All Property Law Reports 2009 2017

Examiner’s report 2009
2660003 Land law Zone A
Introduction
Overall, the general standard of candidates’ scripts was broadly similar
to those produced by candidates who have taken the examination in
recent years. Once again, the question paper reflected the range and
variety of topics contained in the syllabus and covered in the subject
guide. It is worth remembering that the guide is not merely a valuable
learning tool, it also offers a useful resource to help you map the topics
and issues upon which you may be examined. It therefore repays
careful attention when you are revising and preparing for the
examination. In particular, we recommend that you consider the
helpful advice, and practise the tips on examination technique, it
contains (subject guide, Chapter 1).
General remarks
The quality of legal information in many scripts was sound, suggesting
that candidates had learnt the legal principles and detailed case law
with commendable care. However, many candidates did not maximise
the potential of the material that they had memorised, producing
answers in which they did little more than write down what they knew.
The better scripts contained relevant and analytical answers. These rely
upon important skills, ones that candidates should develop and
practise. Of course, success in law exams depends to a considerable
extent upon having a thorough and detailed grasp of the legal
knowledge derived from studying the topics. But, as previous
Examiners’ reports have repeatedly highlighted, the examination is not
simply a memory test. A key aim is to test your understanding of what
you have learnt. This means that Examiners value work that shows an
ability to discriminate, by selecting only that legal information which is
relevant, and then applying it explicitly to the specific facts and issues
raised in the problem question. You should also take care not to write
out unnecessary case narratives and statutory provisions in full.
Similarly, if you elect to tackle an essay question it is crucial you take
great care to address the precise terms of the question. Too often the
answers ignored the language and requirements of the questions
(especially in questions 7 and 8) and resorted to unrelated
regurgitation. This is poor technique and limits the marks that will be
awarded.
From this year’s performance there are two further general points that
are worth emphasising. First, candidates should manage the time
available so as to ensure that they answer the requisite four questions.
1
A significant number of scripts contained no more than three full

answers. This had a serious impact upon the overall mark awarded for
the paper, and in some cases it most probably made the difference
between passing and failing the examination. Second, it helps if you
make your answers as neat and tidy as possible.
Specific comments on questions

Question 1
Walford District Council owns the registered title to a vacant plot of land
adjacent to the southern and western boundaries of the garden belonging to
Phil’s cottage. In the 1980s the Council granted Phil a licence to use the
vacant plot because it lacked money to develop the land. Phil used the plot
to graze his goats. The Council were unaware that Terry, Phil’s predecessor
as registered owner of the cottage, had demolished a fence on the southern
boundary between the Council’s plot and the garden, and replaced it with a
hedge that encroached on to the Council’s land by several meters.
When Phil’s licence expired in 1988 the Council did nothing with the land.
Rather than allow the land to lie empty, Phil continued to use it to keep
goats. He repaired the fence on the western boundary to stop the goats from
escaping on to the busy main road. In 1990 he bought a horse and built a
stable on the land. A year later he installed electricity, a water supply, a
security camera and erected a ‘Keep Out’ sign. Over the years Phil told his
friends that he appreciated that he might not be able to use the land
indefinitely.
Earlier this year the Council secured the funding it needed to develop the
land. It therefore wrote to Phil asking him to leave the land, and insisting he
reinstate the fence at the correct point on the southern boundary.
Advise Phil who does not wish to vacate the plot or reinstate the boundary
fence.
Briefly state how Phil’s legal position would be different if it could be
governed by the principles of unregistered title.
This question on adverse possession (see the subject guide, Chapter
11) was a particularly popular choice. Generally speaking it was well
done, although there were some issues that candidates either
overlooked or handled less well than others. One such issue is
establishing when time starts to run against the Council and in Phil’s
favour. This, in turn, may affect whether Phil’s claim falls within the
scope of Schedule 6 of the LRA 2002 or may be considered by
reference to the predecessor legislative provisions contained in the
Land Registration Act 1925 (subject guide, 11.2 and 11.3). In matters
such as these, it is worth remembering that if the facts allow room to
consider both possibilities legitimately, then it is wise do just that.
Candidates were more at ease when it came to exploring the case law
that might be used (such as Pye v Graham, and Moran) to support
Phil’s claim to be in factual possession of the land with the requisite
intention to possess. The better answers managed to deal with a larger
range of issues here, and were more adept at showing how the law
might or might not assist Phil’s claim. For instance, in the better
answers candidates explored details such as the significance of the
Council’s financial inability to develop the land, and the effect of Phil’s
admission to his friends that he might not be able to stay there
indefinitely. One of the other issues worth considering is in the context
2
of Schedule 6 of the 2002 Act: what, if any, legal significance is there

in the changes Terry and Phil have made to the boundary fence
(subject guide, 11.3)?
Question 2
In 2000 Kevin, a mechanic, and, his partner, Sally, purchase a garage, Fast Fit,
for £500,000. Kevin and Sally live in a flat above Fast Fit’s workshop. The
property is registered in Kevin and Sally’s joint names. Between them they
contribute a deposit of £50,000, Kevin and Sally borrows the balance of the
purchase price from the Weatherfield Bank as a twenty-year loan secured by
way of legal mortgage on the property.
This year Fast Fit is losing business. As a consequence Kevin and Sally start to
default in their mortgage repayments. Dev, a local businessman, tells them
that he has approached The Weatherfield Bank to discuss the possibility of
getting a loan to buy and demolish Fast Fit and turn it into a car park for his
supermarket.
Advise Kevin, who wants to know:
a) whether The Weatherfield Bank can repossess Fast Fit, given that Sally
has just been offered a job; and
b) if the Weatherfield Bank can be compelled to postpone any sale of the
property for a few months because Kevin and Sally have read a local
estate agent’s forecast that the value of business property in
Weatherfield is set to rise.
c) if The Weatherfield Bank can be made to sell Fast Fit at auction, and as a
going concern, rather than make a private sale to Dev;
d) how the proceeds of any sale will be applied.
This problem question concerning the mortgagee’s rights to possession
and sale (subject guide, 10.3) was quite popular. The better answers
wisely followed the structure suggested by the question, where the
advice to Kevin is framed by responding to the contents of each
lettered paragraph in turn. This appeared to help candidates to ensure
that the focus of what they wrote was trained upon the specific matters
raised, thereby maximising the extent to which their answers were
both relevant and engaged in applying the material to the specific
facts. That said, too many answers insisted on offering an irrelevant
(and sometimes) lengthy introduction about the types of mortgage and
the different methods by which they may be created. It followed that
many answers gave insufficient time and attention to explore fully the
significant range of points about how Kevin and Sally might benefit
from the operation of provisions such as sections 36 of the
Administration of Justice Act 1970 and 91 of the Law of Property Act
1925. Otherwise, the better answers recognised that there is normally
limited legal control of the mortgagees’ preferred method and timing
for the sale; and gave appropriately brief attention to dealing with the
way section 105 of the 1925 Act determines how the proceeds of sale
will be applied.
3
Question 3
In 2006 four bankers, Andrew, Belinda, Cindy and Davina, purchased
Seaview, for them to use as a weekend cottage. They made equal
contributions to the purchase price, and title to Seaview was conveyed to all
four of them.
In 2007 Andrew decided to emigrate to Australia. He therefore sold his
interest in Seaview to Edna. Belinda disliked Edna. She therefore wrote to
Cindy and Davina to tell them that she was urgently looking for somebody to
buy her share. Belinda subsequently changed her mind about selling when
she realised she would be able to use Seaview when Edna was not there.
In 2008 Cindy ran into financial difficulty and offered to sell her interest to
Davina. They discussed the possibility over several months but before they
could agree terms Cindy was killed in a boating accident. By her Will, Cindy
left all her property to her brother, Frank.
Belinda now wants Seaview to be sold, but Davina prefers to retain the
cottage.
Discuss.
This was quite a popular question, which attracted answers of uneven
quality. As the better answers showed, moving through the events
chronologically gave the answer an effective and reliable structure.
Having established the co-ownership status of the legal and beneficial
estate when Seaview was first conveyed to the four of them, advice to
Belinda should track through the subsequent events to examine the
possible ways in which there may (or may not have) been severance of
the beneficial joint tenancy (subject guide, 5.3) either by statutory
notice (under section 36 LPA 1925) or by one or other of the methods
outlined in Williams v Hensman. This will help to identify which of the
original equitable co-owners may claim a share of the proceeds if there
is a sale of Seaview in 2009. Surprisingly, a number of candidates
made a costly mistake early on by asserting that originally the four
must have been beneficial tenants in common, This removed the need
to go on to examine how far the dealings between the equitable co-
owners from 2007 to 2009 may have had the potential to effect
severance of the equitable joint tenancy. Another commonly
overlooked part of the problem concerned the TOLATA trust of land,
and in particular a consideration of the factors which the court may
consider in exercising its jurisdiction under sections 14 and 15 of the
1996 Act to resolve the disagreement between Belinda and Davina
about selling Seaview (subject guide, 5.5).
Question 4
Rita owns a property which comprises a ground floor shop and a first floor,
one-bedroom, flat. The flat and shop have separate entrances. In 2007, Rita
agrees to grant Audrey a lease of the shop for three years at an annual rent
of £8,000, the rent to be paid in monthly instalments. The agreement also
provides that either party may terminate the lease by giving six months
notice. The lease has never been executed; but Rita has moved in and started
paying rent each month.
Last year Rita agrees that her friend’s son, David, a trainee hairdresser, and
his girlfriend, Tina, can live in the first-floor flat. Rita draws up a ‘licence’
agreement and insists that David and Tina sign separate copies. The
agreements provide that they will each pay £300 per week as an ‘occupation
fee’; and that they will be able to live in the flat for three years ‘or until
David completes his training’. The agreement also states that David and Tina
4
must vacate the flat so that it can be cleaned every Tuesday between 12
noon and 2pm. David and Tina have always preferred to do all their own
cleaning.
Advise Rita about: (a) how much notice she needs to give Audrey to leave the
shop; (b) the legal nature of the agreement she has with David and Tina.
This question invites a consideration of, among other points, equitable
leases and the lease/licence distinction. Usually part (b) was handled
with a greater level of competence than part (a). The single most
serious error in answers to part (a) can be attributed to a failure to
read and assimilate the facts with care. Candidates assumed that Rita
and Audrey had created a formal lease when the facts clearly state they
had only agreed to the grant of a lease. As a consequence, the vast
majority of answers overlooked the possibility that an equitable Walsh
v Lonsdale type lease (subject guide, 6.2.2) might exist and help
determine the duration of notice Rita needs to give to Audrey. (To
their credit candidates were fortunately not misled by the
typographical error in line 6, and invariably correctly recognised that it
must have been Audrey (rather than Rita) who had moved in.)
In part (b) most candidates recognised that the central issue is to
determine if David and Tina can claim to have a lease (as opposed to a
licence). On the facts, this depends upon exploring if (i) their
agreement gives them exclusion possession of Rita’s flat; and (ii) the
maximum duration of their term can be said to satisfy the test of
certainty as re-stated in the House of Lord’s decision in Prudential
(subject guide, 6.1.3). As to exclusive possession, on the whole, the
answers would have be improved had candidates made greater use of
the specific terms of the written agreement, and drawn far more
extensively on the wealth of case law about establishing whether the
couple, as multi-occupiers, have the four unities to establish a joint
tenancy.
Question 5
Damien was the registered owner and occupier of Bridge House, which was
connected to a studio in which he made pottery. The studio was accessible
through an internal door in Bridge House and also by an external door which
opened directly on to a small lane at the rear of the property. Damien
regularly used the external door as a short-cut to reach the local train
station.
In 2003 Damien granted a lease of the studio to an artist, Jennifer, for a
period of five years. In 2004 Damien told Jennifer that she was welcome to
paint in the garden and to park her motorcycle in the drive of Bridge House
whenever she wished. Jennifer did not object to Damien continuing to use
the studio’s rear entrance as a short-cut whenever he liked. The lease of the
studio was renewed for a further five years in 2008.
Damien has now sold the freehold of the house and studio to Eric. Eric has
told Jennifer he wants her to stop using the driveway and garden. Jennifer
has responded by telling Eric that he must not make use of the rear entrance
to the studio.
Advise Eric.
This challenging and full question proved a popular choice, although
the quality of the answers was mixed. It raises a range of issues
concerning easements, requiring a detailed consideration of three
broad questions: (a) which of the three rights being claimed are
5
capable of being easements; (b) whether any of them have come into
existence by one or more of the recognised methods of implied creation
(subject guide, 8.2); and (c) issues of priority/enforceability of the
easements against third parties (subject guide, 8.4 and 8.5). Too many
answers failed to deal adequately (or at all) with the legal points
presented by the facts in the problem that relate to (b) or (c). Instead,
many answers went no further than examining if any of the three
rights claimed could be said to satisfy the characteristics outlined in Re
Ellenborough (subject guide, 8.1.1). The better answers were able to
identify accurately which claims were by implied grant (Jennifer) and
that Damien had only two possible methods (necessity and common
intention) to support his potential to implied reservation.
Question 6
In 1995 Brian, the owner of Home Farm, sold a field to Jill, for her to start a
business keeping chickens. As part of the transaction Jill covenanted “for the
benefit of the land retained by Brian”:
a) to construct only one building on the field; and
b) to keep the fence between the field and Home Farm in good repair.
In return, Brian covenanted that he would maintain the open drain situated
on his side of the boundary between the field and Home Farm. Jill registered
a notice against Brian’s title, but Brian failed to take any such steps
regarding the covenants entered into by Jill.
In 2000 Brian sold Home Farm to Debbie; and in 2002 Jill sold her field to
Tom, a pig farmer, informing him of all the covenants. Debbie is rather
annoyed that Tom has not replaced the fence, which blew down last winter.
She is also dismayed by news that Tom plans to build two piggeries on the
field. For his part, Tom has noticed that because the open drain is blocked
waste water is overflowing into his field.
Advise Debbie whether she is entitled to enforce the covenants against Tom
and whether she can refuse Tom’s request to clear the drain which she no
longer needs to make use of to drain Home Farm.
This question on freehold covenants (subject guide, Chapter 9) was not
widely chosen, nor was it tackled particularly well by those who chose
it. Most candidates who attempted this question failed to deal
adequately with both the benefit and the burden, with some answers
focusing only on one or the other. Perhaps the main reason for this is
that candidates forgot the basic starting point: that if Debbie (as
successor in title to the land belonging to the covenantee) is to be able
to enforce covenants (a) and (b) against Tom (as successor in title to
the covenantor), she must establish both that she acquired the benefit
and also that Tom is subject the burden. In turn, this allows candidates
to explore: if the covenants are positive or negative in substance
(rather than language); the different methods that may apply in equity
(especially statutory annexation, Federated Homes; and Crest Nicholson:
subject guide, 9.2.2) by which the benefit may have passed to Debbie;
and equity’s pre-conditions for allowing the burden to be enforced
against somebody other than the person who accepted the burden. In
this regard the better answers went on to consider detailed points such
as: the significance of Brian’s failure to register the covenants and the
fact that Jill informed Tom about them; and the possible application of
the mutual benefit and burden principle (on which see the House of
Lords’ discussion in Rhone v Stephens) to the drain.
6
Question 7
Critically assess the contribution that the equitable doctrine of proprietary
estoppel makes to modern land law.
Perhaps unsurprisingly relatively few candidates chose to tackle this
particularly demanding essay title. Unlike the rest of the examination
paper, the subject matter of this question is far less narrowly focused.
Answers might legitimately range across the whole of the syllabus. In
particular, they might offer a critical assessment of the contribution of
estoppel: in the context of formalities for contracts relating to land; to
the creation of licences; and for those seeking to establish a beneficial
interest in land.
Question 8
“The Land Registration Act 2002 marks a significant development. In
particular it strikes an appropriate balance between the needs of the
purchaser and those who are entitled to other interests in the land being
purchased.”
How far do you agree with this assessment of the provisions in the Land
Registration Act 2002 other than those relating to adverse possession?
Clearly this demanding question is principally about assessing the
impact of the principles introduced by the landmark provisions found
in the Land Registration Act 2002 (subject guide, Chapter 3). There is
scope to refer both to the ways in which that Act developed the law
under the LRA 1925, particularly in allowing fewer non-ownership
rights to take effect without some form of protection on the register. It
seemed as if most candidates who answered this question were content
to simply repeat what they had committed to memory about registered
title in general, without attempting to take the terms of (or
assumptions in) the quotation apart. The better answers at least
managed to avoid confusing the fundamental distinction between
registered and unregistered land principles. It is important when
choosing a question of this kind to think about and engage with its
terms.
7
2660003 Land law Zone B
Introduction
Overall, the general standard of candidates’ script was broadly similar
to those produced by candidates who have taken the examination in
recent years. Once again, the question paper reflected the range and
variety of topics contained in the syllabus and covered in the subject
guide. It is worth remembering that the guide is not merely a valuable
learning tool, it also offers a useful resource to help you map the topics
and issues upon which you may be examined. It therefore repays
careful attention when you are revising and preparing for the
examination. In particular, we recommend that you consider the
helpful advice, and practise the tips on examination technique, it
contains (subject guide, Chapter 1).
General remarks
The quality of legal information in many scripts was sound, suggesting
that candidates had learnt the legal principles and detailed case law
with commendable care. However, many candidates did not maximise
the potential of the material that they had memorised, producing
answers in which they did little more than write down what they knew.
The better scripts contained relevant and analytical answers. These rely
upon important skills, ones that candidates should develop and
practise. Of course, success in law exams depends to a considerable
extent upon having a thorough and detailed grasp of the legal
knowledge derived from studying the topics. But, as previous
Examiners’ reports have repeatedly highlighted, the examination is not
simply a memory test. A key aim is to test your understanding of what
you have learnt. This means that Examiners value work that shows an
ability to discriminate, by selecting only that legal information which is
relevant, and then applying it explicitly to the specific facts and issues
raised in the problem question. You should also take care not to write
out unnecessary case narratives and statutory provisions in full.
Similarly, if you elect to tackle an essay question it is crucial you take
great care to address the precise terms of the question. Too often the
answers ignored the language and requirements of the questions
(especially in questions 5 and 6) and resorted to unrelated
regurgitation. This is poor technique and limits the marks that will be
awarded.
From this year’s performance there are two further general points that
are worth emphasising. First, candidates should manage the time
available so as to ensure that they answer the requisite four questions.
1
A significant number of scripts contained no more than three full

answers. This had a serious impact upon the overall mark awarded for
the paper, and in some cases it most probably made the difference
between passing and failing the examination. Second, it helps if you
make your answers as neat and tidy as possible.

Question 1
Ruth, a plumber, bought her workshop in the late 1980s. She soon noticed
that the neighbouring property, a warehouse, was disused and dilapidated.
Matt had recently acquired the registered title to the warehouse so that he
could convert it into a block of luxury apartments.
In 1990 Ruth decided to park her van on the forecourt of the warehouse. By
1991 she had begun using the warehouse to store her tools and plumbing
materials. She repaired the leaking roof to protect them from damage. In
later years she installed a generator to supply electricity and, after intruders
broke in, she secured the warehouse by fitting padlocks and a burglar alarm.
Matt occasionally drove past the warehouse and once or twice waved to
Ruth when he saw her driving away from the forecourt.
Last month Matt sold the warehouse to Housemate, a builder’s merchant.
Housemate has written to Ruth insisting she vacate the warehouse
immediately.
Advise Ruth.
Candidates should remember to take care when deciding what the
questions are about. Although most candidates who attempted this
popular question correctly identified it as being exclusively about
adverse possession (see subject guide, Chapter 11), a not insignificant
number misdiagnosed it as requiring a discussion of easements –
perhaps because of the reference to Ruth parking her car on the
forecourt. The question invites a forensic consideration of the facts to
determine how Ruth may or may not claim her use of the warehouse
fulfils the legal requirements of factual possession and intention to
possess (drawing on decisions such as Pye and Moran). Typically, this
aspect of the question was reasonably well handled. What seems to
have posed greater challenges was determining when the limitation
period might have begun (though dispossession or discontinuation)
and the effect of this uncertainty on Ruth’s claim. This sometimes
resulted in an overemphasis on the details of the new legislative
scheme contained in the LRA 2002. Moreover, some candidates did not
deal with the facts on the basis that Matt had disposed of the registered
title in the warehouse to Housemate. In a number of scripts there was
also a wholly unjustified and irrelevant excursion into the case law
dealing with the human rights dimension of the topic.
2
Question 2
In 2007 Ian purchased a café, Ian’s Plaice. Ian’s Plaice has a large car park.
Although Ian paid the deposit from his savings, he obtained the balance of
the purchase price by entering into a mortgage with one of his suppliers,
Prize Pies plc. Ian had spent months unsuccessfully trying to find a bank that
would grant him a mortgage. Ian’s mortgage agreement with Prize Pies plc
contains the following terms:
a) the monthly interest rate will be calculated by using the highest
prevailing interest rate in the world;
b) the borrower must buy all his pies from Prize Pies plc, at a price to be
determined by reference to the list price that Prize Pies plc charges all its
other customers;
c) the borrower cannot redeem the mortgage until the final year of the
twenty year term;
d) the lender will have a right of pre-emption to purchase the car park
belonging to Ian’s Plaice, which pre-emption it may exercise for a period
of two years after redemption of its mortgage.
Advise Ian about the enforceability of the mortgage terms.
This relatively straightforward problem question produced some
pleasing answers which examined several key aspects of the way the
law protects the mortgagor’s position (subject guide, 10.2). The better
answers dealt with the terms of each of the numbered paragraphs in
turn. These showed that many candidates had an awareness of how
questions can and do prompt the most sensible (and obvious) way to
organise and order the answer. However, even where some candidates
adopted this approach they felt the need to open their answer by giving
a fairly lengthy introduction, containing irrelevant general material
(such as a description of the forms mortgages may take, and a
historical sketch of the development of the equity of redemption). The
better answers focused exclusively on the case law (or statutory
provisions) Ian might use in arguing that clauses (a) to (d) may or may
not be enforceable against the mortgagee, Prize Pies plc. Here the
Examiners were looking to give credit to those candidates who
considered as many potential causes of action as might conceivably
apply, even if some were raised only to dismiss their availability on the
facts.
Question 3
In 2006 four bankers, Andrew, Belinda, Cindy and Davina purchased Seaview,
for them to use as a weekend cottage. They made equal contributions to the
purchase price, and title to Seaview was conveyed to all four of them.
In 2007 Andrew decided to emigrate to Australia. He therefore sold his
interest in Seaview to Edna. Belinda disliked Edna. She therefore wrote to
Cindy and Davina to tell them that she was urgently looking for somebody to
buy her share. Belinda subsequently changed her mind about selling when
she realised she would be able to use Seaview when Edna was not there.
In 2008 Cindy ran into financial difficulty and offered to sell her interest to
Davina. They discussed the possibility over several months but before they
could agree terms Cindy was killed in a boating accident. By her will, Cindy
left all her property to her brother, Frank.
Belinda now wants Seaview to be sold, but Davina prefers to retain the
cottage.
Advise Belinda. If Seaview is sold, who would be entitled to the proceeds of
sale?
3
This was quite a popular question, which attracted answers of uneven

