
law. (6) This script is well written – in the sense that its use of language suggests
someone whose use of English is very good and who can e.g. write quite long,
coherent sentences. Nevertheless, that does not divert the examiners’ attention:
this script could not score more than a mid-range 2:2 because of the five preceding
defects. A complete lack of discussing legal concepts in detail (and omission of all
statue) mean that it was on the borderline between a third-class and a lower
second-class.
Question 8
‘The concepts of joint tenancy and tenancy in common are convoluted and
obscure. By contrast, the Trusts of Land and Appointment of Trustees Act
1996 has introduced important new ways of protecting the rights of
beneficiaries to land which reach beyond the limits of the case law.’
Discuss.
General remarks
write out all the law they could remember without any attempt to address the
which seemed to be a mere ‘stream of consciousness’, without any organisation or
a thesis.
Trusts of Land and Appointment of Trustees Act 1996, ss.2, 14 and 15; Jones v
Kernott; Re Citro; Re Holliday.
14
Common errors
Common errors included a failure to identify an argument at the outset and to
pursue that argument throughout the essay. Instead, most students simply wrote
out their notes on the difference between joint tenancy and tenants in common, the
process of severance and the rights created under the 1996 Act.
would exhibit the good features of an essay set out in the Introduction to this report.
failed to address the question asked and failed to be precise in their discussions of
the legal concepts. They also failed to explore the issues discussed in the case law
in detail.
Student extract
The law of co-ownership is complex. The Trusts of Land Act 1996 organised
the law dealing with trusts on land. The Act was to give beneficiaries the right
to live in the house held on trust. The purpose was to give them rights.
The concept of joint tenancy arises in four circumstances: (i) unity of time, (ii)
unity of title, (iii) unity of possession, (iv) unity of the same interest in the
property. The claimant must show that he have all four of these requirements.
The joint tenants have right of survivorship. This means that the last living
partner owns the whole property. Each partner has no separate right but they
have rights together under joint tenancy. Tenancy in common is where the
partners have separate rights.
Comments on extract
This opening to the essay does not address the question which has been asked.
This essay does not establish a thesis (or argument) at the outset. It is important
that the essay should do this. Instead, the candidate simply wrote out all of the
information s/he could remember – perfectly accurately – in relation to the law in
this area. The mark could not exceed a 2:2 as a result.
15

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LA3003 Property law – Zone B

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