quality. As the better answers showed, moving through the events
chronologically gives the answer an effective and reliable structure.
Having established the co-ownership status of the legal and beneficial
estate when Seaview was first conveyed to the four of them, advice to
Belinda should track through the subsequent events to examine the
possible ways in which there may (or may not) have been severance of
the beneficial joint tenancy (subject guide, 5.3) either by statutory
notice (under section 36 LPA 1925) or by one or other of the methods
outlined in Williams v Hensman. This will help to identify which of the
original equitable co-owners may claim a share of the proceeds if there
is a sale of Seaview in 2009. Surprisingly, a number of candidates
made a costly mistake early on by asserting that originally the four
must have been beneficial tenants in common, This removed the need
to go on to examine how far the dealings between the equitable co-
owners from 2007 to 2009 may have had the potential to effect
severance of the equitable joint tenancy. Another commonly
overlooked part of the problem concerned the TOLATA trust of land,
and in particular a consideration of the factors which the court may
consider in exercising its jurisdiction under sections 14 and 15 of the
1996 Act to resolve the disagreement between Belinda and Davina
about selling Seaview (subject guide, 5.5).
Question 4
Rita owns a property which comprises a ground-floor shop and a first-floor,
one-bedroom, flat. The flat and shop have separate entrances. In 2007, Rita
agreed to grant Audrey a lease of the shop for three years at an annual rent
of £8,000, the rent to be paid in monthly instalments. The agreement also
provides that either party may terminate the lease by giving six months’
notice. The lease has never been executed; but Rita has moved in and started
paying rent each month.
Last year Rita agreed that her friend’s son, David, a trainee hairdresser, and
his girlfriend, Tina, could live in the first-floor flat. Rita drew up a ‘licence’
agreement and insisted that David and Tina sign separate copies. The
agreements provide that they will each pay £300 per week as an ‘occupation
fee’; and that they will be able to live in the flat for three years ‘or until
David completes his training’. The agreement also states that David and Tina
must vacate the flat so that it can be cleaned every Tuesday between 12
noon and 2pm. David and Tina have always preferred to do all their own
cleaning.
Advise Rita about: (a) how much notice she needs to give Audrey to leave the
shop; (b) the legal nature of the agreement she has with David and Tina.
This question invites a consideration of, among other points, equitable
leases and the lease/licence distinction. Usually part (b) was handled
with a greater level of competence than part (a). The single most
serious error in answers to part (a) can be attributed to a failure to
read and assimilate the facts with care. Candidates assumed that Rita
and Audrey had created a formal lease when the facts clearly state they
had only agreed to the grant of a lease. As a consequence, the vast
majority of answers overlooked the possibility that an equitable Walsh
v Lonsdale type lease (subject guide, 6.2.2) might exist and help
determine the duration of notice Rita needs to give to Audrey. (To
their credit, candidates were fortunately not misled by the
4
typographical error in line 6, and invariably correctly recognised that it

must have been Audrey (rather than Rita) who had moved in.)
In part (b) most candidates recognised that the central issue is to
determine if David and Tina can claim to have a lease (as opposed to a
licence). On the facts this depends upon exploring if (i) their
agreement gives them exclusion possession of Rita’s flat, and (ii) the
maximum duration of their term can be said to satisfy the test of
certainty as re-stated in the House of Lord’s decision in Prudential
(subject guide, 6.1.3). As to exclusive possession, on the whole the
answers would have be improved had candidates made greater use of
the specific terms of the written agreement, and drawn far more
extensively on the wealth of case law about establishing whether the
couple, as multi-occupiers, have the four unities to establish a joint
tenancy.
Question 5
Damien was the registered owner and occupier of Bridge House, which was
connected to a studio in which he made pottery. The studio was accessible
through an internal door in Bridge House and also by an external door which
opened directly on to a small lane at the rear of the property. Damien
regularly used the external door as a short-cut to reach the local train
station.
In 2003 Damien granted a lease of the studio to an artist, Jennifer, for a
period of five years. In 2004 Damien told Jennifer that she was welcome to
paint in the garden and to park her motorcycle in the drive of Bridge House
whenever she wished. Jennifer did not object to Damien continuing to use
the studio’s rear entrance as a short-cut whenever he liked. The lease of the
studio was renewed for a further five years in 2008.
Damien has now sold the freehold of the house and studio to Eric. Eric has
told Jennifer he wants her to stop using the driveway and garden. Jennifer
has responded by telling Eric that he must not make use of the rear entrance
to the studio.
Advise Eric.
This challenging and full question proved a popular choice, although
the quality of the answers was mixed. It raises a range of issues
concerning easements, requiring a detailed consideration of three
broad questions: (a) which of the three rights being claimed are
capable of being easements; (b) whether any of them have come into
existence by one or more of the recognised methods of implied creation
(subject guide, 8.2); and (c) issues of priority/enforceability of the
easements against third parties (subject guide, 8.4 and 8.5). Too many
answers failed to deal adequately (or at all) with the legal points
presented by the facts in the problem that relate to (b) or (c). Instead
many answers went no further than examining if any of the three
rights claimed could be said to satisfy the characteristics outlined in Re
Ellenborough (subject guide, 8.1.1). The better answers were able to
identify accurately which claims were by implied grant (Jennifer) and
that Damien had only two possible methods (necessity and common
intention) to support his potential to implied reservation.
5
Question 6
‘The rules governing the passing of benefit and burden of freehold covenants
could and should be simplified.’
Discuss.
In general the answers to this essay question on freehold covenants
(subject guide, Chapter 9) were of a disappointing quality. Most
candidates were content to limit themselves to describing the existing
rules about the passing of benefit and burden. There was seldom any
trace of an argument, or an attempt to engage with the quotation itself.
This is surprising. Even before the Law Commission published its most
recent work (Easements, Covenants, and Profits a Prendre: A
Consultation Paper, Consultation Paper No 186, (2008)) there have
been many calls for reform of the law. For instance, there are well-
known academic and other critics of the rule (endorsed by the House
of Lords in Rhone v Stephens (1994)) which prevent the burden of
positive covenants from being enforced against successors in title to the
covenantor. Moreover, it can be readily argued that one effect of
Federated Homes is to simplify the (equitable) rules relating to passing
of the benefit of covenants.
Question 7
Critically assess the contribution that the equitable doctrine of proprietary
estoppel makes to modern land law.
Perhaps unsurprisingly relatively few candidates chose to tackle this
particularly demanding essay title. Unlike the rest of the examination
paper the subject matter of this question is far less narrowly focused.
Answers might legitimately range across the whole of the syllabus. In
particular, they might offer a critical assessment of the contribution of
estoppel: in the context of formalities for contracts relating to land; to
the creation of licences; and for those seeking to establish a beneficial
interest in land.
Question 8
Matt has recently purchased Grange Farm from Oliver; title to Grange Farm
has always been registered. Oliver has since moved to live in Australia. Matt
has now discovered the following information.
a) Roy, a local gardener, claims that he has a two year lease of a barn on
Grange Farm in which to store his gardening tools.
b) Caroline, Oliver’s wife, has recently returned from Norway where she
spent a year running a hotel. Caroline did not know about the sale of
Grange Farm. She paid the deposit when Oliver purchased the property
some years ago. Caroline insists she still has rights to Grange Farm.
c) Ruth, the owner of a neighbouring farm, Brookfield, claims she has
acquired an easement to use the underground drains that run across
Grange Farm.
d) Ed, a tenant farmer of part of Grange Farm, claims that he has an
agreement to buy the land over which he has the tenancy.
Advise Matt about his legal position in relation to any claims made by Roy,
Caroline, Ruth and Ed.
Briefly indicate how your answer would differ if unregistered land law
principles could still govern both title to, and the above claims to rights over,
Grange Farm.
6
This problem concerns issues about which of the competing property

rights may take priority over (be enforceable against) Matt’s title to
Grange Farm. As such, it depends upon a secure and detailed grasp of
the rules and ability to apply them in an economical way. The question
asks for a brief comparison of how the relevant rules of unregistered
land (notably land charges and overreaching: subject guide, Chapter 2)
might determine the same priority disputes. But this only serves to
underline the fact that the principal focus of the answer should be on
the relevant parts of the Land Registration Act 2002 (subject guide,
Chapter 3). There were two major recurring failings worth
highlighting. First, some candidates misinterpreted the question and
wrote about determining what, if any, property rights existed (for
instance, leases and easements) rather than dealing with the way in
which they can or had (or had not) been protected. Second, a number
of candidates spoiled their answers by revealing fundamental
confusion of the unregistered land rules and ideas, on the one hand,
with those that apply in registered land, on the other. When tackling a
question on this topic it is crucial to have a clear understanding of the
separate systems, and the different form of protection each offers both
Matt and those who are claiming to have rights that bind his registered
title.
7
266 0003 Land law Zone A
Introduction
The pattern of this Chief Examiner’s Report is as follows.
In the General remarks section you will find observations about the
standard expected and achieved by the cohort who sat this year’s
paper, together with some suggestions on how best to prepare for, and
approach answer to, the examination questions. Although the
suggestions – technical and substantive – are prompted by this year's
answers, it is to be hoped that they can assist future examination
candidates.
In Specific comments on questions, you will find brief
observations on each individual question in turn. However, these
observations should not be taken as prescribing a model answer for the
particular question. Rather, the intention is to identify some of the
common pitfalls and best practice encountered in the examination
scripts. Hopefully, doing so will indicate potential areas for
improvement, both in terms of the content and the techniques that
candidates may find useful in constructing good answers. In this part of
the report you will also find references to relevant parts of the Land
law subject guide and/or other resources available on the Virtual
Learning Environment (VLE).
General remarks
In general, the marks for this year’s cohort of candidates was broadly
comparable with that prevailing in recent years. Some candidates
demonstrated a secure grasp of the principles being tested and an
awareness of productive techniques by which effective answers may be
made, especially to problem questions. However, there is evidence
from the examination answers that there is ample scope for better
practice to be more widespread. Good answers combine a thorough
and detailed knowledge and understanding of the topic with an ability
to engage with either the particular facts of the problem scenario or the
precise terms of the essay title.
As for the legal knowledge, it is important to ensure that you study as
wide a range of primary (cases and statutes) and secondary literature
as possible. Examiners attach a great deal of importance to answers
which go further than provide impressive information about the legal
topic in the abstract. In part, problem questions are designed to test a
candidate’s understanding, assessing his or her ability to apply legal
knowledge through a reasoned exploration of how the law may or may
1
not apply to the facts. Where there is doubt as to what the law is, or
about its applicability to the specific circumstances, candidates may
also want to add a critical component to their answers, perhaps
advocating a particular solution.
The Examiners continue to be surprised by the number of candidates
whose overall mark suffers either because they attempt too few
questions, and/or because the quality and length of their fourth answer
is far weaker in than the first three. This can have a dramatic impact
on the final mark awarded, sometimes even making the difference
between success and failure. Therefore, you should always keep in
mind the rubric on the examination paper about the number of
questions to be attempted. You should also remember how crucial it
is to manage your time in the examination room.
Moreover, this failure to completely answer enough questions
highlights the importance of using the syllabus (published on the VLE)
when planning a revision strategy, before selecting how many and
which topics to prepare. Like its predecessors, this year’s examination
paper reflected the entire syllabus. Examination questions may
combine aspects of different topics from across the syllabus and the
question paper as a whole may legitimately not include some parts of
the syllabus. It follows that question-spotting is a risky business and
therefore inadvisable. Carefully checking your revision plan against the
syllabus may therefore ensure that you have a sufficient grasp of
enough topics when you enter the examination room so that you will
have no difficulty in being able to answer the requisite number of
questions. You may be in a position to choose which questions to
attempt.
Candidates are ultimately assessed on the quality of the knowledge and
understanding revealed in their answers. However, it is worth
mentioning that presentation also matters. Examinations can, of
course, be stressful experiences for candidates; and Examiners can and
do make some allowance for this when reading scripts. Nonetheless,
Examiners are pleased when candidates take care with important
matters such as neatness and the use of English in the presentation of
their answers. It goes without saying that all candidates must do their
utmost to ensure that their handwriting is legible.

Question 1
Ted, the registered freehold proprietor of Skittles, a bowling alley, entered
into the following arrangements:
(a) Ted signed a written agreement with Mack, a drama student, allowing
Mack to run a hamburger kiosk in Skittles’ entrance lobby without
charge. The agreement stipulated that it was to continue for ‘three years
or until Mark gets his first acting job’. Their agreement also provided for
Ted to retain a key so that Skittles’ cleaners can clean the kiosk between
6.00 and 6.30 am each Tuesday.
(b) Ted told Dulcie, his mother, that she was welcome to use the advertising
hoardings on the roof at Skittles to advertise her neighbouring
2
sportswear business for as long as she wanted. Dulcie paid for the
hoardings to be repaired and upgraded.
(c) Ted agreed to let a vacant stall in Skittles’ car park to James for four
years at an annual rent of £6,000. James started to use the stall for the
sale of popcorn and candy floss and paid Ted £500 a month.
When Ted sold Skittles, the new owner, Richard, planned to demolish the
bowling alley and build a hotel in its place. He therefore asked Mack, Dulcie
and James to leave.
Discuss.
A fairly large number of candidates attempted this question, but with
markedly different degrees of success. A principal cause for this
variation was the extent to which candidates recognized that the
relevant factual information given (and to some extent not given) in
the question is deliberately meant to be open-textured. As such, there
is considerable potential for answers to discuss different possibilities,
both about leases and licences. In addition, the change in Skittle’s
ownership calls for a discussion of questions of priority. However, only
a relatively small number of the better answers considered the
enforceability of any proprietary rights Mack, Dulcie and James may
claim against the new owner, Richard.
In part (a), in addition to discussing the possibility that a lease, rather
than a licence, has or has not been created (including issues about the
Prudential approach to maximum certainty of duration) (subject guide,
6.1.3) and exclusive possession (subject guide, 6.1.4)), there is also a
need to discuss whether or not there is a property interest that can be
asserted against Richard’s registered title.
Parts (b) and (c) offer similar scope to plead the existence of personal
and proprietary rights. The better answers to part (b) saw how Dulcie
might seek to make a claim based upon proprietary estoppel, and
discuss how her claim may be satisfied and enforced against Richard’s
registered title (subject guide, 7.2). It is also worth mentioning that, as
in previous years, the Examiners were surprised how many candidates
were unable to analyse the facts and their legal implications in part (c)
accurately and with care. This meant that only the better candidates
recognized that the parties have only entered into an agreement for
a lease, which therefore calls for a consideration of the Walsh v
Lonsdale equitable lease (subject guide, 6.2.2).
Question 2
In 1989 Zeb moved from his farm, Greengate, to live in a nearby village after
all his cattle and sheep were slaughtered as part of a government scheme to
control the spread of foot and mouth disease. Florence, the owner of Hillside,
a neighbouring farm to Greengate, told her friends that she was anxious to
ensure that Greengate did not deteriorate in case Zeb decided he wanted to
return to farming. She therefore let her goats graze the fields on Greengate.
By 1992 Florence had regularly repaired the dry stone walls between
Greengate and the road to stop the goats from escaping. In 1994 she
installed a permanent water supply and built a shed in which to store animal
feed. When Florence died in 1999, her son, Dylan, inherited Hillside. Dylan
continued to graze goats on Greengate land and repair the walls. Zeb sold
Greengate to Macdonald, who asked Dylan to remove his goats.
3
Advise Dylan on the basis of each of the following alternative assumptions:

(a) title to Greengate is registered; and
(b) title to Greengate is subject to unregistered land law principles
and there had been no sale by Zeb.
This relatively straightforward problem question on adverse possession
proved to be popular. The better answers made full use of the rich case
law examples, and also the detailed factual information in the
question. They applied the key tests of factual possession and intention
(as restated in the leading case of Pye v Graham: subject guide, 11.1.2)
to determine if what is done with Greengate since 1990 might sustain a
claim to adverse possession. For part (a), as some (but not all)
candidates realised, determining the date when Florence may have
begun her adverse possession gives scope for advice on the alternative
prospects of the claim succeeding under the terms of the Land
Registration Act 1925, as opposed to the more limited terms of the
legal regime in the Land Registration Act 2002 (subject guide, 11.2).
As many candidates recognized, there is relatively little to say in
response to part (b). This means it is perfectly acceptable (and even
desirable) to dispose of it by briefly pointed out the importance of
sections 15(1) and 17 of the Limitation Act 1980 (subject guide, 11.1).
By contrast, too few answers dealt explicitly with the impact of Dylan
inheriting from his mother. More worryingly, a number of answers
erroneously introduced an often detailed and irrelevant discussion of
the compatibility of adverse possession rules with the Human Rights
Act 1998.
Question 3
In 2003 Huw and Gemma acquired a holiday cottage, Seabreeze. Although
Huw paid the entire purchase price, title to Seabreeze was transferred to
both of them as beneficial joint tenants.
In 2004 Huw bought a dilapidated Victorian town house, Cartref, to live in
together with Gemma and their son, Lewis. Title to Cartref was registered in
Huw’s name. Huw paid the deposit, and the balance of the purchase price
was raised by way of mortgage with the Principality Bank. The mortgage
repayments were paid from Huw and Gemma’s joint bank account, into which
Huw’s earnings as a plastic surgeon were paid. Gemma stayed at home to
look after Lewis who has severe mobility problems. She also carried out
extensive home improvements and supervised the builders who were
employed to adapt Cartref for Lewis’s benefit.
Last year, when Gemma was staying with Lewis at Seabreeze she received a
post card from Huw telling her he wanted both properties sold because he
was leaving her to set up home with his colleague, Iris. Gemma seeks advice
on:
(a) what, if any, interest she has in Cartref and Seabreeze; and
(b) whether there is any legal basis for her to resist the sale of Cartref.
Advise Gemma.
A large number of candidates chose to answer this question; and some
answers were impressive. Most, but not all, answers adopted the
sensible structure explicitly identified in the question by offering advice
on (a) and (b) in turn. Surprisingly, a noticeable minority of
4
candidates ignored the rubric and wrote more generally – never a wise
or productive approach in responding to problem questions. The better
answers were also careful to keep precisely to the terms of the rubric in
part (b), resisting the temptation to broaden the advice to consider
how Gemma may legally resist any proposal to sell Seabreeze.
Confining answers to the questions asked is obviously important.
Besides, as set, the question contains plenty of relevant matters upon
which to give advice to Gemma. These include: discussing the basis
upon which she may make a claim to a beneficial interest to Cartref,
and the elements required for such a claim to succeed – all of which
inevitably requires considering the case law surrounding Stack v
Dowden (subject guide, 5.2.2). The question also calls for advice on the
operation of the court’s jurisdiction, under sections 14 and 15 of
TOLATA, to determine the co-owner’s dispute as to the sale of Cartref
(subject guide, 5.5). The better answers were alive to the need to
consider a point overlooked by many – the potential for Huw’s postcard
to effect severance (subject guide, 5.3) of the equitable joint tenancy.
Question 4
To what extent does the Landlord and Tenant (Covenants) Act 1995 represent
a satisfactory framework for the law providing for the passing of the benefit
and burden of the landlord’s and the tenant’s covenants?
This is a challenging question. Its substantive focus is obvious (subject
guide, 6.4.1). However, the majority of those who attempted to answer
it ignored its terms and simply wrote generally about the law on
leasehold covenants, including that which applied before the 1995 Act
came into force. This is not likely to fool the Examiners; nor are they
likely to be persuaded into awarding many marks for such scatter-gun
answers, even if the answer contains material which may have some
potential value and relevance to the subject-matter of the question. It is
therefore far better to begin by thinking carefully about the language
in the question – and in particular what meaning might be attributed
to the phrase ‘satisfactory framework.’ Having established this, a good
answer might then proceed to consider the specific provisions of the
legislation, the shortcomings it sought to address, the case law and the
views of commentators on the 1995 Act, drawing upon them as a
means of offering the assessment required by the question.
Question 5
Lilly obtained a loan by way of legal mortgage from the Felpesham Bank
using the registered title to her house, The Grange, as security. One term of
the mortgage stipulated that the amount of interest to be paid would be
doubled in any month in which the sum Lilly borrowed exceeded the market
value of The Grange. On the first occasion this happened Lilly was unable to
make the monthly payments due under the mortgage. As a result the
Felpesham Bank repossessed The Grange before selling it privately to Kylie,
the sister of the branch manager. Lilly discovered that a similar property in
the neighbourhood was sold a month later at auction for a higher price than
Kylie paid for The Grange.
5
The Felpesham Bank has now written to Lilly to tell her that, as the sale of
The Grange did not realise enough money to repay the loan, she must
account for the difference.
Advise Lilly.
How would your advice differ if, when the Felpesham Bank had sought to
repossess The Grange, Lilly had wanted to stay there to arrange a private
sale?
Quite a few candidates opted to tackle this mortgages problem
question and there were some creditable responses. However, some
answers might have achieved higher marks if greater care had been
taken in the explicit application of the legal principles and cases
mentioned to the specific facts. It is never sufficient to simply state the
law, even if the law stated is relevant.
Overall, advice to Lilly needs to cover the validity of the term about the
amount of interest (subject guide, 10.2.3), and the law governing
possession and sale (subject guide, 10.3). The law and facts raise
plenty of challenging issues for advice on these matters. Therefore
there is no need to include any preamble concerning the history and
nature of the mortgage or the proper legal requirements for its
creation. This is redundant, wasteful, and represents an example of
poor technique. The more successful answers rightly responded from
the outset and throughout by engaging with the specific facts in the
problem’s narrative and the legal issues that flow from them.
Question 6
In 2003 Umberto purchased a house, title to which is registered. The house
had a large garden. In 2005 Umberto sold part of his garden to his
neighbour, Oscar. As part of the transfer Oscar covenanted that he would: (a)
use the land exclusively as a garden; and (b) plant and maintain a hedge on
the boundary of the land being sold. Both covenants were made for the
benefit of all Umberto’s ‘adjoining or adjacent’ land. It was further agreed
that covenant (b) would not benefit successors in title to Umberto unless the
benefit of the covenant was expressly assigned to them.
In 2006 Oscar sold his land to Pat. He told Pat about the terms of the
covenants, and she agreed that the price she was paying reflected the
existence of the covenants.
In 2008 Umberto sold half of his remaining land to Virginia and the benefit of
covenant (b) relating to the hedge was expressly assigned. In 2009 Virginia
sold the land to Walter but the transfer made no mention of either covenant.
Last month Walter learnt that Pat is planning to build a house on the land. He
is also upset when Pat refused to maintain the boundary hedge.
Advise Walter.
As the better answers noticed, the focus of the advice for this question
about freehold covenants should be the extent to which Walter, as
successor in title to the land that belonged initially to the covenantee
(Umberto), may be able to enforce some or all of the covenants against
Pat, who is the successor in title to the covenantor’s land. In other
words, the question is seeking to test an understanding of the rules
about passing the benefit and the burden of freehold covenants. Good
answers therefore moved systematically and in turn through an
6
examination of how, if at all, the benefit and the burden of the

covenants have passed with the sale of the land to which they relate.
This offers a productive framework in which to organize the advice.
Keeping this framework in mind may also serve to ensure that the
advice is comprehensive. Commonly, candidates considered either the
burden or the benefit, but not both. Yet, Walter will not be able to
bring a successful action unless he can establish both that he is entitled
to the benefit and that Pat is subject to the burden of the various
freehold covenants. As for the benefit passing, the most relevant rules
on the facts in the question lie in equity, either by annexation or
assignment (subject guide, 9.2.1). Similarly, as Rhone v Stephens
reiterates, equity will only countenance the passing of the burden of
restrictive/negative (and not positive) covenants; and then only if
certain criteria are met (subject guide, 9.1). One key requirement is
that the burden must be protected by notice on the Land Register. On
this aspect of the question, candidates seldom recognized the potential
in the facts and law to argue if, when, and how a purchaser (such as
Pat), who has agreed to the terms of the unprotected covenants,
perhaps paying a lower price as a consequence, might (and should)
still be held bound by the terms of the restrictive covenant.
Question 7
Critically assess the law determining which rights are eligible to be
easements, and when such rights may be impliedly created (other than by
prescription). Indicate what, if any, reforms you would propose to the current
law.
Perhaps unsurprisingly, this question proved to be relatively
unpopular. Although at first sight its terms appear quite
straightforward, it is undoubtedly a testing essay title. A good answer
demands more than a descriptive account of those issues indicated by
the question as being relevant – eligibility to be an easement (subject
guide, 8.1) and their implied creation (subject guide, 8.2.2). As the
question is written this way, the onus is on the candidate to determine
how to define the terms of reference for a critical assessment. A good
answer needs to show care in observing the designated parameters
provided in the wording, either explicitly or implicitly. There is no call
to include a discussion of the rules concerning prescription (yet some
candidates did just that); nor should answers deal with the ways in
which easements may be expressly created.
The question also gives candidates an opportunity to write about of the
scope for law reform. Here, a noticeable deficiency emerged. Most
candidates who attempted the question clearly did not have an
awareness of the on-going Law Commission reform project, in
particular their 2008 Consultation paper (No 186): Easements,
Covenants, and Profits a Prendre (subject guide, 8.2.3, ‘Reform’).
Question 8
Ken was registered proprietor of a terraced house in Carnation Street which
includes a large back yard. Ken’s wife, Deidre, and his son, Peter, also
contributed to the purchase price. Ken entered into a five-year lease of the
7
back yard to his neighbour, Jack. Jack used the yard to keep his racing
pigeons in pigeon coops.
Unbeknown to Deidre and Peter, Ken decided to sell the house to Gail. When
Gail visited the house Deidre was away on a six-month secondment to her
employer’s New York office. Gail admired the pigeons, and met Peter. She
asked him what he was doing there. Peter answered by telling Gail he was
Ken’s son.
Gail has just completed the sale and become the registered proprietor of the
house. However, when she tried to move in she discovered that Deidre and
Peter were living there and Jack was cleaning out the pigeon coops in the
back yard.
Advise Gail who wants to know if she can evict Deidre, Peter and Jack.
A number of candidates chose this demanding problem on registered
title. The better answers recognized that the principal focus of the
advice needs to be on protection and enforceability of rights under the
Land Registration Act 2002 (subject guide, 3.2–3.4). This concerns the
extent to which the property rights belonging to Deidre, Peter and Jack
can be enforced against the purchaser of the registered title to the
house, Gail.
A good answer will therefore realise that the facts are such that there is
neither need nor scope to debate the existence of the respective
property rights, be it the claims to beneficial interests (Deidre and
Peter), or to a lease (Jack). The nature of each claimant’s rights is, in
effect, a matter which the question deliberately intends to put beyond
dispute. This is why the question states that Jack has a lease – and not,
as an appreciable number of candidates tried to suggest (flying in the
face of the question) an easement. Similarly, there is insufficient
information in the question to justify an extensive and detailed
treatment of the case law about whether (and how) Deidre and Peter
may or may not to be entitled to claim that their contribution to the
purchase price generates beneficial rights for each of them. The
question allows their entitlement to property rights to be assumed.
(Moreover, it must be appreciated these are issues of law that feature
in other questions on the examination paper.) Little, if any credit, was
therefore available for extensive discussion of constructive trust
principles or the legal characteristics of a lease.
By dwelling on the existence of each party’s rights, many candidates
left themselves far too little time and space to offer a thorough
treatment of the many issues relevant to the question concerning how
such rights may or may not be protected and therefore gain or lose
priority when registered title in the house is sold to Gail. Here, the
better candidates identified and attempted to apply the relevant
statutory provisions on unregistered interests that override, which are
contained in the Land Registration Act 2002 (subject guide, 3.3.1).
8
266 0003 Land law Zone B
Introduction
The pattern of this Chief Examiner’s Report is as follows.
In the General remarks section you will find observations about the
standard expected and achieved by the cohort who sat this year’s
paper, together with some suggestions on how best to prepare for, and
approach answer to, the examination questions. Although the
suggestions – technical and substantive – are prompted by this year's
answers, it is to be hoped that they can assist future examination
candidates.
In Specific comments on questions, you will find brief
observations on each individual question in turn. However, these
observations should not be taken as prescribing a model answer for the
particular question. Rather, the intention is to identify some of the
common pitfalls and best practice encountered in the examination
scripts. Hopefully, doing so will indicate potential areas for
improvement, both in terms of the content and the techniques that
candidates may find useful in constructing good answers. In this part of
the report you will also find references to relevant parts of the Land
law subject guide and/or other resources available on the Virtual
Learning Environment (VLE).
General remarks
In general, the marks for this year’s cohort of candidates was broadly
comparable with that prevailing in recent years. Some candidates
demonstrated a secure grasp of the principles being tested and an
awareness of productive techniques by which effective answers may be
made, especially to problem questions. However, there is evidence
from the examination answers that there is ample scope for better
practice to be more widespread. Good answers combine a thorough
and detailed knowledge and understanding of the topic with an ability
to engage with either the particular facts of the problem scenario or the
precise terms of the essay title.
As for the legal knowledge, it is important to ensure that you study as
wide a range of primary (cases and statutes) and secondary literature
as possible. Examiners attach a great deal of importance to answers
which go further than provide impressive information about the legal
topic in the abstract. In part, problem questions are designed to test a
candidate’s understanding, assessing his or her ability to apply legal
knowledge through a reasoned exploration of how the law may or may
1
not apply to the facts. Where there is doubt as to what the law is, or
about its applicability to the specific circumstances, candidates may
also want to add a critical component to their answers, perhaps
advocating a particular solution.
The Examiners continue to be surprised by the number of candidates
whose overall mark suffers either because they attempt too few
questions, and/or because the quality and length of their fourth answer
is far weaker in than the first three. This can have a dramatic impact
on the final mark awarded, sometimes even making the difference
between success and failure. Therefore, you should always keep in
mind the rubric on the examination paper about the number of
questions to be attempted. You should also remember how crucial it
is to manage your time in the examination room.
Moreover, this failure to completely answer enough questions
highlights the importance of using the syllabus (published on the VLE)
when planning a revision strategy, before selecting how many and
which topics to prepare. Like its predecessors, this year’s examination
paper reflected the entire syllabus. Examination questions may
combine aspects of different topics from across the syllabus and the
question paper as a whole may legitimately not include some parts of
the syllabus. It follows that question-spotting is a risky business and
therefore inadvisable. Carefully checking your revision plan against the
syllabus may therefore ensure that you have a sufficient grasp of
enough topics when you enter the examination room so that you will
have no difficulty in being able to answer the requisite number of
questions. You may be in a position to choose which questions to
attempt.
Candidates are ultimately assessed on the quality of the knowledge and
understanding revealed in their answers. However, it is worth
mentioning that presentation also matters. Examinations can, of
course, be stressful experiences for candidates; and Examiners can and
do make some allowance for this when reading scripts. Nonetheless,
Examiners are pleased when candidates take care with important
matters such as neatness and the use of English in the presentation of
their answers. It goes without saying that all candidates must do their
utmost to ensure that their handwriting is legible.

Question 1
Ted, the registered freehold proprietor of Skittles, a bowling alley, entered
into the following arrangements:
(a) Ted signed a written agreement with Mack, a drama student, allowing
Mack to run a hamburger kiosk in Skittles’ entrance lobby without
charge. The agreement stipulated that it was to continue for ‘three years
or until Mark gets his first acting job’. Their agreement also provided for
Ted to retain a key so that Skittles’ cleaners can clean the kiosk between
6.00 and 6.30 am each Tuesday.
(b) Ted told Dulcie, his mother, that she was welcome to use the advertising
hoardings on the roof at Skittles to advertise her neighbouring
2
sportswear business for as long as she wanted. Dulcie paid for the
hoardings to be repaired and upgraded.
(c) Ted agreed to let a vacant stall in Skittles’ car park to James for four
years at an annual rent of £6,000. James started to use the stall for the
sale of popcorn and candy floss and paid Ted £500 a month.
When Ted sold Skittles, the new owner, Richard, planned to demolish the
bowling alley and build a hotel in its place. He therefore asked Mack, Dulcie
and James to leave.
Discuss.
A fairly large number of candidates attempted this question, but with
markedly different degrees of success. A principal cause for this
variation was the extent to which candidates recognized that the
relevant factual information given (and to some extent not given) in
the question is deliberately meant to be open-textured. As such, there
is considerable potential for answers to discuss different possibilities,
both about leases and licences. In addition, the change in Skittle’s
ownership calls for a discussion of questions of priority. However, only
a relatively small number of the better answers considered the
enforceability of any proprietary rights Mack, Dulcie and James may
claim against the new owner, Richard.
In part (a), in addition to discussing the possibility that a lease, rather
than a licence, has or has not been created (including issues about the
Prudential approach to maximum certainty of duration (subject guide,
6.1.3) and exclusive possession (subject guide, 6.1.4)), there is also a
need to discuss whether or not there is a property interest that can be
asserted against Richard’s registered title.
Parts (b) and (c) offer similar scope to plead the existence of personal
and proprietary rights. The better answers to part (b) saw how Dulcie
might seek to make a claim based upon proprietary estoppel, and
discuss how her claim may be satisfied and enforced against Richard’s
registered title (subject guide, 7.2). It is also worth mentioning that, as
in previous years, the Examiners were surprised how many candidates
were unable to analyse the facts and their legal implications in part (c)
accurately and with care. This meant that only the better candidates
recognized that the parties have only entered into an agreement for
a lease, which therefore calls for a consideration of the Walsh v
Lonsdale equitable lease (subject guide, 6.2.2).
Question 2
In 1989 Zeb moved from his farm, Greengate, to live in a nearby village after
all his cattle and sheep were slaughtered as part of a government scheme to
control the spread of foot and mouth disease. Florence, the owner of Hillside,
a neighbouring farm to Greengate, told her friends that she was anxious to
ensure that Greengate did not deteriorate in case Zeb decided he wanted to
return to farming. She therefore let her goats graze the fields on Greengate.
By 1992 Florence had regularly repaired the dry stone walls between
Greengate and the road to stop the goats from escaping. In 1994 she
installed a permanent water supply and built a shed in which to store animal
feed. When Florence died in 1999, her son, Dylan, inherited Hillside. Dylan
continued to graze goats on Greengate land and repair the walls. Zeb sold
Greengate to Macdonald, who asked Dylan to remove his goats.
3
Advise Dylan on the basis of each of the following alternative assumptions:

(a) title to Greengate is registered; and
(b) title to Greengate is subject to unregistered land law principles
and there had been no sale by Zeb.
This relatively straightforward problem question on adverse possession
proved to be popular. The better answers made full use of the rich case
law examples, and also the detailed factual information in the
question. They applied the key tests of factual possession and intention
(as restated in the leading case of Pye v Graham: subject guide, 11.1.2)
to determine if what is done with Greengate since 1990 might sustain a
claim to adverse possession. For part (a), as some (but not all)
candidates realised, determining the date when Florence may have
begun her adverse possession gives scope for advice on the alternative
prospects of the claim succeeding under the terms of the Land
Registration Act 1925, as opposed to the more limited terms of the
legal regime in the Land Registration Act 2002 (subject guide, 11.2).
As many candidates recognized, there is relatively little to say in
response to part (b). This means it is perfectly acceptable (and even
desirable) to dispose of it by briefly pointed out the importance of
sections 15(1) and 17 of the Limitation Act 1980 (subject guide, 11.1).
By contrast, too few answers dealt explicitly with the impact of Dylan
inheriting from his mother. More worryingly, a number of answers
erroneously introduced an often detailed and irrelevant discussion of
the compatibility of adverse possession rules with the Human Rights
Act 1998.
Question 3
In 2003 Huw and Gemma acquired a holiday cottage, Seabreeze. Although
Huw paid the entire purchase price, title to Seabreeze was transferred to
both of them as beneficial joint tenants.
In 2004 Huw bought a dilapidated Victorian town house, Cartref, to live in
together with Gemma and their son, Lewis. Title to Cartref was registered in
Huw’s name. Huw paid the deposit, and the balance of the purchase price
was raised by way of mortgage with the Principality Bank. The mortgage
repayments were paid from Huw and Gemma’s joint bank account, into which
Huw’s earnings as a plastic surgeon were paid. Gemma stayed at home to
look after Lewis who has severe mobility problems. She also carried out
extensive home improvements and supervised the builders who were
employed to adapt Cartref for Lewis’s benefit.
Last year, when Gemma was staying with Lewis at Seabreeze she received a
post card from Huw telling her he wanted both properties sold because he
was leaving her to set up home with his colleague, Iris. Gemma seeks advice
on:
(a) what, if any, interest she has in Cartref and Seabreeze; and
(b) whether there is any legal basis for her to resist the sale of Cartref.
Advise Gemma.
A large number of candidates chose to answer this question; and some
answers were impressive. Most, but not all, answers adopted the
sensible structure explicitly identified in the question by offering advice
on (a) and (b) in turn. Surprisingly, a noticeable minority of
4
candidates ignored the rubric and wrote more generally – never a wise
or productive approach in responding to problem questions. The better
answers were also careful to keep precisely to the terms of the rubric in
part (b), resisting the temptation to broaden the advice to consider
how Gemma may legally resist any proposal to sell Seabreeze.
Confining answers to the questions asked is obviously important.
Besides, as set, the question contains plenty of relevant matters upon
which to give advice to Gemma. These include: discussing the basis
upon which she may make a claim to a beneficial interest to Cartref,
and the elements required for such a claim to succeed – all of which
inevitably requires considering the case law surrounding Stack v
Dowden (subject guide, 5.2.2). The question also calls for advice on the
operation of the court’s jurisdiction, under sections 14 and 15 of
TOLATA, to determine the co-owner’s dispute as to the sale of Cartref
(subject guide, 5.5). The better answers were alive to the need to
consider a point overlooked by many – the potential for Huw’s postcard
to effect severance (subject guide, 5.3) of the equitable joint tenancy.
Question 4
‘The law governing forfeiture for breach of covenant provides a drastic
remedy that unduly favours landlords and is therefore in need of reform.’
Discuss.
On the whole, answers to this essay question proved to be
disappointing for a several reasons. First, a number of candidates wrote
about leases in general with, at most, merely a passing reference to
forfeiture. Such misjudgments make it very difficult to give much, if
any, credit for what is written. Second, even where the content of
answers were confined to discussing relevant material, the level of
knowledge about the current law (subject guide, 6.3) and the repeated
calls for its reform (subject guide, 6.3.4) was extremely limited and
superficial. Third, all too often, relevantly focused answers might have
been improved if care had been taken to shape the answer by reference
to the precise terms of the quotation. It is important to engage with the
question throughout by responding to the quotation. Undoubtedly, the
language in the quotation gives the better candidates an opportunity to
frame the agenda. In so doing, it may help to draw upon key words in
the quotation and/or to agree or disagree with the propositions the
quotation explicitly (or implicitly) contains.
Question 5
Lilly obtained a loan by way of legal mortgage from the Felpesham Bank
using the registered title to her house, The Grange, as security. One term of
the mortgage stipulated that the amount of interest to be paid would be
doubled in any month in which the sum Lilly borrowed exceeded the market
value of The Grange. On the first occasion this happened Lilly was unable to
make the monthly payments due under the mortgage. As a result the
Felpesham Bank repossessed The Grange before selling it privately to Kylie,
the sister of the branch manager. Lilly discovered that a similar property in
the neighbourhood was sold a month later at auction for a higher price than
Kylie paid for The Grange.
5
The Felpesham Bank has now written to Lilly to tell her that, as the sale of
The Grange did not realise enough money to repay the loan, she must
account for the difference.
Advise Lilly.
How would your advice differ if, when the Felpesham Bank had sought to
repossess The Grange, Lilly had wanted to stay there to arrange a private
sale?
Quite a few candidates opted to tackle this mortgages problem
question and there were some creditable responses. However, some
answers might have achieved higher marks if greater care had been
taken in the explicit application of the legal principles and cases
mentioned to the specific facts. It is never sufficient to simply state the
law, even if the law stated is relevant.
Overall, advice to Lilly needs to cover the validity of the term about the
amount of interest (subject guide, 10.2.3), and the law governing
possession and sale (subject guide, 10.3). The law and facts raise
plenty of challenging issues for advice on these matters. Therefore
there is no need to include any preamble concerning the history and
nature of the mortgage or the proper legal requirements for its
creation. This is redundant, wasteful, and represents an example of
poor technique. The more successful answers rightly responded from
the outset and throughout by engaging with the specific facts in the
problem’s narrative and the legal issues that flow from them.
Question 6
Tom decided to build two houses on a plot of land of which he was the
registered proprietor. He completed the first house, Oaktree, and decided to
live there. When Tom finished building the second house, Yewtree, he leased
it by deed to Ed for six months.
A little while after moving in to Yewtree, Ed sunk pipes beneath the soil of
Oaktree’s garden. This was the least expensive and most direct route by
which the gas supply could be carried from the main road to Yewtree. Tom
did not mind because Ed agreed that Tom could keep his van in the garage
belonging to Yewtree. Tom also continued to use Yewtree’s garden as a
shortcut to the nearby river to go fishing.
In February 2010 Tom granted Ed a new lease for six years of Yewtree; soon
afterwards they had a furious row when Ed asked Tom to stop using his
garden as a shortcut to the river. Tom wrote to Ed demanding that Ed
remove the gas pipe from Oaktree. Ed responded by ordering Tom to remove
his van from the garage at Yewtree.
Advise Ed.
How would your advice to Ed be different if, after entering into the six-year
lease, Tom had sold Oaktree to Mike, and Mike had asked Ed to remove the
gas pipe from the garden at Oaktree?
This problem question about easements attracted a mixed quality of
response. Some answers suffered because they did little more than
rehearse the traditional common law requirements for determining if
the rights claimed might be eligible to be created as easements. To
their credit, better answers went beyond this, not least in recognizing
the importance of applying the Re Ellenborough Park criteria (subject
guide, 8.1.1) to test each of the rights claimed in turn. In doing this,
6
some answers successfully displayed an up-to-date appreciation of the

contested nature of some claims, including the judicial disagreement
about when parking rights may qualify as an easement.
Having disposed of eligibility, better answers also properly moved on
to offer Ed advice about his prospects of establishing how those rights
capable of being created as easements may have been impliedly
created as easements. This entails arguments about the rights he
wishes to continue to assert as well as those he may have created in
favour of Tom. Candidates are reminded that it is pivotal in such
discussions to be able to show, when relevant, an awareness of the
distinction between implied reservation and grant because there are
fewer legal grounds available to claims to implied reservation (subject
guide, 8.2.2). With arguments about the implied grant of rights in
favour of Ed, the better candidates were able to identify that, on the
orthodox view, section 62 and Wheeldon v Burrows do not overlap in
their application.
Finally the last part of the question gives candidates scope to advise on
issues of priority in registered land (including the operation of so-
called overriding interest). This involves considering the continued
enforceability of easements between Ed and Mike, the new owner of
Oaktree.
Question 7
Brian sold Greenfield, part of Ambridge Farm (title to which is registered), to
Adam. Adam covenanted to use Greenfield exclusively to grow fruit bushes,
and also to prevent the ditch between Greenfield and Ambridge Farm from
flooding. Both covenants were expressed to be ‘for the benefit of the land
retained by Brian’ and the covenant about growing fruit bushes expressly
stated that it was made for Brian’s personal benefit.
Brian sold Ambridge Farm to Matt, who later sold it to Oliver. When Adam
died, his will left Greenfield to Ian.
Oliver has objected to Ian’s plans to cut down the fruit bushes and to build a
restaurant on the land. He is also concerned that the walls of the ditch have
fallen into disrepair, increasing the risk that Ambridge Farm may suffer flood
damage.
Advise Oliver.
This relatively straightforward freehold covenants question proved to
be quite a popular choice with candidates (although some candidates
wrongly diagnosed it as being about leasehold covenants). It involves
dealing in turn with the benefit and the burden of the covenants,
applying the law to determine how, on the facts, each may or may not
have been transferred with the change in ownership of both the land
that benefits, and also that which is burdened, by the covenants. This
will determine if Oliver, a successor in title (via Matt) to the land
originally owned by the covenantee, Brian, may bring a claim for
breach of covenant against Ian, who has inherited the title to the
burdened land (subject guide, 9.1-9.3).
As the better candidates recognized, an important part of the advice
will be about the equitable principles relating to methods by which the
benefit may pass when the benefited land is sold, annexation and
7
assignment. The facts do not, as some thought, legitimately allow for

an exploration of enforcement through the local law which may apply
within a scheme of development. The better answers also rightly paid
close attention to the legally significant details provided by the facts.
This included exploiting the specific generic description of the land in
the covenant (as quoted in the question), and the covenant’s express
limitation of the benefit of the covenant about growing fruit bushes as
personal to Brian. Both points may be explored by reference to the
reasoning of the Court of Appeal in Crest Nicholson Residential South
Ltd v McAllister (subject guide, 9.2.2).
Question 8
‘Any legal regime that allows property rights to take effect without the need
for them to be registered must ensure that such rights are discoverable and
limited in number and scope. The provisions of the Land Registration Act
2002 do not fulfil these aspirations.’
Discuss.
This question about the current land registration provisions in the Land
Registration Act 2002 (subject guide, chapter 3) was not chosen by
many candidates. The better answers realized that it invites arguments
about matters such as the circumstances and extent to which the
legislative regime does and should allow rights to override a
disposition, even though they have not been registered or protected on
the register. There is also scope for answers to explore the way the
most recent legislation may or may not cater for the prospective
purchaser’s need to be able to discover rights that operate outside the
terms of the register. The better answers attempted to dissect the
language of the quotation, and strived to endorse and/or take issue
with the contentions contained in the quotation.
Typically, candidates resorted instead to reproducing what they knew
about land registration in general, without discrimination or any
relevant direction (sometimes answers even strayed in to wholly
irrelevant areas – including adverse possession, which itself is covered
by question 2). Not only is regurgitation poor technique, the content of
many such answers fell short, by containing partial, superficial and
inaccurate narrative accounts about the Land Registration Act 2002.
Moreover, only the better answers managed to write without confusing
registered and unregistered land ideas and rules. All this created an
impression that too many candidates who chose this question had
acquired limited, if any, understanding of the mechanics and objectives
of the current legislative framework about registered title and how it
provides for the protection of competing property interests.
8
Examiners’ report 2011

266 0003 Land law – Zone A
Introduction
In this introductory section you will find general observations on examination
performance, and also an indication of some of the Examiners’ expectations. The
aim is to guide your thinking about how to prepare for a Land law examination. It is
also hoped that these comments will assist you in developing productive techniques
for writing good answers under timed conditions. The remainder of the report is
devoted to feedback and suggestions that focus on each of the eight questions on
the 2011 paper. Although the comments are designed to help you both with the
substance of, and techniques for, approaching each question, they are merely
pointers. Therefore they are not to be taken as being model answers. Similarly,
although the comments may mention specific cases, statutes or other secondary
sources, such references are not intended to be exhaustive or definitive.
You are reminded that there is a wealth of resources you can access to assist you
with your study. Apart from the subject guide and study pack you can find a range
of online VLE resources (such as the Land law online audio presentations) to
support your learning. There are also annual publications of Recent developments,
and Newsletters on current cases and topics of interest, which can help you in
keeping up-to-date with significant judicial and other developments. In addition, it is
recommended that you make a careful study of Chapter 1 of the subject guide, and
the references it contains to other sources. They offer useful ideas on productive
study methods to adopt during the year, and ways of preparing effectively for the
examination. You will also find a helpful Newsletter (October 2007) devoted to the
topic of preparing for the examinations.
Good answers come in many different forms. However, features that might
commonly be found in a good answer to a problem question are: identification of the
relevant legal issues, and accuracy in stating the relevant law and its careful and
considered application to the material facts. If the law is unsettled then it will be
valuable to advise on such alternative possibilities that may lead to different
outcomes on the facts. As far as possible, you should give your answer a
systematic structure, ideally one that reaches a concluded view on each issue
before moving to deal with the next. It may be that an issue in the problem question
will expose a ‘gap’ in the law, or be one where the law is contested (perhaps
because there are conflicting ‘authorities’). This illustrates an opportunity for you to
add a reasoned, critical component to your answer. In doing this you may find that it
will help to refer to secondary sources, such as Law Commission publications or
scholarly books and articles. A good answer to an essay question may contain
many similar features. However, it is essential that you pay close attention to the
precise terms of the essay title, and engage with the language and ideas explicitly
(or implicitly) found in the title. It is also important that you take the utmost care in
expressing your ideas, so that your meaning is plain and unambiguous. Examiners
will undoubtedly be grateful and impressed by attention to detail and by neatness in
presentation because these are attributes that help to show you have put thought
into your answer and the presentation of your work.
Of course, all the advice above assumes that a good answer will show that you
have a sound knowledge of the law. Examiners will always seek to award marks to
1
266 0003 Land law
answers that contain accurate and detailed legal information. As in recent years, a
significant number of candidates clearly possessed a reasonable and competent
level of knowledge. All too often however, many candidates failed to capitilise on
their knowledge by applying the material they had memorised to answer the specific
question. You should keep in mind that the examination is designed to test
understanding, not regurgitation. There were also a worrying number of candidates
who did not complete four answers. It is hard to be certain if this is caused by
question-spotting or time mis-management. The examination is designed to test
your understanding of the whole syllabus and requires good management in
dividing the time available between the four answers. Otherwise the effect can be to
lower the (pass) mark achieved or, worse, may result in a failure to reach pass
standard. It is therefore in your best interests that you attempt the required number
of questions.
Question 1
‘Proof of exclusive possession is all that should be required for the parties to
establish that a lease has been created.’
To what extent, if at all, do you agree with this proposition?
General remarks
There were a lot of answers to this question which varied in quality. In effect, the
emphasis in the statement is on whether the law should require more than exclusive
possession to establish a lease. So, whilst an acceptable answer may refer to what
the law currently requires (subject guide, 6.1; study pack, Chapter 5) this is not
enough to engage fully with the quotation.
Law cases, reports and other references the Examiners would expect you to
use
A number of cases might be usefully considered, including leading decisions such
as: Street v Mountford (1985); Bruton v London & Quadrant Housing Trust (2000);
Prudential Assurance Co Ltd v London Residuary Body (1993); Ashburn Anstalt v
Arnold (1989).
Common errors
See the advice below regarding poor answers.
A good answer to this question…
A good answer to this question would cover the following:
• Critical assessment of the law on exclusive possession and the other
current legal requirements for a valid lease (certainty of duration).
• Consideration of how and why the law requires exclusive possession.
• The legal insignificance of rent.
• The extent to which leases are estates (rather than contracts), and what
need there is to distinguish the lease from the freehold estate.
• The implications of the controversial House of Lords decision in Bruton v
London & Quadrant Housing Trust (2000).
2
Poor answers to this question…

• Failed to engage with the precise terms of the quotation, and the
assumptions implicit in it.
• Contained extraneous legal information on leases: (i) without offering
justification – examples include formalities/registration; and the distinction
between equitable and legal leases; (ii) of no relevance whatsoever to the
essay title – such as leasehold covenants and forfeiture.
Question 2
Eastern County Council owns the registered freehold title to Dalton Manor,
which it occupies until 1996 before it moves its administrative headquarters
to a new site. Dalton Manor is about four hectares of land, comprising a large
building, a cottage and a garage. Eastern County Council now wants to sell
Dalton Manor to raise capital funds. When Oliver, their surveyor, visits the
property he discovers the following:
(a) Jolene is occupying the cottage, and claims to be a squatter. She tells
Oliver that she broke the lock of the front door in January 2000, and then
moved in. She immediately mended the roof and installed a new heating
system. She admits to Oliver that although she has lived in the cottage ever
since, she fully expects that one day Eastern County Council may ask her to
leave, or pay rent.
(b) Tom is making use of the garage. Tom shows Oliver a copy of a
contract for sale (dated 1998) by which Eastern County Council agreed to sell
him the garage. Tom also produces a receipt for the purchase price.
(c) The boundary fence between Dalton Manor and the neighbouring
Willow Farm appears to be in a different place from that shown on the plans
Eastern County Council gives Oliver. Consequently, a small part of land that
belongs to Dalton Manor is on the wrong side of the fence. Oliver speaks to
Pat, the owner of Willow Farm. She explains how, in 1999, she put the fence
up in place of a fire-damaged hedge, erecting it where her lawyer told her the
boundary lay between Willow Farm and Dalton Manor.
Advise Eastern County Council as to whether Jolene, Tom or Pat can make a
successful claim to be registered as proprietors of the parts of Dalton Manor
they occupy.
Indicate briefly how, if at all, your advice about Jolene’s claim would be
different if her legal position was governed by (i) unregistered land law rules;
and (ii) the Land Registration Act 1925.
General remarks
The main focus of this question is on the post-2003 regime on adverse possession
as it applies to freehold title under the Land Registration Act 2002 (subject guide,
11.3). This was a popular question with candidates.
use
Schedule 6 to the Land Registration Act 2002 (LRA 2002); s.75 Land Registration
Act 1925; ss.15 and 17 of the Limitation Act 1980; and JA Pye (Oxford) Ltd v
Graham (2003).
3
266 0003 Land law
Common errors
Failing to engage with the detailed statutory provisions contained in the LRA 2002,
especially the provisions in Sch 6, para 5.
A good answer to this question would…
• Identify the (common law) elements of a successful claim to adverse
possession (especially factual possession and intention); and draw on
relevant case law to apply each element of the claim to the facts – most
notably those relating to Jolene’s use of the cottage.
• Consider the potential application of the relevant legislative exceptional
circumstances which indicate if/when a claim might succeed even if Eastern
County Council were to object to Jolene, Tom or Pat’s applications to the
Land Registry.
• Cover the final part of the question by disposing of (i) and (ii) as they apply
to Jolene’s claim – ‘briefly’ as the question indicates.
Included descriptive material that had little or no relevance to the question, such as
adding a lengthy account of the developments in the case law concerning the (now
settled) question of compatibility between the law on adverse possession (before
and since the LRA 2002) and the Human Rights Act 1998.
Question 3
In 2005 Carlos purchased a shop in which to sell carpets. He used his savings
to pay 5% of the purchase price. Although the Big Bank declined to make
Carlos a loan, one of his regular suppliers, Rugland, advanced the balance of
the purchase price, subject to having a registered charge over the title to the
shop. The mortgage was for a period of 15 years. Carlos signed a mortgage
deed, in which he agreed to: (i) pay 10% above the highest rate of interest
charged by the Big Bank; (ii) buy all his supplies of carpet adhesive from
Rugland; and (iii) give Rugland an option, exercisable for the first 10 years of
the loan period, to buy the car park at the rear of the shop.
In 2011 Carlos’s business began to fail and he was therefore unable to make
two monthly repayments to Rugland. Last month he decided to leave the
premises and move abroad. He handed the keys to Rugland. Carlos also
removed a glass display cabinet, which his late father made especially to fit in
the shop, and to which he has a sentimental attachment.
Last month Rugland’s estate agent valued the shop at £400,000. One of
Rugland’s managers, Sandie, has expressed an interest in buying the shop if
she can get it for a good price.
Discuss whether: (a) Carlos has any legal basis to challenge the validity of
the terms of the mortgage; (b) Carlos is entitled to remove the glass display
cabinet; and (c) Rugland may sell the shop to Sandie.
General remarks
There were a number of competent answers to this question. There are a
considerable number of issues that can be legitimately discussed. Part (a) requires
an examination of the different ways in which the mortgagor’s equity of redemption
may be protected by the application of different legal grounds, such as ‘clogs and
fetters’ and unconscionability (subject guide, 10.2; study pack, pp.305–311). This is
4
a rich area in terms of relevant case law. In part (b) the discussion should be
narrowly trained on the possible application of the legal guidelines in discussing if
the cabinet is a fixture or chattel. Part (c) is concerned with the validity of a
proposed exercise of the mortgagee’s power of sale by Rugland in favour of one of
its employees (subject guide, 10.3.1).
use
Among the wealth of relevant case law and statutory provisions that would be
worthwhile to draw on in discussing this question are: Multiservice Bookbinding Ltd
v Marden (1978); Cityland & Property Holdings v Dabrah (1968); Kreglinger v New
Patigonia Meet & Cold Storage Co Ltd (1914); Samuel v Jarrah Timber & Wood
Paving Co Ltd ((1904); Reeve v Lisle (1902); Jones v Morgan (2002); Farrers v
Farrers Ltd (1880);Tse Kwong v Wong Chit Sen (1983); Holland v Hodson (1872);
Elitestone v Morris (1997)); as well as the Law of Property Act 1925, ss.101 and
103.
Common errors
There were no common errors but see below for details of both good and poor
answers.
• Explicitly adopt the structure of (a), (b) and (c) which is suggested by the
question, without adding a lengthy general introduction.
• Explore as many different causes of action (or alternative arguments) that
may possibly be raised in the advice (for example on the validity of each of
the three terms of the mortgage in (i), (ii), and (iii)) – even if some causes of
action are unlikely to succeed. It can be a worthwhile technique, which
helps to make the answer comprehensive, to raise and dismiss potentially
relevant grounds of legal challenge.
• Be structured so that the more tricky/moot points are dealt with in relative
detail and depth whilst the more straight-forward matters (such as part (b))
are discussed quite briefly.
• Offered (sometimes very detailed) descriptions of the general principles
and/or case law without attempting to apply any of this material to the
specific facts in the question.
• Strayed into areas that were neither relevant nor called for (such as
creation of mortgages; possession, foreclosure and appointment of
receivers).
Question 4
In 2006 Bianca, a solicitor, bought a garden flat in London. She paid the
deposit, raised the balance of the purchase price by way of mortgage, and
became the sole registered owner. In 2007 Bianca’s partner Ricky moved in to
the flat. Ricky gave up the tenancy of a cottage just outside Newcastle to
move to live in London. Ricky used the wages from his job as a second-hand
car dealer to landscape the garden, pay the food bills and pay for their
annual, Mediterranean cruise. In 2009, when Bianca gave birth to their
daughter, Tiffany, they agreed that Ricky would give up his job to stay at
home and look after Tiffany.
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Last month Bianca sold the flat to Phil, before emigrating to live in Spain with
a cruise ship singer, Manuel. Phil has now asked Ricky to leave the flat.
Advise Ricky.
General remarks
This proved an especially popular question. There were a number of strong
answers, but many failed to engage with the difficult issues satisfactorily. The facts
call for advice on Ricky’s entitlement to claim an equitable property right in the flat
(through proprietary estoppel or constructive trust), and the priority that any such
right may have when Phil buys the flat from Bianca.
use
There is a rich and growing body of interesting case law of relevance here. A useful
place to identify significant authorities is in the subject guide (5.1–5.3 and 7.3) and
also the 2011 Recent developments. See also State Bank of India v Sood (1997).
Key statutory provisions are ss.2 and 27(2) of the Law of Property Act 1925; s.116
and Sch 3, para 2 of the Land Registration Act 2002.
Common errors
The most common errors occurred when candidates only dealt with some of the
issues, such as partial treatment of the possible basis by which Ricky may claim an
equitable property interest in the flat and/or omitting advice about its priority on sale.
Be adept at applying the detailed legal information, including differences of judicial
and academic view, to the facts to mould coherent advice.
• Showed an insecure knowledge of the case law and key principles that
needed to be proven to found a claim in proprietary estoppel.
• Failed to address the pre-conditions and statutory procedure for
overreaching (study pack, pp.131–137).
Question 5
Ty Du is a small cottage with its own garden, which forms part of Brian’s
extensive estate, Whiteacre. The main farm house belonging to Whiteacre
benefits from its own tarmac drive leading to the main road, but Brian finds it
quicker to cross through Ty Du’s garden whenever he needs to walk to the
main road. Ty Du’s drains connect to the main sewer by running under
Whiteacre, although Ty Du is also served by a cesspit at the bottom of its
garden.
In 2008 Brian grants Rory a three year lease of Ty Du. Rory does not object
when Brian continues to cut through Ty Du’s garden to reach the main road.
Three months later, Brian gives Rory permission to leave his camper van in
one of Whiteacre’s disused stables during the winter months.
In 2011 Brian sells Rory the freehold title of Ty Du. A month later, Brian sells
Whiteacre to Jennifer. Jennifer wants to remove all the underground drains
beneath Whiteacre, and she also asks Rory to stop using the stable belonging
6
to Whiteacre. Rory is so annoyed at Jennifer’s behaviour that he padlocks his

garden gate to stop her from walking through Ty Du’s garden.
Advise Rory.
General remarks
This question calls for advice on the ability to establish an entitlement to three
easements: the right of way through Ty Du; the underground drains; and the right to
park the camper van in the stable (subject guide, 8.1; study pack, pp.237–244). The
advice also requires a consideration of one or more of the available methods of
implied creation (necessity; common intention; the rule in Wheeldon v Burrows and
s.62 of the Law of Property Act 1925). It might, or might not be available to argue
that the three rights have actually been created as easements (subject guide, 8.2.2;
study pack, pp.248–256).
All in all, there are therefore a considerable number of issues about which Rory
needs to be advised. It is important to find ways of avoiding repetition when dealing
with each of the three rights being claimed, and to ensure that due weight is given
to those issues specifically prompted by the facts.
use
Amongst the cases that might be useful are Re Ellenborough Park (1956) and
Moncrieff v Jameson (2007).
Common errors
• Stating the four traditional characteristics identified in Re Ellenborough
without advising on their potential application to the facts.
• Failing to identify correctly which are claims to implied reservation and
which are implied grant.
• Find an efficient order for making the individual points in the advice into a
coherent answer.
• Make the coverage as comprehensive as possible, raising all the potential
arguments for and against available methods of creation.
Were deficient in one or more of the following: limited coverage of the issues, the
detail of the law, or in its application to the facts.
Question 6
In 2003 Amside Holdings plc purchased a large piece of land, and began the
first phase of its development by building two large houses on half of the
land: ‘House 1’ and ‘House 2’. In 2004 Susan bought ‘House 1’. Six months
later, Clary purchased ‘House 2’. The transfer of ‘House 1’ and ‘House 2’
contained the following terms:
‘The transferee hereby covenants on behalf of himself and his successors in

title and for the benefit of the land retained by the transferor:
(i) to pay one-third of the cost of the maintenance of the private road;
(ii) to keep the front garden in a neat and tidy condition;
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(iii) not to use the property other than for residential purposes by one
family.’
The transfers of ‘House 1’ and ‘House 2’ also provided that the benefit of
covenant (iii) should be assigned whenever the land retained by the
transferor was transferred.
Over the years, ‘House 1’ and ‘House 2’ changed ownership several times. By
2010 ‘House 1’ was owned by Emma, and ‘House 2’ by Will. In 2011 Amside
Holdings plc ran out of development funds, and sold its remaining half of the
land to Caroline, and assigned her the benefit of covenant (iii) in writing.
However, a few months later, Caroline sold the land to Matt without assigning
the benefit of covenant (iii).
Matt now seeks your advice as to what legal steps he may take in respect of:
Emma, who has refused his request to tidy the garden of ‘House 1’; Will, who
has let ‘House 2’ to a group of five students at Felpesham University; and
both Emma and Will, who have each ignored his request to contribute
towards the cost of resurfacing the private road.
Advise Matt.
General remarks
This relatively straight-forward problem question on freehold covenants (subject
guide, 9.1 and 9.2) had some good answers. Many others did not score as well
because they addressed too few of the issues relating to the transmission of the
benefit and burden.
use
Useful authorities to include when advising Matt are: Rhone v Stephens (1994);
Tulk v Moxhay (1848); Federated Homes Ltd v Mill Lodge Properties Ltd (1980);
Crest Nicholson Residential (South) Ltd v McAllister (2004); Roake v Chadha
(1984); Halsall v Brizell (1957); Newton Abbot Cooperative Society Ltd v Williamson
and Treadgold Ltd (1952); along with ss.78 and 79 of the Law of Property Act 1925.
Common errors
• A failure to differentiate between the rules applicable to passing the benefit
and the burden of the covenants; or dealing with benefit or burden when
both need to be considered.
• Dealing with some but not all of the possible ways in which the benefit may
or may not have been passed from the original parties to the ultimate
owners of the benefited and burdened land.
• Cover all the relevant issues concerning transmission of benefit and burden
in a clear and systematic manner to provide comprehensive advice.
• Make sure that at each step the advice is applied specifically to the
circumstances of the parties.
Poor answers to this question identified the distinction between positive and
restrictive covenants without further discussion relating to the question asked. Poor
8
answers also lacked a sensible and coherent structure and/or systematic method
for advising on the detailed issues.
Question 7
Critically assess the view that the provisions in Schedule 3 of the Land
Registration Act 2002 relating to so-called ‘overriding interests’ manage to
strike an appropriate balance between the rights of registered proprietors and
those who hold competing interests over their land.
General remarks
This essay question holds a number of significant challenges. First it requires a
critical assessment. Second, it calls for you to identify what is meant by the phrase
‘appropriate balance’. Third, the question does not concern all the land registration
provisions in the LRA 2002. Rather, it is quite specifically about the unregistered
interests which override that are found in Sch 3, and most particularly on short
leases; impliedly created legal easements; and the interest of those who are in
actual occupation of the land (subject guide, 3.3.1; study pack, Chapter 3, 2.7.3–
2.8, pp.62–82)). In most cases this question was not answered well.
use
Apart from Sch 3 of the LRA 2002, there are a range of primary sources covered
and/or mentioned in the subject guide (Chapter 3). In addition, cases in the 2011
Recent developments, such as Thompson v Foy (2009) and Link Lending v Bustard
(2010), would have been useful inclusions.
Common errors
• Writing without depth about the regime introduced by the LRA 2002 without
focusing on Sch 3.
• Including references to case law and concepts that concern unregistered
land principles (such as land charges and the doctrine of notice).
• Use the introduction to establish the remit and/or the lines of argument to
be explored.
• Ensure that the answer makes a critical assessment of the view expressed
in the question rather than merely describing the provisions in Sch 3.
Poor answers tended to be narrative-dominated and overly general in their
treatment of the LRA 2002.
Question 8
In 2005 Sally and Kevin purchased Headroom, a hairdresser’s salon with a flat
on the ground floor below. Sally and Kevin are both registered as owners of
the fee simple of Headroom. They each contributed half of the purchase price.
They immediately moved in to the flat, and Sally set up her hairdressing
business in the salon.
In 2008 Sally and Kevin’s daughter, Tracey, was confined to a wheelchair

following a riding accident. She started to make daily trips to the
neighbouring swimming pool for physiotherapy.
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266 0003 Land law
In 2009, distressed by Tracey’s disability, Kevin began to gamble heavily. To

raise money to cover his gambling debts, he agreed to sell his interest in
Headroom to his mother-in-law, Audrey. However, Audrey’s savings proved
insufficient to complete the transaction, and Kevin therefore obtained a loan
by charging his interest in Headroom to the Weatherfield Bank.
In 2010 Sally’s business ran into financial difficulties, and Kevin moved out of
the property to set up home with his girlfriend, Molly. He also defaulted on his
loan repayments to the Weatherfield Bank. The Bank wants Headroom to be
sold.
Advise Sally on each of the following matters:
(a) her status as co-owner of Headroom.
(b) whether or not she and Tracey can carry on living in Headroom if
Kevin and the Weatherfield Bank want it to be sold.
(c) how her right to live in Headroom would be affected in the event of
Kevin being declared bankrupt, and his trustee in bankruptcy, Rita, seeking a
sale of Headroom.
General remarks
In part (a) the advice needs to identify the possibility that in 2005 a beneficial joint
tenancy was created, before turning to examine whether and how it may have been
severed by one or other of the events in 2009 involving Kevin, Audrey and the
Weatherfield Bank (subject guide, 5.2 and 5.3). Part (b) calls for a consideration of
s.15 the Trusts of Land and Appointment of Trustees Act 1996 and associated
case-law (subject guide, 5.5). In the final part, (c), the focus should shift to the
separate legislative regime provided by s.335 of the Insolvency Act 1986 which
applies when the application for sale is made by Rita as Kevin’s trustee in
bankruptcy (study pack, p.140–144).
use
See the references to the sections of the Guide mentioned in the General remarks
above and the study pack, Chapter 4.
Common errors
• Poor knowledge and understanding of how to apply the relevant legal rules
(such as those relating to the common law methods of severance,
particularly the scope of the first category in Williams v Hensman (1861) by
which a beneficial joint tenant may have acted on his/her own share);
• A lack of awareness of the existence and terms of the Insolvency Act 1986
regulating the applications for sale by a trustee in bankruptcy.
Provide systematic and comprehensive advice about as many possible arguments
for and against Sally’s interests as the law and/or facts make plausible and relevant.
Included unnecessary background explanation of the different characteristics for,
and attributes of, the tenancy in common and the joint tenancy.
10

266 0003 Land law – Zone B
Introduction
In this introductory section you will find general observations on examination
performance, and also an indication of some of the Examiners’ expectations. The
aim is to guide your thinking about how to prepare for a Land law examination. It is
also hoped that these comments will assist you in developing productive techniques
for writing good answers under timed conditions. The remainder of the report is
devoted to feedback and suggestions that focus on each of the eight questions on
the 2011 paper. Although the comments are designed to help you both with the
substance of, and techniques for, approaching each question, they are merely
pointers. Therefore they are not to be taken as being model answers. Similarly,
although the comments may mention specific cases, statutes or other secondary
sources, such references are not intended to be exhaustive or definitive.
You are reminded that there is a wealth of resources you can access to assist you
with your study. Apart from the subject guide and study pack you can find a range
of online VLE resources (such as the Land law online audio presentations) to
support your learning. There are also annual publications of Recent developments,
and Newsletters on current cases and topics of interest, which can help you in
keeping up-to-date with significant judicial and other developments. In addition, it is
recommended that you make a careful study of Chapter 1 of the subject guide, and
the references it contains to other sources. They offer useful ideas on productive
study methods to adopt during the year, and ways of preparing effectively for the
examination. You will also find a helpful Newsletter (October 2007) devoted to the
topic of preparing for the examinations.
Good answers come in many different forms. However, features that might
commonly be found in a good answer to a problem question are: identification of the
relevant legal issues, and accuracy in stating the relevant law and its careful and
considered application to the material facts. If the law is unsettled then it will be
valuable to advise on such alternative possibilities that may lead to different
outcomes on the facts. As far as possible, you should give your answer a
systematic structure, ideally one that reaches a concluded view on each issue
before moving to deal with the next. It may be that an issue in the problem question
will expose a ‘gap’ in the law, or be one where the law is contested (perhaps
because there are conflicting ‘authorities’). This illustrates an opportunity for you to
add a reasoned, critical component to your answer. In doing this you may find that it
will help to refer to secondary sources, such as Law Commission publications or
scholarly books and articles. A good answer to an essay question may contain
many similar features. However, it is essential that you pay close attention to the
precise terms of the essay title, and engage with the language and ideas explicitly
(or implicitly) found in the title. It is also important that you take the utmost care in
expressing your ideas, so that your meaning is plain and unambiguous. Examiners
will undoubtedly be grateful and impressed by attention to detail and by neatness in
presentation because these are attributes that help to show you have put thought
into your answer and the presentation of your work.
Of course, all the advice above assumes that a good answer will show that you
have a sound knowledge of the law. Examiners will always seek to award marks to
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266 0003 Land law
answers that contain accurate and detailed legal information. As in recent years, a
significant number of candidates clearly possessed a reasonable and competent
level of knowledge. All too often however, many candidates failed to capitilise on
their knowledge by applying the material they had memorised to answer the specific
question. You should keep in mind that the examination is designed to test
understanding, not regurgitation. There were also a worrying number of candidates
who did not complete four answers. It is hard to be certain if this is caused by
question-spotting or time mis-management. The examination is designed to test
your understanding of the whole syllabus and requires good management in
dividing the time available between the four answers. Otherwise the effect can be to
lower the (pass) mark achieved or, worse, may result in a failure to reach pass
standard. It is therefore in your best interests that you attempt the required number
of questions.
Question 1
‘The current law on freehold covenants is defective in a number of respects.

The law fails to allow the burden of positive covenants to run with the land,
and its rules relating to the running of the benefit of covenants is unduly
complicated. However, rather than simply addressing these two defects we
need a wide-reaching and fundamental reform of the law on freehold
covenants.’
Discuss.
General remarks
One of the challenges of this question on freehold covenants (subject guide,
Chapter 9) is that the question contains a number of different propositions that
require discussion. These can be used to structure the answer but too many
answers ignored them completely.
use
Rhone v Stephens (1994); Federated Homes Ltd v Mill Lodge Properties Ltd
(1980); Crest Nicholson Residential (South) Ltd v McAllister (2004); ss.78 and 79 of
the Law of Property Act 1925; Law Commission, Easements, Covenants and Profits
à Prendre (Law Com CP No 186, 2008); Cooke [2009] 73 Conv 448.
Common errors
Common errors included writing generalised answers which did not relate material
to any part of the essay question and the inclusion of legal material about leasehold
covenants.
• Select the important terms from the quotation and identify and respond to
the different aspects of the topic that call for discussion.
• Show an understanding of the relevant legal issues and the many
suggestions made for its reform over the years – particularly the most
recent work by the Law Commission.
2

Contained only general information on freehold covenants and paid insufficient
attention to the precise ambit of the question provided by each of the propositions in
the quotation.
Question 2
Eastern County Council owns the registered freehold title to Dalton Manor,
which it occupies until 1996 before it moves its administrative headquarters
to a new site. Dalton Manor is about four hectares of land, comprising a large
building, a cottage and a garage. Eastern County Council now wants to sell
Dalton Manor to raise capital funds. When Oliver, their surveyor, visits the
property he discovers the following:
(a) Jolene is occupying the cottage, and claims to be a squatter. She tells
Oliver that she broke the lock of the front door in January 2000, and then
moved in. She immediately mended the roof and installed a new heating
system. She admits to Oliver that although she has lived in the cottage ever
since, she fully expects that one day Eastern County Council may ask her to
leave, or pay rent.
(b) Tom is making use of the garage. Tom shows Oliver a copy of a
contract for sale (dated 1998) by which Eastern County Council agreed to sell
him the garage. Tom also produces a receipt for the purchase price.
(c) the boundary fence between Dalton Manor and the neighbouring
Willow Farm appears to be in a different place from that shown on the plans
Eastern County Council gives Oliver. Consequently, a small part of land that
belongs to Dalton Manor is on the wrong side of the fence. Oliver speaks to
Pat, the owner of Willow Farm. She explains how, in 1999, she put the fence
up in place of a fire-damaged hedge, erecting it where her lawyer told her the
boundary lay between Willow Farm and Dalton Manor.
Advise Eastern County Council as to whether Jolene, Tom or Pat can make a
successful claim to be registered as proprietors of the parts of Dalton Manor
they occupy.
Indicate briefly how, if at all, your advice about Jolene’s claim would be
different if her legal position was governed by (i) unregistered land law rules;
and (ii) the Land Registration Act 1925.
General remarks
The main focus of this question is on the post-2003 regime on adverse possession
as it applies to freehold title under the Land Registration Act 2002 (subject guide,
11.3). This was a popular question with candidates.
use
Schedule 6 to the Land Registration Act 2002 (LRA 2002); s.75 Land Registration
Act 1925; ss.15 and 17 of the Limitation Act 1980; and JA Pye (Oxford) Ltd v
Graham (2003).
Common errors
Failing to engage with the detailed statutory provisions contained in the LRA 2002,
especially the provisions in Sch 6, para 5.
3
266 0003 Land law

• Identify the (common law) elements of a successful claim to adverse
possession (especially factual possession and intention); and draw on
relevant case law to apply each element of the claim to the facts – most
notably those relating to Jolene’s use of the cottage.
• Consider the potential application of the relevant legislative exceptional
circumstances which indicate if/when a claim might succeed even if
Eastern County Council were to object to Jolene, Tom or Pat’s
applications to the Land Registry.
• Cover the final part of the question by disposing of (i) and (ii) as they apply
to Jolene’s claim – ‘briefly’ as the question indicates.
Included descriptive material that had little or no relevance to the question, such as
adding a lengthy account of the developments in the case law concerning the (now
settled) question of compatibility between the law on adverse possession (before
and since the LRA 2002) and the Human Rights Act 1998.
Question 3
In 2005 Carlos purchased a shop in which to sell carpets. He used his savings
to pay 5% of the purchase price. Although the Big Bank declined to make
Carlos a loan, one of his regular suppliers, Rugland, advanced the balance of
the purchase price, subject to having a registered charge over the title to the
shop. The mortgage was for a period of 15 years. Carlos signed a mortgage
deed, in which he agreed to: (i) pay 10% above the highest rate of interest
charged by the Big Bank; (ii) buy all his supplies of carpet adhesive from
Rugland; and (iii) give Rugland an option, exercisable for the first 10 years of
the loan period, to buy the car park at the rear of the shop.
In 2011 Carlos’s business began to fail and he was therefore unable to make
two monthly repayments to Rugland. Last month he decided to leave the
premises and move abroad. He handed the keys to Rugland. Carlos also
removed a glass display cabinet, which his late father made especially to fit in
the shop, and to which he has a sentimental attachment.
Last month Rugland’s estate agent valued the shop at £400,000. One of
Rugland’s managers, Sandie, has expressed an interest in buying the shop if
she can get it for a good price.
Discuss whether: (a) Carlos has any legal basis to challenge the validity of
the terms of the mortgage; (b) Carlos is entitled to remove the glass display
cabinet; and (c) Rugland may sell the shop to Sandie.
General remarks
There were a number of competent answers to this question. There are a
considerable number of issues that can be legitimately discussed. Part (a) requires
an examination of the different ways in which the mortgagor’s equity of redemption
may be protected by the application of different legal grounds, such as ‘clogs and
fetters’ and unconscionability (subject guide, 10.2; study pack, pp.305–311). This is
a rich area in terms of relevant case law. In part (b) the discussion should be
narrowly trained on the possible application of the legal guidelines in discussing if
the cabinet is a fixture or chattel. Part (c) is concerned with the validity of a
4
proposed exercise of the mortgagee’s power of sale by Rugland in favour of one of

its employees (subject guide, 10.3.1).
use
Among the wealth of relevant case law and statutory provisions that would be
worthwhile to draw on in discussing this question are: Multiservice Bookbinding Ltd
v Marden (1978); Cityland & Property Holdings v Dabrah (1968); Kreglinger v New
Patigonia Meet & Cold Storage Co Ltd (1914); Samuel v Jarrah Timber & Wood
Paving Co Ltd ((1904); Reeve v Lisle (1902); Jones v Morgan (2002); Farrers v
Farrers Ltd (1880);Tse Kwong v Wong Chit Sen (1983); Holland v Hodson (1872);
Elitestone v Morris (1997)); as well as the Law of Property Act 1925, ss.101 and
103.
Common errors
There were no common errors but see below for details of both good and poor
answers.
• Explicitly adopt the structure (a), (b), (c) which is suggested by the question,
without adding a lengthy general introduction.
• Explore as many different causes of action (or alternative arguments) that
may possibly be raised in the advice (for example on the validity of each of
the three terms of the mortgage in (i), (ii), and (iii)) – even if some causes of
action are unlikely to succeed. It can be a worthwhile technique, which
helps to make the answer comprehensive, to raise and dismiss potentially
relevant grounds of legal challenge.
• Be structured so that the more tricky/moot points are dealt with in relative
detail and depth whilst the more straight-forward matters (such as part (b))
are discussed quite briefly.
Question 4
Dot owns the registered freehold title of a large terraced house, Mon Repose,
which is subdivided into four separate flats. She lives in the basement flat.
In 2007 Dot writes to her sister, Ethel, and invites her to move into the first
floor flat free of charge. Ethel moves in. She is grateful for Dot’s offer because
she has been homeless since her husband’s death. Dot’s letter tells her that
she may stay in the flat ‘until I sell Mon Repose’.
In 2008 Dot agrees to lease the ground floor to Grant for five years at £150 per
week. She allows Grant to move in.
In 2010 Dot allows two students, Woody and Terri, to move into the one
bedroom attic flat. Dot, who wrongly believes them to be a couple, gets them
both to sign identical agreements. Woody’s lecture timetable means he signs
his agreement a day later than Terri. Each document is headed: ‘Licence
Agreement’, and provides that Dot will retain a key to the attic flat to allow her
to change the bed linen each Friday between 11.00 and 11.30 am. Under the
terms of the agreement, Woody and Terri also agree to be liable for the whole
of the rent. After a few weeks, Dot starts to leave the fresh bed linen outside
the attic flat door because Woody and Terri like to sleep late and so ask her
not to disturb them.
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266 0003 Land law
What, if any, rights do Ethel, Grant, Woody and Terri have to occupy their
respective flats in Mon Repose?
General remarks
This proved to be a very popular question. It raises a range of issues concerning
the nature of any rights Ethel, Grant, Woody and Terri may have to occupy the
three parts of Dot’s house. This involves discussing different permutations
concerning licences (subject guide, Chapter 7) and leases (subject guide, 6.1–6.3).
As a rule, candidates’ answers dealt with these with a reasonable measure of
success.
use
Thorner v Major (2009); Walsh v Lonsdale (1882); Street v Mountford (1985);
Antionades v Villiers (1990); Prudential Assurance Co Ltd v London Residuary
Body (1993); Ashburn Anstalt v Arnold (1989); Walsh v Lonsdale (1882); s.2 Law of
Property (Miscellaneous Provisions) Act 1989; s.54(2) Law of Property Act 1925.
Common errors
Errors occurred when candidates misinterpreted the facts about Dot’s arrangement
with Grant so as to see it as creating a lease rather than an agreement for a lease.
Maximise the potential to give advice on alternative legal possible solutions
whenever the facts and/or law permit. For instance, if Dot’s letter to Ethel cannot
create a valid lease (because the maximum duration is not stated with sufficient
certainty), the advice might consider what other legal basis Ethel may (or may not)
use to be able to claim property or other rights to occupy the flat (such as via
proprietary estoppel).
Failed either to have a detailed grasp of the relevant principles and case law and/or
to take enough care when applying the law to the specific facts.
Question 5
Ty Du is a small cottage with its own garden, which forms part of Brian’s
extensive estate, Whiteacre. The main farm house belonging to Whiteacre
benefits from its own tarmac drive leading to the main road, but Brian finds it
quicker to cross through Ty Du’s garden whenever he needs to walk to the
main road. Ty Du’s drains connect to the main sewer by running under
Whiteacre, although Ty Du is also served by a cesspit at the bottom of its
garden.
In 2008 Brian grants Rory a three year lease of Ty Du. Rory does not object
when Brian continues to cut through Ty Du’s garden to reach the main road.
Three months later, Brian gives Rory permission to leave his camper van in
one of Whiteacre’s disused stables during the winter months.
In 2011 Brian sells Rory the freehold title of Ty Du. A month later, Brian sells
Whiteacre to Jennifer. Jennifer wants to remove all the underground drains
beneath Whiteacre, and she also asks Rory to stop using the stable belonging
to Whiteacre. Rory is so annoyed at Jennifer’s behaviour that he padlocks his
garden gate to stop her from walking through Ty Du’s garden.
Advise Rory.
6
General remarks
This question calls for advice on the ability to establish an entitlement to three
easements: the right of way through Ty Du; the underground drains; and the right to
park the camper van in the stable (subject guide, 8.1; study pack, pp.237–244) The
advice also requires a consideration of one or more of the available methods of
implied creation (necessity; common intention; the rule in Wheeldon v Burrows and
s.62 of the Law of Property Act 1925). It might, or might not be available to argue
that the three rights have actually been created as easements (subject guide, 8.2.2;
All in all, there are therefore a considerable number of issues about which Rory
needs to be advised. It is important to find ways of avoiding repetition when dealing
with each of the three rights being claimed, and to ensure that due weight is given
to those issues specifically prompted by the facts.
use
Amongst the cases that might be useful are Re Ellenborough Park (1956) and
Moncrieff v Jameson (2007).
Common errors
• Stating the four traditional characteristics identified in Re Ellenborough
without advising on their potential application to the facts.
• Failing to identify correctly which are claims to implied reservation and
which are implied grant.
• Find an efficient order for making the individual points in the advice into a
coherent answer.
• Make the coverage as comprehensive as possible, raising all the potential
arguments for and against available methods of creation.
Were deficient in one or more of the following: limited coverage of the issues, the
detail of the law, or in its application to the facts.
Question 6
In 2004 Adam and Ian decided to buy a small cottage and live together.
Adam’s parents gave them £5,000, which they used to pay the deposit. Adam
took out a mortgage, in his sole name, to cover the balance of the purchase
price; the title to the cottage was also registered in his sole name. Adam also
paid all the mortgage instalments while Ian used the wages from his job as a
hotel chef to pay towards the household energy bills, buy food and meet all
the costs of running the motorcycle they share.
In 2007, when Ian’s father died, he used a small legacy to renovate and refit
the kitchen. He and Adam also invited Ian’s mother, Jean, to come and live in
the cottage with them. Initially, Jean was reluctant to give up the tenancy of
her flat in Dublin, but Adam and Ian assured her that she could think of the
cottage as her home for as long as she liked. Before moving in, Jean paid for
an extension to be built at the back of the cottage.
7
266 0003 Land law
Last year Adam left Ian and moved out of the cottage. Debbie has expressed
an interest in buying the cottage from him.
Advise Debbie (a) whether Ian and Jean can claim any proprietary rights in
the cottage; and (b) how, if she decides to buy the cottage from Adam, she
can ensure she successfully obtains the title free from any such rights.
General remarks
A significant number of candidates attempted this question with markedly differing
degrees of success. This question requires a secure and thorough awareness of
one of land law’s most complex and fast-moving areas of judicial activity regarding
claiming equitable ownership via trusts/proprietary estoppel. Part (b) allows advice
on overreaching and the priority of interests of those in occupation if land is sold.
use
This is an area of land law rich in important case law. Relevant authorities can be
found in the subject guide (5.1–5.3, and 7.3) and also in the 2011 Recent
developments. See also State Bank of India v Sood (1997). Key statutory provisions
are ss.2 and 27(2) of the Law of Property Act 1925; s.116 and Sch 3, para 2, of the
Land Registration Act 2002.
Common errors
• Incomplete consideration of the various facets of the potential for Jean
and Ian to make their respective claims to equitable property interests in
the cottage.
• Failure to advise Debbie on how she might proceed with the sale by
insisting on the appointment of a second trustee so as to successfully
overreach beneficial rights of the occupiers; and the consequences if she
decides to pay the purchase price to Adam.
• Confusing unregistered and registered land ideas of priority.
Provide thorough and carefully argued advice on the various ways in which the
parties may claim the creation of property rights, and on their protection – pleading
alternatives whenever gaps in the law or the facts permit.
Offered narrative accounts of the topic, or relied on sweeping assertions
(unsupported by authority) of the basic principles.
Question 7
Critically assess the view that the provisions in Schedule 3 of the Land
Registration Act 2002 relating to so-called ‘overriding interests’ manage to
strike an appropriate balance between the rights of registered proprietors and
those who hold competing interests over their land.
General remarks
This essay question holds a number of significant challenges. First it requires a
critical assessment. Second, it calls for you to identify what is meant by the phrase
‘appropriate balance’. Third, the question does not concern all the land registration
provisions in the LRA 2002. Rather, it is quite specifically about the unregistered
interests which override that are found in Sch 3, and most particularly on short
8
leases; impliedly created legal easements; and the interest of those who are in
actual occupation of the land (subject guide, 3.3.1; study pack, Chapter 3, 2.7.3–
2.8, pp.62–82)). In most cases this question was not answered well.
use
Apart from Sch 3 of the LRA 2002, there are a range of primary sources covered
and/or mentioned in the subject guide (Chapter 3). In addition cases in the 2011
Recent developments, such as Thompson v Foy (2009) and Link Lending v Bustard
(2010), would have been useful inclusions.
Common errors
• Writing without depth about the regime introduced by the LRA 2002
without focusing on Sch 3.
• Including references to case law and concepts that concern unregistered
land principles (such as land charges and the doctrine of notice).
• Use the introduction to establish the remit and/or the lines of argument to
be explored.
• Ensure that the answer makes a critical assessment of the view
expressed in the question rather than merely describing the provisions in
Sch 3.
Poorer answers tended to be narrative-dominated and overly general in their
treatment of the LRA 2002.
Question 8
In 2006 five brothers and sisters, Alex, Ben, Candice, Danny and Edith, pool
their savings to purchase Seaview, a large house by the sea which they want
to use as a holiday home. They each pay different sums towards the purchase
price of the house, and title to Seaview is conveyed into the names of Alex,
Ben and Candice. The conveyance also states that all five of them own the
house as ‘beneficial joint tenants’. A few months later, Edith divorces her
husband. The others agree to Edith and her daughter, Fiona, moving in and
living in the annex at Seaview.
In 2007 Alex agrees to sell his interest to Candice, but they later decide
against going ahead with the transaction. In 2008, when Ben needs to raise
money for his business, he secures a loan with the Royal Bank by creating a
mortgage over his interest in Seaview. In 2009 Candice telephones the others
in turn to tell them that, as she is re-locating to New York, she wants to sell
her interest in Seaview immediately. Alex says he is interested in buying
Candice’s interest from her but will first need to discuss the proposed price
with his accountant. The next day Alex is killed in a boating accident. In his
will, Alex leaves all his property to Candice.
In 2011 Danny decides he no longer wants to keep Seaview as a holiday

home. Candice agrees to his proposal that the house is sold, but Edith
objects because her doctor has highlighted the therapeutic benefits of living
on the coast to help control Fiona’s asthma.
9
266 0003 Land law
Advise Edith as to: (a) who has beneficial interests in Seaview; and (b) the
likely success of an application for a court order that Seaview is sold.
How, if at all, would your advice on (b) differ if Ben defaults on his loan
repayments and the Royal Bank is making the application for the sale of
Seaview?
General remarks
A considerable number of candidates who answered this question did not seem to
fully appreciate just how many issues on severance (subject guide, 5.3; study pack,
pp.108–113), and the judicial resolution of disputes over the trust of land under the
Trusts of Land and Appointment of Trustees Act 1996 (subject guide, 5.5; study
pack, pp.137–143) are suggested by the facts.
use
Williams v Hensman (1861); Harris v Goddard (1983); Neilson Jones v Fedden
(1975); Burgess v Rawnsley (1975); First National Securities Ltd v Hegerty (1985);
Bank of Ireland v Bell (2001); First National Bank plc v Achampong (2004);
Edwards v Lloyds TSB Bank plc (2005); s.1(6) of the Law of Property Act 1925;
s.34(2) of the Trustee Act 1925 and ss.14 and 15 of the Trusts of Land and
Appointment of Trustees Act 1996 (TOLATA 1996).
Common errors
• Asserting the existence of a beneficial tenancy in common when Seaview
was first acquired in 2006, thereby removing a necessary assumption for
the need to offer advice on severance.
• Stating that a joint tenancy of the legal estate may be severed.
• Demonstrating a lack of accurate knowledge/understanding of the
different ways a joint tenant may ‘act on his/her own share’ so as to sever
his beneficial joint tenancy.
• Failing to consider the significance of Royal Bank’s claim as a secured
creditor as a factor in determining if the court should order the sale of
Seaview under s.15 of TOLATA (study pack, pp.142–143).
• Establish that there are (three) legal, and (five) owners of the beneficial
joint tenancy when Seaview is acquired in 2006, and the existence of a
statutory trust of land.
• Work through the sequence of events between 2007 and 2011
chronologically to determine if and when severance may have occurred by
one or other of the common law methods outlined in Williams v Hensman.
• Identify which of the considerations in s.15 of TOLATA, and the
associated case law, may be relevant, and how they are relevant, in
determining if the court might decide to use its broadly based discretion to
order the sale of Seaview.
Contained insufficient knowledge and understanding of the various legal methods
and case law on severance.
10
LA3003 Land law – Zone A
Introduction
The standard of performance was broadly in line with that achieved in recent years.
Once again it was clear that a number of candidates had memorised legal material.
However, even where this material was relevant there was a huge disparity in the
quality of the way it was used in responding to the question. Some candidates
made use of it in an analytical manner and, where appropriate, demonstrated the
capacity to offer critical assessments of it. However, far too many scripts revealed a
complete lack of understanding either of the legal information stated and/or of the
need to use it to answer the question as set. As has been pointed out in previous
Examination reports the Examination is not designed to test the ability to regurgitate
details about the law. Examiners are looking to assess your understanding of how
the law does or does not work, whether this is shown through the application of law
to a problem scenario, or by your ability to respond to the precise language of an
essay title. It is worth remembering that both problems and essays are invariably
set in the grey areas of the law where alternative arguments exist. These may
sometimes flow from uncertainty in the law relating to, or the facts in, the question.
There is considerable merit in recognising and exploring these ambiguities rather
than glossing over them. It is also valuable if you state any preference you have for
a particular approach or outcome, provided it is reasoned rather than asserted. As
far as problem questions are concerned, you should be wary of inventing new facts,
particularly at the expense of dealing with others that are given. Generally speaking
these will provide more than enough for you to draw upon when framing your
answer. By all means identify any missing information that is material and
significant, for instance if it opens up the possibility of offering different legal advice
on the point. There can be immense value in exhausting plausible avenues in
dispensing advice. This can help in making the answer more comprehensive in its
coverage.
There are a number of other matters which it may help candidates to keep in mind.
It is important to manage your time in the examination efficiently so that you
produce four answers of equal length and calibre. Ensure that you prepare a plan of
your answer before you start writing. Use the planning stage to decide upon a
systematic structure and create an aide memoire whilst you are writing your
answer. It helps if you avoid overly long introductions. With problem questions (but
the same applies to essays) it is important to use the limited time by starting to
respond to the issues right from the outset. Avoid setting down quotations – in
particular do not copy out statutory provisions. These can attract little, if any, credit.
The answer needs to be expressed in your own words. You may, of course,
paraphrase and attribute the views of judges and academics accurately and
incorporate them into your answer. It is essential that you take the utmost care with
your use of English. Poor grammar and spelling can make the meaning of what you
are saying unclear. This may have an adverse impact on the credit your work can
1
LA3003 Land law
be given. Finally, you will impress the Examiners if you take as much care as
possible with the presentation of your work. Try to be as neat as you can and
observe conventions of good legal writing, such as underlining case names
(preferably using a ruler/straight edge). If your handwriting is not easy to read then it
may be advisable to consider writing on alternative lines.

Question 1
Some years ago Joe became too infirm to maintain his garden. He took expert
advice and decided to wait until the property market improved before selling
the land. The garden soon became overgrown with weeds. Neil, Joe’s
neighbour, assumed that the garden was abandoned. He therefore put his
lawnmower in Joe’s shed. The shed stands near the boundary between the
two gardens. Neil moved part of the boundary fence two meters into Joe’s
garden to get access to the shed. That winter Neil repaired the leak in the
shed’s roof to protect his lawnmower.
When Neil died last year, his son, Chris, inherited his house and garden.
Chris assumed that the shed was part of his late father’s garden. He
continued to use it, and installed power and water.
Last month, when Joe decided to sell his garden to Lillian, a property
developer, he discovered Chris’s garden tools in the shed and that part of the
boundary fence had been moved.
Advise Joe as to his legal position in respect of each of the following:
(a) the Land Registration Act 2002; and
(b) on the assumption that title to Joe’s property is unregistered.
General remarks
This proved a popular question on adverse possession, in which part (a) focuses on
the post-2003 regime by which a claim may be made against Joe (subject guide
Section 11.3); and part (b) is concerned by Joe’s position where his title is governed
to principles of unregistered title (subject guide Section 11.1). Some candidates
identified and offered a balanced treatment of a range of relevant issues. There was
also evidence that many candidates who attempted the question had a general
awareness of the way in which the law relating to adverse possession has been
radically altered by the Land Registration Act 2002. There were, however, fewer
answers that contained a secure grasp of the details and specific implication of the
new regime.
use
Section 15 and 17 of the Limitations Act 1980; Schedule 6 of the Land Registration
Act 2002; JA Pye (Oxford) Ltd v Graham (2003); Zarb v Parry (2011) (noted on the
VLE in Recent developments 2012, p.11).
Common errors
Misunderstanding the terms and scope of the three narrow categories in para. 5 of
Schedule 6 of the Land Registration Act 2002 by which a claimant may succeed in
gaining registration of title even in the face of the existing registered proprietor’s
objection.
2

Contain a systematic and detailed indication of the strengths and weaknesses in the
claims to adverse possession that Joe faces in respect of the shed and the
incorrect/altered boundary together with targeted use of the legislative provisions
applicable both where title to the land is registered and unregistered.
Contained insufficiently detailed and specific advice on whether or not the squatter’s
acts, individually or cumulatively, might be regarded as satisfying the central
components of a claim to adverse possession (factual possession and intention to
possess) (subject guide Section 11.1.2).
Gave a detailed description of the procedure laid down by the Land Registration by
which applications may be made for registration in place of the registered proprietor.
Added extraneous material about the compatibility of adverse possession and
human rights principles.
Question 2
When Emily loses her job she decides to use her large town house to
generate some income. Emily allows her recently widowed friend, Audrey, to
live in a large spare room. As it means giving up her home Audrey is anxious
to ensure that the arrangement provides her with as much security as
possible. Emily and Audrey sign a document which states that Audrey can
only be asked to leave in the event that she fails to pay the small monthly
charge for the room.
Emily places a notice on the notice board at the local university advertising
the availability of her ground floor extension. The notice describes the
accommodation (which has sitting room with a double bed and a small
bathroom) as suitable for a young couple. Jim and Beatrice visit Emily
together. Emily wrongly assumes they are a couple. She agrees to let them
move in. Beatrice and Jim sign the identical documents which Emily’s son
(who is a law student) drafts. Each is headed “licence agreement” and
provides that Beatrice and Jim will occupy the extension for two years, and
that Emily will supply them with an evening meal every night. Beatrice and
Jim each pays Emily £300 per month. Without Emily’s knowledge, Beatrice
and Jim replace the double bed with their own single beds. After a week they
tell Emily that she need not cook for them because they prefer to eat in the
College refectory.
Emily allows Frank to use a bill board on the side wall of the house to
advertise his new taxi business. They agree that Frank will pay Emily £50 per
week for six months.
Pam is thinking of buying the house from Emily. She is wondering how
Emily’s arrangements with Audrey, Beatrice and Jim, and Frank will affect her
legal position if she goes ahead with the purchase.
Advise Pam.
General remarks
The main focus in this question is on what is required for the creation of a valid
lease. It also tests understanding of the demarcation between leases and licences.
In Audrey’s case the advice should include a consideration of whether her
agreement with Emily contains a sufficiently certain term (subject guide Section
6.1.3; study pack, pp.136–41). Beatrice and Jim will need to establish that they
3
LA3003 Land law
jointly enjoy exclusive possession (subject guide Section 6.1.4; study pack,
pp.144–49); and advice to Frank might canvass the possibility that he has a
tenancy rather than a licence. As Pam is the recipient of the advice there is also a
need for it to include an indication of the potential enforceability of all the various
rights that exist in the event that she decided to go ahead with the purchase.
use
Street v Mountford (1985); AG Securities v Vaughan; Antoniades v Villiers (1990);
Prudential Assurance Co Ltd v London Residuary Body (1993); Berrisford v
Mexfield Housing Co-operative (2011).
Common errors
Failing to show a precise appreciation of the most recent developments in relation
to the test of certainty of term in the light of the Supreme Court’s ruling in Berrisford
v Mexfield Housing Co-operative (2011).
Overlooking the need to consider the enforceability of any of the property rights that
might be claimed in the event that Pam decides to buy the house.
Carefully consider the legal implications of the detailed facts provided, especially
those concerning the arrangements between Emily on the one hand and Beatrice
and Jim on the other to argue if they create a lease or a licence.
Were limited in their coverage of the different possible legal bases by which the
various claimants may argue they occupy the different parts of Emily’s house.
Question 3
Critically assess the extent to which the current law on both possession and
sale strike an appropriate balance between protecting the respective interests
of the mortgagee and mortgagor.
General remarks
The focus of this mortgages question is the right of possession and remedy of sale
(subject guide Section 10.3; study pack, pp.246–51). Many candidates failed to
follow its instruction to offer a critical assessment of how the law strikes the balance
to which the question refers.
use
Cheltenham and Gloucester v Norgan (1996); Ropalgealach v Barclays Bank
(2000); Horsham Properties v Clarke (2011); Mortgage Services Funding v Palk;
Cuckmere Brick Co v Mutual Finance (1971); ss.91, 101, 103 and 105 of the Law of
Property Act 1925; s.36 of the Administration of Justice Act 1970 (as amended).
Common errors
Dealing with only one of rather than both possession and sale. This drastically
reduced the credit that could be given for the answer.
Introducing extraneous areas of the law of mortgages (such as formalities and the
law that protects the mortgagor’s equity of redemption) – without even attempting to
justify their inclusion.
Ensure that everything said is explicitly addressed to some specific part of the
question.
Include a reasoned and critical component.
4

Presented a general essay that read like a pre-prepared set of notes on the topic
without making any attempt to respond to the specific demands of the question.
Question 4
Shortly after Jules and Patty enter into their civil partnership they purchase a
cottage together. Even though both of them contribute equally towards the
purchase price, title to the cottage is registered in Jules’s sole name. At the
time Patty explains to Jules that she does not want her name to appear on the
land register because she believes that would compromise her privacy. Jules
is understanding and reassures Patty that whatever the land register says the
cottage belongs to them both.
A few years later, Patty’s mother, Bessie, becomes too infirm to live
independently. Jules and Patty ask her to move into the cottage and live with
them. Bessie sells her house and uses the proceeds of sale to pay for an
annex to be built at the back of the cottage into which she moves.
Earlier this year Jules and Patty decide to separate. Before emigrating, Jules
sells the cottage to Ted whilst Patty and Bessie are away visiting family.
When they return to the cottage Ted asks them to leave. Patty and Bessie
refuse.
Advise Ted.
General remarks
A significant number of candidates attempted this question. However, the quality of
the answers varied significantly. Acquisition of beneficial property rights by
constructive trust (and proprietary estoppel) is a fast moving area of judicial activity,
and one which remains in a state of flux (subject guide Section 5.1). Whilst the
advice needs to be rooted in a secure grasp of the central principles and the areas
of uncertainty, the detail must not overwhelm the need for advice to be directed at
giving advice on the specific facts. The advice also has to extend to considering the
dispute of competing priority that arises when Jules sells to Ted (subject guide
Section 5.4; study pack, pp.117–24).
use
There is a wealth of case law that may be relied upon. Perhaps notable candidates
for inclusion are: Lloyds Bank v Rosset (1991); Stack v Dowden (2007); Jones v
Kernott (2010). In addition, when it comes to determining priority answers might
include mention of: Law of Property Act 1925, ss.2 and 27(2); City of London
Building Society v Flegg (1988); Land Registration Act 2002 s.116 and Schedule 3,
para. 2.
Common errors
Failure to consider the consequences of Jules’s failure to satisfy the overreaching
procedure.
Offer advice throughout that exploits relevant differences in judicial and academic
opinions on the unsettled legal issues.
Lacked advice-giving, resorting instead to writing lengthy narrative accounts of the
recent developments of the judicial developments on the constructive trust, often in
a way that suggested rote-learning of a pre-prepared essay.
5
LA3003 Land law
Question 5
Al, Bob, Cynthia, Derek and Ed contribute unequal amounts when they
purchase a large house to live in together. They are all attending the East End
Acting School. Title to the house is registered in Al, Bob, Cynthia and Derek’s
names. They also execute a declaration that they hold the beneficial estate as
joint tenants for all five of them.
Cynthia becomes engaged to one of her tutors, Jasper. As she plans to leave
the house she agrees to sell her interest to Al. However, when Jasper breaks
the engagement, Cynthia decides to stay in the house, and, with Al’s consent,
the sale does not go ahead.
A year or so later Bob runs into debt paying for private singing and dancing
lessons. He takes out a loan with the Bow Bank. The Bank requires Bob to
charge his interest in the house to secure the loan.
Last year, on his way to class, Derek dies in a motorcycle accident. In his will
he leaves all his property to a charity that supports retired actors. A few
weeks later Ed, who is grief-stricken at Derek’s death, emails the others to tell
them that he wants to sell his interest in the house. Network problems delay
the delivery of the email. In the meantime, Ed telephones the others to say
that he has changed his mind.
Three months ago, Bob defaults on his loan repayments. The Bow Bank now
wants the house to be sold but Bob and the other students want to stay in the
house.
Discuss.
General remarks
This problem question concerns co-ownership and trusts of land. In particular it
depends upon considering some of the methods by which a joint tenancy in equity
may be severed (subject guide Section 5.3; study pack, pp.92–9). The answers
were of varying standard. The question covers a combination of points, some
involving the relatively mechanical application of settled principles (such as the
state of the co-ownership when the five initially acquire the house) whilst other
issues are more open (such as the operation of the judicial discretion in s.15 of the
Trust of Land and Appointment of Trustees Act 1996 (TOLATA 1996); subject guide
use
Goodman v Gallant (1986); Williams v Hensman (1861); Burgess v Rawnsley
(1975); Kinch v Bullard (1998); Mortgage Corporation v Shaire (2001); Bank of
Ireland Home Mortgages v Bell (2001); First National Bank v Achampong (2003);
Edwards v Lloyds Bank TSB (2004); s.36(2) LPA 1925; TOLATA 1996, ss.14 and 15.
Common errors
Concluding that when the five acquired the house the co-owners held the beneficial
interests as tenants in common, thereby making a consideration of severance pointless.
Poor understanding of the scope and case law surrounding the operation of
Williams v Hensman methods of severance.
Failing to appreciate that Bob had not been declared bankrupt and that the Bow
Bank was therefore secured creditors for the purposes of s.15 of TOLATA 1996.
6

Move chronologically through the events to provide well-structured advice on the
possibilities that severance of the beneficial joint tenancy may (or may not) have
taken place.
Engage with the wealth of case law to suggest how the court may use its discretion
in applying the criteria in s.15 of TOLATA 1996 either to order a sale or not.
Question 6
In 2007 Abe bought a set of farm buildings which comprise a farmhouse and
three dilapidated barns: Green Barn, Red Barn, and Yellow Barn. Abe lives in
the farmhouse and converts the three barns into houses. In the yard at the
front of the three barns Abe built a heated swimming pool.
In 2008 Abe sold the three barns. Each sale contained the following terms
requiring the purchaser to:
(i) use the land as a private dwelling;
(ii) maintain the section of hedge separating each barn from the farmhouse;
and
(iii) pay a proportion of the annual cost of running the swimming pool.
In 2012, when Abe sold the farmhouse to Bertha, the three barns had already
been bought and sold several times. When she moved in, Bertha discovered
that Carolyn, the owner of Green Barn, was using it to run her publishing
business. Bertha also noticed that the section of hedge lying between the
farmhouse and Red Barn (owned by Dawn) had blown down. She also learnt
that Edwina, who now owns Yellow Barn, has been regularly using the
swimming pool but last year refused to pay towards a contribution of the cost
of heating it.
Advise Bertha.
General remarks
This is a relatively straightforward question on freehold covenants. The central
concern should be on determining whether the benefit and burden of each of the
covenants has passed when ownership of the land changes hands (subject guide
Sections 9.1 and 9.2). This will establish if Bertha is able to sue for breach of covenant.
use
Tulk v Moxhay (1848); Haywood Rhone v Stephens (1994); Haywood v The Brunswick
Permanent Benefit Building Society (1881); Smith and Snipes Hall Farm Ltd v River
Douglas Catchment Board (1949); Federated Homes Ltd v Mill Lodge Properties Ltd
(1980); Crest Nicholson Residential (South) Ltd v McAllister (2004); Roake v Chada
(1984); Halsall v Brizell (1957); Thamesmead Town Ltd v Allotey (1998).
Common errors
Introducing irrelevancies such as discussing rules relating to leasehold covenants.
Apply the principles on how the benefit and burden of the various covenants may or
may not have been transmitted to subsequent owners of the dominant and servient
land in a step-by-step way.
Lacked a logical structure and complete coverage of the issues on transmission of
the benefit and/or burden.
7
LA3003 Land law
Question 7
Oliver is the registered proprietor of two neighbouring farms, Greenacre and
Brownlands. Oliver makes daily use of a track and uses a water pipe under
Brownlands. He leases Greenacre to Ed for two years. He (Oliver) also uses
the track over Greenacre to drive his cows to the milking parlour on
Brownlands and the water pipe that runs under Brownlands to provide water
for his cattle on Greenacre. Oliver uses the water pipe in the summer when
the stream on Greenacre runs dry. After Ed moves into Greenacre, Oliver lets
Ed keep his combine harvester in a barn on Brownlands. When the lease
expires Oliver sells Ed the freehold title to Greenacre.
Advise Oliver whether he may continue to use the track on Greenacre and
whether Ed may use the water pipe and barn on Brownlands.
General remarks
This is a relatively straightforward question on whether or not the various rights
Oliver and Ed wish to use can be easements (subject guide Section 8.1.1; study
pack, pp.203–10) and how they may have been impliedly created between the
parties (subject guide Section 8.2.2; study pack, pp.214–22). A number of answers
fell short in providing well-structured and comprehensive advice on the various
issues surrounding each claim.
use
Law of Property Act 1925, s.62; Wheeldon v Burrows (1879); Nickerson v
Barraclough (1980); Stafford v Lee (1993); Re Ellenborough Park; Moncrieff v
Jamieson (2008); London and Blenheim Estates Ltd v Ladbrooke Retail Parks Ltd
(1993); Batchelor v Marlow (2003); Pwllbach Colliery Ltd v Woodman (1915);
Sovmots v Secretary of State for the Environment (1978); Re Webbs Lease (1951).
Common errors
Lacking an explicit application to the facts of one or more of the four characteristics
that indicate that a right is eligible to be an easement to the facts.
Failing to distinguish accurately between when implied grant rather than implied
reservation applies.
Examine all the legally available methods by which the rights being claimed as an
easement may have been impliedly created, even if in some instances the advice
culminates in dismissing the applicability of a particular method because of the
specific facts in the problem.
Gave incomplete advice by dealing with the Re Ellenborough Park criteria without
mentioning if and how implied creation might have occurred.
Question 8
“The Land Registration Act 2002 provides that virtually all property interests
affecting title to land should be registered and, therefore, will be found on the
land register. The law should go even further so as to provide that all
interests relating to land must be registered.”
Discuss. (Do not consider adverse possession in your answer)
General remarks
This is a demanding question which relatively few candidates attempted. It requires
a sure grasp of a technical area of law that students commonly finding daunting
8
(subject guide Sections 3.2 and 3.3; study pack, pp.48-83). The quotation first invites
discussion of the claim that the legislation provides a virtually comprehensive regime
for registration of property interests. It then suggests that the reach of registration
should be extended. This allows consideration of the nature and justification for some
rights being statutorily accorded overriding status even though they are not protected
on the register. The question also makes it clear that answers should not touch the
subject of adverse possession (which features in an earlier question).
use
Of the various provisions of the Land Registration Act 2002 the following are of
particular relevance: ss.27–29, Schedule 3, paras 1–3. In addition, post-2002 case
law that it may be worthwhile to include on the scope of actual occupation include
Thompson v Foy (2009) and Link Lending v Bustard (2010).
Common errors
Introducing barely relevant material – such as the development of land registration
and/or on the provisions of the Land Registration Act 1925 – without justifying its
inclusion.
Confusing principles and cases of unregistered and registered land law.
Make use of the quotation – its wording and any underlying assumptions – to frame
and direct the answer.
Respond to the second sentence in the quotation that suggests that the law should
provide that all interests relating to land must be registered.
Offered purely superficial and general descriptions of the scheme of land
registration, often in ways that created the impression that candidates were
regurgitating pre-prepared notes.
Include the provisions in the Land Registration Act 2002 relating to adverse
possession.
9
LA3003 Land law – Zone B
Introduction
The standard of performance was broadly in line with that achieved in recent years.
Once again it was clear that a number of candidates had memorised legal material.
However, even where this material was relevant there was a huge disparity in the
quality of the way it was used in responding to the question. Some candidates
made use of it in an analytical manner and, where appropriate, demonstrated the
capacity to offer critical assessments of it. However, far too many scripts revealed a
complete lack of understanding either of the legal information stated and/or of the
need to use it to answer the question as set. As has been pointed out in previous
Examination reports the Examination is not designed to test the ability to regurgitate
details about the law. Examiners are looking to assess your understanding of how
the law does or does not work, whether this is shown through the application of law
to a problem scenario, or by your ability to respond to the precise language of an
essay title. It is worth remembering that both problems and essays are invariably
set in the grey areas of the law where alternative arguments exist. These may
sometimes flow from uncertainty in the law relating to, or the facts in, the question.
There is considerable merit in recognising and exploring these ambiguities rather
than glossing over them. It is also valuable if you state any preference you have for
a particular approach or outcome, provided it is reasoned rather than asserted. As
far as problem questions are concerned, you should be wary of inventing new facts,
particularly at the expense of dealing with others that are given. Generally speaking
these will provide more than enough for you to draw upon when framing your
answer. By all means identify any missing information that is material and significant,
for instance if it opens up the possibility of offering different legal advice on the point.
There can be immense value in exhausting plausible avenues in dispensing advice.
This can help in making the answer more comprehensive in its coverage.
There are a number of other matters which it may help candidates to keep in mind.
It is important to manage your time in the examination efficiently so that you
produce four answers of equal length and calibre. Ensure that you prepare a plan of
your answer before you start writing. Use the planning stage to decide upon a
systematic structure and create an aide memoire whilst you are writing your
answer. It helps if you avoid overly long introductions. With problem questions (but
the same applies to essays) it is important to use the limited time by starting to
respond to the issues right from the outset. Avoid setting down quotations – in
particular do not copy out statutory provisions. These can attract little, if any, credit.
The answer needs to be expressed in your own words. You may, of course,
paraphrase and attribute the views of judges and academics accurately and
incorporate them into your answer. It is essential that you take the utmost care with
your use of English. Poor grammar and spelling can make the meaning of what you
are saying unclear. This may have an adverse impact on the credit your work can
be given. Finally, you will impress the Examiners if you take as much care as
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LA3003 Land law
possible with the presentation of your work. Try to be as neat as you can and
observe conventions of good legal writing, such as underlining case names
(preferably using a ruler/straight edge). If your handwriting is not easy to read then it
may be advisable to consider writing on alternative lines.

Question 1
Early in 1990 Grant entered (via an insecure back door) a boarded-up shop, of
which Stretford Council was the registered proprietor. Stretford Council had
left the shop empty because it did not have enough money to make the shop
viable for it to be leased. Grant has occupied the garage adjacent to the shop
since he agreed to buy it from Stretford Council in 1988. Through an
administrative oversight Stretford Council failed to complete the sale of the
garage to Grant.
By 1998 Grant has completely renovated and re-fitted the shop, which he has
been using to sell spare parts for cars. In 2000 Grant met Max, Stretford
Council’s surveyor, outside the shop. Max admired the work that had been
done on the shop. Grant told him that he would be prepared to pay rent for
the shop if Stretford Council asked him. Max said he would pass the
information on to his boss. Grant heard nothing more from Stretford Council,
until they wrote to him a month ago asking him to leave the shop.
Advise Grant whether he has to leave the shop and the garage.
How would your advice differ if Grant entered the shop in 1999 and, after the
conversation with Max, the letter Stretford Council sent him last month asked
him to leave the shop and the garage?
General remarks
This question on adverse possession (subject guide Section 11.3) proved popular.
It relates to claims that are subject to registered land. The dates and the second
rubric allow the facts to be considered by reference, first, to the framework provided
by the Land Registration Act 1925 (subject guide Section 11.2) and, second, the post-
2003 regime found in the Land Registration Act 2002 (subject guide Section 11.3).
use
Section 15 of the Limitation Act 1980 and s.75 of the Land Registration Act 1925;
Schedule 6 of the Land Registration Act 2002; JA Pye (Oxford) Ltd v Graham (2003).
Common errors
Asserting that the conversation with Max amounts to acknowledgement of Stretford
Council’s title and therefore falls within ss.29 and 30 of the Limitation Act 1980.
Make good use of the legal ideas contained in the wealth of case law to determine if
(and by when) the use Grant makes of the shop satisfies the requirements of factual
possession and intention to possess.
Consider the possible legal effect, if any, in establishing adverse possession of: (a)
Stretford Council’s reason for boarding up the shop; and (b) the conversation
between Grant and Max.
2
Advise on how the uncompleted contract of sale of the garage in1988 may trigger
one of the three exceptions in Schedule 6, para. 5 of the LRA 2002 and so entitle
Grant to succeed in achieving registration of his title.
Provided a limited and generalised statement of adverse possession with far too
little attention to the detailed facts.
Misdiagnosed the question as being about some other aspect of the Land law
syllabus (proprietary estoppel or easements).
Question 2
Critically assess what is meant by “exclusive possession” in determining if
there is a lease. Should exclusive possession be all that the law requires for
the existence of a valid lease?
General remarks
A number of candidates who chose this question seemed to have underestimated
its demands in at least two respects. First, by requiring a critical assessment of
the concept of exclusive possession (subject guide Section 6.1; study pack,
pp.135–54) it needs more than simply narrative; and, second, it calls for a case to
be made for and/or against making exclusive possession the only requirement for a
valid lease to exist. Whilst this second part gives scope to consider other parts of
the topic – certainty, rent and perhaps even formalities – it is crucial that inclusion of
such material is justified by tying whatever is said to the precise terms of the question.
use
Street v Mountford (1985); AG Securities v Vaughan; Antoniades v Villiers (1990);
Prudential Assurance Co Ltd v London Residuary Body (1993); Mikeover v Brady
(1989); Aslan v Murphy (1990) Berrisford v Mexfield Housing Co-operative (2011);
Ashburn Anstalt v Arnold (1988); Bruton v London Quadrant Housing Trust (2000).
Common errors
Failing to address the second part of the question – thereby reducing the maximum
credit available.
Offer a focused and critical assessment of the case law on exclusive possession,
(especially the judicial decisions since Street v Mountford (1985)), paying particular
attention to the challenges in making sense of the concept where there are multi-
occupiers who need to be joint tenants if a lease is to exist.
Consider (a) the role of other requirements – perhaps most notably certainty of term
– in distinguishing leases from other ideas of ownership of land; and (b) the
significance of the idea in Lord Hoffmann’s speech in Bruton that may suggest a
demarcation between proprietary and non-proprietary (or contractual) tenancies.
Offered a scatter-gun essay about all the current legal requirements for a valid
lease (and formalities) without indicating how the material relates to the question.
Question 3
Rita buys a property comprising a newsagents’ shop with living
accommodation at the rear and a car park outside. She uses her savings to
pay the deposit, and raises the balance of the purchase price by obtaining a
loan from the Weatherfield Bank, which has a branch next door to her shop.
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LA3003 Land law
The loan is secured by way of legal mortgage over the property. The
mortgage provides that the Weatherfield Bank:
(i) may, at its absolute discretion, vary the annual interest rate Rita pays
at any time during the twenty year term of the mortgage; and
(ii) has the first right of refusal to buy the car park in the event that Rita
decides to sell it.
Rita’s business starts to lose money when Price Check opens a new
superstore nearby. The Weatherfield Bank writes to Rita telling her that it is
doubling the annual interest rate because it needs to maintain its profitability.
Rita is unable to pay her next mortgage repayment. Meanwhile Price Check
writes to Rita expressing its interest in buying the car park from her. When
she tells Ken, the manager of the Weatherfield Bank, he explains that Latte’s,
a chain of coffee shops has heard about Rita’s business problems. Latte’s is
interested in buying Rita’s shop from the Bank, providing it can be sold to
them privately and for a good price. Rita’s assistant, Norris, is also interested
in buying the shop but only if he can buy it from Rita as a going concern.
Advise Rita as to each of the following:
(a) if she can refuse to pay the increased monthly mortgage payments;
(b) if she can sell the car park to Price Check; and
(c) whether she can prevent the Weatherfield Bank from selling the shop
(with vacant possession) to Latte’s and be able to remain in
possession so that she can sell it to Norris.
General remarks
Perhaps surprisingly this question was attempted by relatively few candidates.
However, there were some quite good answers. These recognised that Rita needs
advice on each of the following: (a) the limited circumstances in which the
mortgagor is protected where interest rates are raised during the mortgage term
(subject guide Section 10.2.3; study pack, pp.450–53); (b) the validity of the
mortgage term giving the Weatherfield Bank a right of pre-emption over the car park
(subject guide Section 10.2); and (c) the competing proposals of the mortgagee and
mortgagor as to possession and sale (subject guide Section 10.3; study pack,
pp.459–63).
use
Paragon Finance v Nash (2001); Paragon Finance v Pender (2005); Cityland and
Property (Holdings) v Dabrah (1968); Multiservice Bookbinding v Marden (1979);
Samuel v Jarrah Timber (1904); Kreglinger v New Patagonia Meat & Cold Storage
Co Ltd (1914); Jones v Morgan (2002); Warnborough Ltd v Garmite Ltd (2003);
Cheltenham and Gloucester v Norgan (1996); Ropalgealach v Barclays Bank
(2000); Horsham Properties v Clarke (2011); Mortgage Services Funding v Palk;
Cheltenham and Gloucester v Krausz (1997); Tse Kwong Lam v Wong Chit Sen
(1983); Cuckmere Brick Co v Mutual Finance (1971); ss.91, 101, 103 and 105 of
the Law of Property Act 1925; s.36 of the Administration of Justice Act 1970 (as
amended).
Common errors
Failing to appreciate that mortgage term (ii) creates a right of pre-emption rather
than an option for the purchase of the car park from the mortgagor.
Adding extraneous narrative material, for instance, on the formalities needed to
create legal and equitable mortgages.
4

Adopt the explicit structure provided by the question and offer advice exclusively on
the three matters in (a), (b) and (c).
Question 4
Ricky and Bianca decide to set up home together in London. Ricky’s father,
Frank, makes a contribution towards the deposit on a house, and Ricky takes
out a mortgage to cover the balance of the purchase price. Ricky is registered
as sole proprietor of the house. He also takes responsibility to repay the
mortgage. Bianca uses her earnings from her part-time job at the local
laundrette to help meet household bills.
Several years later, Ricky moves out of the house shortly after Bianca gives
birth to their daughter, Whitney. He continues to pay the mortgage. Bianca
decides to ask her mother, Carol, to help look after Whitney, who needs
constant care because of a congenital heart condition. Carol gives up her
home in Newcastle and moves in to the house. Feeling guilty, Ricky tells
Carol that she must consider the house as her home for as long as she wants.
Carol later uses some Bingo winnings to pay for new fitted wardrobes in her
bedroom.
Ricky now has a new girlfriend, Janine. He wants them to live in the house. He
therefore writes to Bianca and Carol giving them six weeks to leave. They
refuse, insisting they are entitled to stay in the house.
Advise Ricky who wants to know what, if any, rights in the house Bianca and
Carol may be able to claim.
General remarks
A considerable number of candidates attempted this question. Whilst some answers
were impressive, far too many resorted to producing what appeared to be a pre-
prepared set of notes on the law relating to constructive trusts (subject guide
Section 5.1) and proprietary estoppel (subject guide Section 7.3). Although much of
the information relayed in these answers had some potential relevance it was not
used in a discriminating way; nor was it applied to give reasoned advice on the
potential claims that Carol and Bianca may have to property rights that may entitle
them to resist Ricky’s attempt to evict them.
use
This is an area of land law replete with significant case law that may be of
assistance in offering advice. In particular reference might be made to: Lloyds Bank
v Rosset (1991); Stack v Dowden (2007); and Jones v Kernott (2011).
Common errors
Giving partial and incomplete advice that overlooked possible legal bases of claim
and/or material facts.
Offer structured advice on the strengths and weaknesses in the respective claims
Bianca and Carol may make to establish that each of them has an equitable
property right to the house.
Ensuring that the advice is rooted in the intricacies of the case law, that it
appropriately mobilises the differences in judicial and academic opinion on points.
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LA3003 Land law
Question 5
Al, Bob, Cynthia, Derek and Ed contribute unequal amounts when they
purchase a large house to live in together. They are all attending the East End
Acting School. Title to the house is registered in Al, Bob, Cynthia and Derek’s
names. They also execute a declaration that they hold the beneficial estate as
joint tenants for all five of them.
Cynthia becomes engaged to one of her tutors, Jasper. As she plans to leave
the house she agrees to sell her interest to Al. However, when Jasper breaks
the engagement, Cynthia decides to stay in the house, and, with Al’s consent,
the sale does not go ahead.
A year or so later Bob runs into debt paying for private singing and dancing
lessons. He takes out a loan with the Bow Bank. The Bank requires Bob to
charge his interest in the house to secure the loan.
Last year, on his way to class, Derek dies in a motorcycle accident. In his will
he leaves all his property to a charity that supports retired actors. A few
weeks later Ed, who is grief-stricken at Derek’s death, emails the others to tell
them that he wants to sell his interest in the house. Network problems delay
the delivery of the email. In the meantime, Ed telephones the others to say
that he has changed his mind.
Three months ago, Bob defaults on his loan repayments. The Bow Bank now
wants the house to be sold but Bob and the other students want to stay in the
house.
Discuss.
General remarks
This problem question concerns co-ownership and trusts of land. In particular it
depends upon considering some of the methods by which a joint tenancy in equity
may be severed (subject guide Section 5.3; study pack, pp.92–9). The answers
were of varying standard. The question covers a combination of points, some
involving the relatively mechanical application of settled principles (such as the
state of the co-ownership when the five initially acquire the house) whilst other
issues are more open (such as the operation of the judicial discretion in s.15 of the
Trust of Land and Appointment of Trustees Act 1996 (TOLATA 1996); subject guide
use
Goodman v Gallant (1986); Williams v Hensman (1861); Burgess v Rawnsley
(1975); Kinch v Bullard (1998); Mortgage Corporation v Shaire (2001); Bank of
Ireland Home Mortgages v Bell (2001); First National Bank v Achampong (2003);
Edwards v Lloyds Bank TSB (2004); s.36(2) LPA 1925; TOLATA 1996, ss.14 and 15.
Common errors
Concluding that when the five acquired the house the co-owners held the beneficial
interests as tenants in common, thereby making a consideration of severance pointless.
Poor understanding of the scope and case law surrounding the operation of
Williams v Hensman methods of severance.
Failing to appreciate that Bob had not been declared bankrupt and that the Bow
Bank was therefore secured creditors for the purposes of s.15 of TOLATA 1996.
6

Move chronologically through the events to provide well-structured advice on the
possibilities that severance of the beneficial joint tenancy may (or may not) have
taken place.
Engage with the wealth of case law to suggest how the court may use its discretion
in applying the criteria in s.15 of TOLATA 1996 either to order a sale or not.
Question 6
In 2007 Abe bought a set of farm buildings which comprise a farmhouse and
three dilapidated barns: Green Barn, Red Barn, and Yellow Barn. Abe lives in
the farmhouse and converts the three barns into houses. In the yard at the
front of the three barns Abe built a heated swimming pool.
In 2008 Abe sold the three barns. Each sale contained the following terms
requiring the purchaser to:
(i) use the land as a private dwelling;
(ii) maintain the section of hedge separating each barn from the farmhouse;
and
(iii) pay a proportion of the annual cost of running the swimming pool.
In 2012, when Abe sold the farmhouse to Bertha, the three barns had already
been bought and sold several times. When she moved in, Bertha discovered
that Carolyn, the owner of Green Barn, was using it to run her publishing
business. Bertha also noticed that the section of hedge lying between the
farmhouse and Red Barn (owned by Dawn) had blown down. She also learnt
that Edwina, who now owns Yellow Barn, has been regularly using the
swimming pool but last year refused to pay towards a contribution of the cost
of heating it.
Advise Bertha.
General remarks
This is a relatively straightforward question on freehold covenants. The central
concern should be on determining whether the benefit and burden of each of the
covenants has passed when ownership of the land changes hands (subject guide
Sections 9.1 and 9.2). This will establish if Bertha is able to sue for breach of covenant.
use
Tulk v Moxhay (1848); Haywood Rhone v Stephens (1994); Haywood v The Brunswick
Permanent Benefit Building Society (1881); Smith and Snipes Hall Farm Ltd v River
Douglas Catchment Board (1949); Federated Homes Ltd v Mill Lodge Properties Ltd
(1980); Crest Nicholson Residential (South) Ltd v McAllister (2004); Roake v Chada
(1984); Halsall v Brizell (1957); Thamesmead Town Ltd v Allotey (1998).
Common errors
Introducing irrelevancies such as discussing rules relating to leasehold covenants.
Apply the principles on how the benefit and burden of the various covenants may or
may not have been transmitted to subsequent owners of the dominant and servient
land in a step-by-step way.
Lacked a logical structure and complete coverage of the issues on transmission of
the benefit and/or burden.
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LA3003 Land law
Question 7
Dan leases Ralph a cottage which forms part of Dan’s large country estate.
The cottage has a small garden, and is a short distance from a main road.
There is a track that runs from the cottage across a narrow strip of land
belonging to Dan’s estate to the main road. Dan regularly walks from his
estate through the cottage garden to reach the track. The track is the fastest
route by which Dan can reach the nearest train station, and the only means
for Ralph to get access to the main road. A few weeks after the lease is created,
Dan allows Ralph to store his quad bike in a locked shed on Dan’s land.
When Ralph’s lease expires, he buys the registered freehold title to the
cottage from Dan. Ralph and Dan fall out after a quarrel about the politics of
fox hunting. As a result Dan tells Ralph that he must pay to use that part of
the track that lies on the narrow strip of his land. Dan also insists that Ralph
remove the quad bike from his shed. Ralph therefore decides to lock his
garden gate, preventing Dan from using the cottage garden to reach the track.
Dan seeks advice on his property rights. Advise him.
General remarks
A considerable number of candidates attempted this problem question on
easements. Essentially Dan needs advice on whether his right of way over the
cottage garden and Ralph’s claim to store the quad bike are capable in law of being
easements (subject guide Section 8.1.1; study pack, pp.203–10) and, if so, how
they may have been impliedly granted or reserved (subject guide Section 8.2.2;
use
Law of Property Act 1925, s.62; Wheeldon v Burrows (1879); Nickerson v
Barraclough (1980); Stafford v Lee (1993); Re Ellenborough Park; Moncrieff v
Jamieson (2008); London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
(1993); Batchelor v Marlow (2003); Pwllbach Colliery Ltd v Woodman (1915);
Sovmots v Secretary of State for the Environment (1978); Re Webbs Lease (1951).
Common errors
Lacking an explicit application to the facts of one or more of the four characteristics
that indicate that a right is eligible to be an easement to the facts.
Failing to distinguish accurately between when implied grant rather than implied
reservation applies.
Examine all the legally available methods by which the rights being claimed as an
easement may have been impliedly created, even if in some instances the advice
culminates in dismissing the applicability of a particular method because of the
specific facts in the problem.
Gave incomplete advice by dealing with the Re Ellenborough Park criteria without
mentioning if and how implied creation might have occurred.
Question 8
“The Land Registration Act 2002 provides that virtually all property interests
affecting title to land should be registered and, therefore, will be found on the
land register. The law should go even further so as to provide that all
interests relating to land must be registered.”
8
Discuss. (Do not consider adverse possession in your answer)

General remarks
This is a demanding question which relatively few candidates attempted. It requires
a sure grasp of a technical area of law that students commonly finding daunting
(subject guide Sections 3.2 and 3.3; study pack, pp.48-83). The quotation first invites
discussion of the claim that the legislation provides a virtually comprehensive regime
for registration of property interests. It then suggests that the reach of registration
should be extended. This allows consideration of the nature and justification for some
rights being statutorily accorded overriding status even though they are not protected
on the register. The question also makes it clear that answers should not touch the
subject of adverse possession (which features in an earlier question).
use
Of the various provisions of the Land Registration Act 2002 the following are of
particular relevance: ss.27–29, Schedule 3, paras 1–3. In addition, post-2002 case
law that it may be worthwhile to include on the scope of actual occupation include
Thompson v Foy (2009) and Link Lending v Bustard (2010).
Common errors
Introducing barely relevant material – such as the development of land registration
and/or on the provisions of the Land Registration Act 1925 – without justifying its
inclusion.
Confusing principles and cases of unregistered and registered land law.
Make use of the quotation – its wording and any underlying assumptions – to frame
and direct the answer.
Respond to the second sentence in the quotation that suggests that the law should
provide that all interests relating to land must be registered.
Offered purely superficial and general descriptions of the scheme of land
registration, often in ways that created the impression that candidates were
regurgitating pre-prepared notes.
Include the provisions in the Land Registration Act 2002 relating to adverse
possession.
9
Introduction
Land law is often described as ‘dull and difficult’, but although the common law
property lawyers’ preoccupation with abstractions (e.g. estates and interests, legal
and equitable rights, easements and restrictive covenants, etc.) can often confound
the beginner, there is no justification for such a charge. Land law is, in truth, a
fascinating and intellectually rigorous subject, the study of which will hone your legal
skills and powers of analysis even if you have no intention of ever conveying a
piece of legal estate or granting a demise.
To excel in the subject you need to be able to manipulate concepts and rules that
have been honed over something like a millennium; but candidates often fail to do
themselves justice because of some quite basic errors in technique. Consequently,
before turning to the substance of the examination, I would ask you to consider the
following generic points, as I genuinely believe heeding this advice will help you
better achieve your true potential in this subject.
• Poor handwriting – consider writing on alternate lines if you do not have
neat writing.
• Poor grammar and spelling – language is the lawyer’s tool and unless
you learn to express yourself clearly and unambiguously you are bound to
underachieve. Whether English is, or is not, your first language you can still hone
your skills before the examination by reading articles and cases while listening to
English language broadcasts and recordings on TV, radio and the internet.
• Avoid waffle – too many candidates still seem to think that reciting rote
learnt bookwork in the general area of the question will get them marks – it does
not. Focus on the question asked, and the issues raised, throughout your essay.
• Avoid overlong introductions – start addressing issues from the outset in
both essays and problem questions.
• Avoid repetitive conclusions – there is little point just repeating what you
have said in your essay! Here is your chance to reflect on what went before by
commenting on the law you have applied or the views you have considered. It might
sound counter-intuitive, but say something new in your conclusion – this is an
examination answer, not a scholarly article, and you should not waste time
repeating yourself.
• Never quote chunks out of the statute book – we know you have it with
you in the examination and give no marks for accurate copying!
• Do not simply litter your answer with numerous case names – say just
enough (i.e. a line) about the facts and judgment(s) to illustrate why you think a
case is relevant. This shows the Examiner you have read the case and have an
opinion concerning it and its relevance.
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LA3003 Land law
• Avoid inventing new facts in problems – there is more than enough to

say in the examination already and you should be careful not to add to the
complexity – although that should not preclude you pointing out where a critical fact
has not been revealed and explaining why that is significant.
• Avoid ambivalence – both problems and essays are invariably set in the
grey areas of the law where alternative arguments exist, but that should not prevent
you reaching a conclusion after considering the merits of the various approaches
and explaining why you favour one over the other(s).
• Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, while those problems
multiply where there is more than one judgment in a case. Do not ignore this
complexity but make reference to it. The same is even true of statutes, on occasion,
and likewise juristic writings.
• Make sure you divide up your time sensibly and spend as long on
your last question as on your first – it is much easier to get the first marks on a
question than the last and consequently time spent perfecting your initial answer is
counter-productive if you eat into the time you should be spending on your last
answer.
• Never question the facts in a problem – nor speculate on whether they
can be proved. Think of yourself as a judge sitting in the Court of Appeal writing a
judgment that has come to you in case stated form. You are there to apply the law
to the given facts, willing to reject first instance decisions, overturn Court of Appeal
precedents and, although nominally bound by House of Lords/Supreme Court
decisions, still able to criticise or distinguish them. You can of course say that the
facts are insufficient to come to a final verdict although apply the law to the facts
that you do know.
• Finally, know the law (in so far as it is known), know the arguments (in
so far as there is doubt over what the law is or should be) and know what you
think – make sure you include your own opinion (although not exclusively and after
giving due weight, but not undue deference, to case law and juristic writings).
I hope that gives you a flavour of what we are looking for in the examination. Please
remember your role is to offer a critique of the law you are applying and
commenting upon. We want to see evidence that you have engaged with our
subject; for the academic study of law at a leading institution, such as the University
of London, is not about the simple recitation of knowledge but the application of it,
to both problems and essays. Ultimately, we want you to engage with us in a
debate on the law – what’s good, what’s bad and what’s indifferent.

Question 1
“The Land Registration Act 2002 makes it much more difficult for an owner of
land to lose title to a squatter. Most commentators assume this to be a good
thing but only time will tell whether this actually represents an improvement
on the previous system governing adverse possession of registered titles.”
Discuss.
General remarks
This was an attempt to elicit more than just a ‘write all you know’ answer but very
few candidates took the opportunity to comment on the 2002 reform. Most chose
2
not offer any opinion whatsoever, while those that did seemed to assume that
making it harder to lose title to a squatter was necessarily an improvement. There
is, of course, nothing wrong with being in favour of the reform but what we were
looking for was a critical response (be that positive or negative) analysing the new
system governing adverse possession in registered land. Candidates might have
taken a doctrinal, historical, comparative or practical approach to the issues raised
and could have achieved first class marks by focusing on any one of these strands.
use
Pye v Graham (HL & ECHR), Buckingham Council v Moran, Law Commission
Report No.271.
Common errors
The biggest single failing was candidates’ reluctance to say what they think of the
reform and why. Too many did little more than outline the procedure and seemed to
assume that would be enough.
A good answer to this question wouldo
Briefly outline the major changes to Adverse Possession under the LRA 2002
before considering the fundamental conceptual shift it arguably represents; from a
system of title still rooted in possession to one where entitlement is determined
solely by registration. Better answers might go beyond the doctrinal to consider the
potential costs and benefits of this reform. Will any solicitor advise their client to
make an application knowing that this will set in train a process likely to lead to the
squatters’ removal? Will the reforms suffer the same fate as under the Torrens
system, where an attempt to end Adverse Possession was abandoned after the
registered and de facto title began to decouple absent the remorseless corrective
imperative once provided by s.75 LRA in our jurisdiction. Or, alternatively, is this a
price worth paying to deal with the supposed injustice of squatters acquiring an
impregnable title via a mechanism that, despite the rhetoric of theorists, has little to
do with utilitarian philosophy and/or economic efficiency, but simply provided a
means of curing defects in unregistered title which, as Bingham noted in Pye v
Graham, is simply not required under a system of registration of title.
Simply talked about Adverse Possession in general, not even focusing on the rules
that apply in registered land. Those that did often showed little grasp of the details
of the reform or how, and in what circumstances, it changed the previous regime
governed by s.75 LRA 1925.
Question 2
Alastair was the registered owner of Blackacre, he lived there with his long
term companion, Nick, and they both contributed to the purchase price.
Blackacre is a farm which includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair orally agreed that Stephen could rent White Field for
three years for an annual rent of £1,000.
ii) Alastair granted Dawn, by deed, the right to use a shortcut

across Gold Field to access the road from her house.
3
LA3003 Land law
iii) Alastair agreed, in writing, to give Roger the right to purchase

Blackacre anytime over the next decade.
iv) Nick went to Tibet for an indefinite period.
Last month Alastair sold Blackacre to Iggy who is now the registered owner
of Blackacre. Iggy asked Stephen to leave White Field and refused Dawn
permission to cross Gold Field. Roger now wants to exercise his option. Nick
has now returned to claim what “is rightfully his”. Alastair has disappeared
with the proceeds of the sale. Iggy has asserted that he is not bound by
Roger’s option and owes Nick nothing.
(a) Advise Stephen, Dawn, Roger and Nick.
(b) Explain briefly how, if at all, your advice would differ if all the above
transactions were governed solely by the rules pertaining to
unregistered title.
General remarks
This is a technical question on the mechanisms that operate in registered and
unregistered titles regarding the protection of third party interests.
i) Stephen
Reg Title – Provided this is a legal lease (e.g. fulfils all the requirements of s.54
LPA) this is an overriding interest under Schedule 3 para.1 which binds Iggy.
Unreg Title – Legal rights bind the world.
ii) Dawn
Reg Title – Although granted by deed the easement needs to be substantively
registered to be legal (s.27 LRA 2002) and binding. If not substantively registered it
is an equitable easement, and therefore not an overriding interest under Schedule 3
para.3, but could be protected by means of a notice (s.32 LRA 2002) in the absence
of which Iggy will not be bound (s.29 LRA 2002) provided he is a purchaser for
valuable (excluding nominal and marriage) consideration (s.132 LRA 2002).
Unreg Title – Legal easement under (s.52 LPA) and Iggy therefore bound.
iii) Roger
Reg Title – Provided agreement complies with the requirements of s.2 LP(MP)A
1989, this is an estate contract that can be protected by means of a notice (s.32
LRA 2002) in the absence of which Iggy will not be bound (s.29 LRA 2002) provided
he is a purchaser for other than nominal or marriage consideration (s.132 LRA
2002).
Unreg Title – Protectable as a Class C(iv) Land Charge registered against the name
of Alastair in the absence of which Iggy will not be bound (s.4(6) LCA 1972)
provided he is a purchaser for money or money’s worth (i.e. valuable consideration
including nominal but not marriage Midland Bank v Green).
iv) Nick
Reg Title – Nick has an interest under either a resulting or constructive trust (no
need to differentiate at this stage in your equity career or spend overlong on Stack
et al.) which could have been ‘protected’ by means of a restriction ensuring no
dealings with the registered title in the absence of compliance with the requirements
of overreaching. Presumably no such restriction was in place since Alastair, as sole
4
registered owner, has transferred title to Iggy who will take free of Nick’s interest
unless Nick is in occupation and that occupation is discoverable on a reasonably
careful inspection
Unreg Title – As an over-reachable interest that has not been over-reached the
issue is governed by the equitable doctrine of notice (Kingsnorth v Tizard). It would
be useful to note that in contrast to registered land this will come down to whether
or not Iggy has actual or constructive notice of the interest (rather than the
occupation).
use
LRA 2002 and LCA 1972.
Common errors
A large number of candidates spent most of their answer discussing whether or not
a lease, an easement, an option or an interest behind a trust had been acquired.
However, on the facts as stated that really was not an issue. It is obvious that these
interests (subject to the minor caveats detailed above) have been acquired by the
respective third parties. Thus, what we are looking for is whether the interest
acquired by the third parties will bind the new owner. This is a question about the
mechanisms of land registration and you need to focus your energies accordingly.
Because this is technical problem question candidates can gain real credit if they
take the opportunity to comment on the efficacy or otherwise of the mechanisms
even if tripped up by some of the detail.
Simply went through the requirements of each interest and stated that they had
been fulfilled.
Student extract
‘In answering this question I must first consider the history of land registration
and the various statutory provisions that have moulded the law as we know it
today. This will involve an examination of the Land Registration Acts of 1925
and 2002 along with other relevant legislation. Prior to 1925…’
Comment on extract
Please avoid this type of ‘introduction’ (which often extends for two or three pages).
In a problem question you do not have time to provide a generic introduction
discussing the law’s history or provisions in abstract. You need to start applying the
law to the facts from the outset by swiftly identifying the issues and explaining (in so
far as one can) the law that applies in those circumstances.
Question 3
“Proprietary estoppel and constructive trusts play very similar roles in the
informal acquisition of land law rights.”
Discuss.
General remarks
Candidates were expected to draw on judicial and/or academic views to explore the
essential ingredients of claims that invoke constructive trusts and proprietary
estoppel, their similarities and differences. This could include highlighting the wider
range of discretionary outcomes available to the court in satisfying estoppel claims.
As the question is not confined to the acquisition of beneficial rights, answers could
also engage with a wider range of issues such as a consideration of the uncertainty
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LA3003 Land law
regarding when/if estoppel can be pleaded where a land contract fails to satisfy s.2
of the Law of Property (Miscellaneous Provisions) Act 1989.
use
Yeoman’s Row Management Ltd v Cobbe, Thorner v Majors etc.
Common errors
A tendency for candidates to write all they knew on the topic. Before commencing
your answer you must take the time to plan your essay by harnessing your
knowledge to the question asked. Examiners would far rather read (and give more
marks for!) a slightly shorter but well planned essay than a long and unfocused one.
Reach a conclusion after examining both the similarities and the differences.
Offered rote learnt regurgitation of textbooks with no attempt to address the
question asked.
Question 4
“Although identifying the legal distinction between a lease and a licence is
straight-forward, applying the distinction in practice has proved far more
problematic.”
Discuss.
General remarks
The first clause in the quotation essentially invites a consideration of Lord
Templeman’s approach to (and emphasis upon) exclusive possession in Street v
Mountford. Answers may also wish to identify/explore the exceptional
circumstances recognised in Street, where there may be exclusive possession
without creating a lease. When it comes to consider whether or not applying the
distinction has been problematic answers can include a variety of points – such as
drawing upon post-Street case law concerning joint occupiers, shams, public
lettings and commercial agreements.
use
In addition to Street, a variety of cases can be referred to including Antonadies v
Villiers; AG Securities v Vaughan; Mikeover v Brady; Stribling v Wickham,
Manchester Airport v Dutton, Bruton v London & Quadrant Housing Trust etc.
Common errors
Too many candidates offered unfocussed rote learnt answers in the general area
with little if any attempt to address the specific question asked.
Critically examine the distinction. What are the strengths and weaknesses in placing
so much emphasis on exclusive possession? Does it make sense to ever conceive
of exclusive possession existing in the exceptional situations where Templeman
says it does absent a lease? Would it not be better to describe those situations as
examples of exclusive occupation not possession; or is Templemen suggesting that
in those exceptional situations the licence holder would not have a lease but would
have the exclusive possession necessary to support an action in trespass against
third parties? Of course, does that matter in light of Dutton where the CA held that a
licencee had rights against third parties anyway? Is that a sensible and pragmatic
decision or is the (unintentional but implicit) recognition of a proprietary licence in
that case as nonsensical as the apparently non-proprietary lease in Bruton?
6
Question 5
Sarah was the owner of an area of land which she divided into three plots
known as Plots 1, 2 and 3. Sarah sold Plots 1 and 2 and retained Plot 3.
(a) Sarah sold Plot 1 to Anne who covenanted with the current owners of
Plots 2 and 3 to maintain Plot 1 as “an ornamental garden” and to build and
maintain an “ecological bio-sphere” on the land for the preservation of rare
plant species. It was further stated that “the benefit of the covenant to build
and maintain the bio-sphere is only to pass by express assignment”. Anne is
planning to demolish the bio-sphere and build a power station on Plot 1.
(b) Sarah sold Plot 2 to Fiona who covenanted with the current owners of Plot
1 and 3 to only use the land for residential purposes and build no more than
one house on the plot. Fiona built a house on Plot 2 and sold it to Catriona
without including an express assignment of the benefit of any covenants.
Catriona plans to build two further houses and run her property development
business from Plot 2.
Discuss the private law rights and obligations that Sarah, Anne, Fiona and
Catriona have in respect of the planned changes of use.
General remarks
(a) Anne is the original covenator and thus there is no issue regarding the
burden passing. The only issue is the extent to which she is bound to the original
covenantee Sarah and her successors in title to one of the plots Fiona and
Catriona. Clearly, as original covenatee, Sarah can sue at law (damages) and in
equity (specific performance) and, as she retained Plot 3 will receive more than
simply nominal damages. The benefit of the first covenant appears to have been
annexed to Plot 2 (under Federated Homes) when it was sold to Fiona who could
still sue on it but would presumably only receive nominal damages. The benefit
likewise passes to Catriona who can sue in law or equity. Whether or not the benefit
of the second covenant passed to Fiona under an express assignment it clearly did
not pass to Catriona.
(b) The holders of the benefit, Sarah and Anne, are parties to the covenant
(either inter partes or under s.56 LPA) and thus this part is concerned with the
passing of the burden. Fiona, as original covenantor, remains liable on the original
covenants, however Sarah and Anne will be more interested in whether they have
an action against her successor in title, Catriona. This will, of course, depend on
whether the burden has passed in equity. Candidates should discuss the negative
substance of both covenants and the other requirements (including briefly how
Sarah and Anne might have protected their interests in both registered (a notice)
and unregistered title (D(ii)).
use
Federated Homes, Tulk v Moxhay etc.
Common errors
A failure to show a real understanding of the issues that arise in this context. Many
candidates failed to understand the significance of Anne being the original
covenantor regarding the benefit passing, nor the fact that Sarah and Anne were
parties to the covenant regarding the burden passing.
Identify the particular issues arising and clearly identify who were parties to the
covenant.
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LA3003 Land law

Talked blandly about how the benefit and burden pass generally in this context with
no real appreciation of the particular facts of the question.
Question 6
Andy was the registered owner and occupier of Umbridge Hall, comprising a
house set in extensive grounds and a separate block of stables. In 2007, when
Andy gave up his horse-riding business, he granted Barney a lease of the
stables for a period of five years to run a horse-riding business. A few months
after the start of the lease Andy allowed Barney to fix a sign advertising the
stables to the side wall of the house next to the main road. Andy also told
Barney that he was happy for horses to carry on using a track over the
grounds of Umbridge Hall because it is the quickest route to the local
common where they exercised. Barney was so grateful he let Andy keep his
horse, Dasher, in an empty stable.
In 2012 Andy renewed Barney’s lease for a further five years. Andy has since
sold the freehold of Umbridge Hall to Caroline. Caroline has asked Barney to
remove the unsightly advertising sign from the wall of her house, and to stop
using the track over the grounds of Umbridge Hall because the horses are too
noisy. She has also insisted that when Andy sold Umbridge Hall she had been
told that she would be entitled to use one of the stables to keep her own
horse, Prancer.
Discuss.
General remarks
Broadly speaking, answers should navigate three key issues. First you should
consider if the various claims (Barney’s permission to fix the sign and use the track
and Andy’s use of an empty stable) are capable of satisfying the Re Ellenborough
Park guidelines for eligibility to be an easement. The second set of issues involve
considering which, if any, of the recognised means by which an easement may be
impliedly granted/reserved may or may not apply to the various rights when
Barney’s lease is renewed in 2012. Finally, there is a need to discuss how the sale
of the freehold of Umbridge Hall to Caroline will effect the enforceability of any
easement to which Barney may lay claim – essentially by virtue of Schedule 3 LRA
2002.
use
Re Ellenborough, Moody v Steggles, Hill v Tupper, Wheeldon v Burrows, Batchelor,
Moncrieff, s.62 LPA, Schedule 3 LRA etc.
Common errors
Many candidates failed to see there are three broad issues to consider:
(a) Are the various rights capable of being easements?
(b) If so how, if at all, were they created?
(c) If so how, if at all, do they bind a subsequent owner of the servant
tenement.
Actually sub-divide the answer (by the use of sub-headings) into three sections
each addressing one of the above areas.
8

Failed to look beyond one of the three issues and spent too much time discussing
the generic law and failing to apply their learning to the facts.
Question 7
Ed approached Dainty Dairies after his bank refused to lend him the money
he needed to improve his farm buildings. Dainty Dairies agreed to lend Ed the
money. Dainty Dairies agreed that the money was repayable over ten years
and secured by way of a mortgage over the farm. Their mortgage deed
(i) Ed must sell half of the milk he produces each year to Dainty Dairies
for the duration of the mortgage at the prevailing market price.
(ii) Dainty Dairies has the right to buy three fields at the northern
boundary of the farm if it decides to build a new depot in the locality.
(iii) Ed cannot redeem the mortgage for the first nine years.
In 2013 Ed redeem the mortgage for the first nine ye When Ed missed two
loan repayments, Dainty Dairies wrote to him indicating that Big Bottles plc
had enquired about the possibility of buying Ed’s farm. Ed is keen to be able
to stay in possession to arrange his own sale because he believes this will
maximise his chances of realising the best sale price, which is important to
his plans to buy a smaller farm.
Advise Ed about:
(a) the validity of the terms of the mortgage;
(b) the rival proposals over possession and sale.
General remarks
(a) Advice should consider each of the three terms the mortgage in turn,
drawing on appropriate case law, to test how any of them may or may not fall foul of
equitable principles protecting Ed’s equity of redemption – most notably the doctrine
of clogs and fetters and unconscionability.
(b) Advice on the rival proposals for possession and sale may benefit by
including reference to relevant statutory provisions and associated case law.
use
Norgan, Palk, Cuckmere Brick, s.36 of the AJA 1970; ss.91, 101,103 LPA 1925
Common errors
There was a failure on the part of a sizeable number of candidates to address the
different issues raised by each of the separate clauses you were asked to advise
upon. Please avoid repeating the same case law in an examination script.
Raise the relevant cases on clogs and fetters and unconscionability at the relevant
point in the discussion.
Poor answers to this question…o
Cited lots of cases but made no attempt to explain their particular relevance to the
various points raised in the problem.
Question 8
In 2008 Sam, Tarquin, Ursula and Venus bought Lofty Towers as a place to
live and run a small Bed and Breakfast business. Sam and Tarquin each paid
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LA3003 Land law
35% of the purchase price and Sam 20%, whilst Venus only put in 10% as she
was going to undertake the running of the Bed and Breakfast. The house was
conveyed to the four of them as beneficial joint tenants.
In 2011 Sam went to work abroad. He sent an unsigned written note to Ursula
and Tarquin saying that he wanted Lofty Towers to be sold immediately so
that he could take his share. The note was sent by registered post to Lofty
Towers and was opened by Ursula who immediately threw the note away
without showing it to Tarquin. On emptying the bin Venus discovered the
note and sent an SMS text message to the three remaining owners telling
them that she was hurt not to have been consulted and had consequently
decided to sell her share of Lofty Towers.
In 2012 Ursula died. Her will left all of her property to Tarquin.
You are consulted by Sam. He has returned to the UK and he wants to return
to live in Lofty Towers. However, Tarquin and Venus have told him that they
have agreed to sell Lofty Towers and he will have to find somewhere else to
live.
Advise Sam:
(a) as to the effect of the above events on the legal estate and equitable
interests in Lofty Towers;
(b) whether Tarquin and Venus are entitled to exclude him from living
there and whether there is anything he can do to prevent a sale.
General remarks
(a) The express declaration clearly creates a beneficial joint tenancy despite
unequal contributions. Is Sam’s letter sufficient notice of severance under s.36 and
what are the requirements for serving under s.196? Clearly the lack of signing is not
significant, nor the fact that Tarquin did not get an opportunity to read it (Kinch).
However, what about the failure to address it to Venus? Under s.196(4) there is a
requirement to include the names of those one intends to serve; but s.196(3) is
more Delphic despite joint tenants clearly not coming within the express exemption
from naming under s.196(2). On the assumption that it does not sever, will Venus’s
text message work? In the absence of direct authority one could, I suppose, argue
that this is ‘notice in writing’. However, the inclusion of the indefinite article in the
statute surely ensures this is not ‘a notice in writing’; while the mischief the provision
seeks to address is hardly well served by recognising the (essentially transitory) text
message as a valid notice in this context.
(b) You simply need to apply the relevant statutory provisions in the 1996 Act.
use
ss.36, 196 LPA 1925; ss.12–15 TOLATA 1996, Kinch v Bullard etc.
Common errors
Talking about the belated attempt to sever on Ursula’s death.
Use the statute book to construe the provisions in light of relevant case law.
copied out sections of the statute book (for which you gain absolutely no credit).
10
Introduction
Land law is often described as ‘dull and difficult’, but although the common law
property lawyers’ preoccupation with abstractions (e.g. estates and interests, legal
and equitable rights, easements and restrictive covenants, etc.) can often confound
the beginner, there is no justification for such a charge. Land law is, in truth, a
fascinating and intellectually rigorous subject, the study of which will hone your legal
skills and powers of analysis even if you have no intention of ever conveying a
piece of legal estate or granting a demise.
To excel in the subject you need to be able to manipulate concepts and rules that
have been honed over something like a millennium; but candidates often fail to do
themselves justice because of some quite basic errors in technique. Consequently,
before turning to the substance of the examination, I would ask you to consider the
following generic points, as I genuinely believe heeding this advice will help you
better achieve your true potential in this subject.
• Poor handwriting – consider writing on alternate lines if you do not have
neat writing.
• Poor grammar and spelling – language is the lawyer’s tool and unless
underachieve. Whether English is, or is not, your first language you can still hone
your skills before the examination by reading articles and cases while listening to
English language broadcasts and recordings on TV, radio and the internet.
• Avoid waffle – too many candidates still seem to think that reciting rote
learnt bookwork in the general area of the question will get them marks – it does
not. Focus on the question asked, and the issues raised, throughout your essay.
• Avoid overlong introductions – start addressing issues from the outset in
• Avoid repetitive conclusions – there is little point just repeating what you
have said in your essay! Here is your chance to reflect on what went before by
commenting on the law you have applied or the views you have considered. It might
sound counter-intuitive, but say something new in your conclusion – this is an
examination answer, not a scholarly article, and you should not waste time
repeating yourself.
• Never quote chunks out of the statute book – we know you have it with
you in the examination and give no marks for accurate copying!
• Do not simply litter your answer with numerous case names – say just
enough (i.e. a line) about the facts and judgment(s) to illustrate why you think a
case is relevant. This shows the Examiner you have read the case and have an
opinion concerning it and its relevance.
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LA3003 Land law
• Avoid inventing new facts in problems – there is more than enough to

say in the examination already and you should be careful not to add to the
complexity – although that should not preclude you pointing out where a critical fact
has not been revealed and explaining why that is significant.
• Avoid ambivalence – both problems and essays are invariably set in the
grey areas of the law where alternative arguments exist, but that should not prevent
you reaching a conclusion after considering the merits of the various approaches
and explaining why you favour one over the other(s).
• Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, while those problems
multiply where there is more than one judgment in a case. Do not ignore this
complexity but make reference to it. The same is even true of statutes, on occasion,
and likewise juristic writings.
• Make sure you divide up your time sensibly and spend as long on
your last question as on your first – it is much easier to get the first marks on a
question than the last and consequently time spent perfecting your initial answer is
counter-productive if you eat into the time you should be spending on your last
answer.
• Never question the facts in a problem – nor speculate on whether they
can be proved. Think of yourself as a judge sitting in the Court of Appeal writing a
judgment that has come to you in case stated form. You are there to apply the law
to the given facts, willing to reject first instance decisions, overturn Court of Appeal
precedents and, although nominally bound by House of Lords/Supreme Court
decisions, still able to criticise or distinguish them. You can of course say that the
facts are insufficient to come to a final verdict although apply the law to the facts
that you do know.
• Finally, know the law (in so far as it is known), know the arguments (in
so far as there is doubt over what the law is or should be) and know what you
think – make sure you include your own opinion (although not exclusively and after
giving due weight, but not undue deference, to case law and juristic writings).
I hope that gives you a flavour of what we are looking for in the examination. Please
remember your role is to offer a critique of the law you are applying and
commenting upon. We want to see evidence that you have engaged with our
subject; for the academic study of law at a leading institution, such as the University
of London, is not about the simple recitation of knowledge but the application of it,
to both problems and essays. Ultimately, we want you to engage with us in a
debate on the law – what’s good, what’s bad and what’s indifferent.

Question 1
Numbers 1 and 2 The Copse are adjacent, detached houses. There is a piece
of open ground running across the rear of both properties. The Village
Council owns the registered title to the open ground, which it intends to use
once it has enough money to renovate and extend the neighbouring leisure
centre.
In May 1990 when Abe purchased the registered title to Number 1 he cut back
the vegetation on an overgrown metre-wide strip of land between Numbers 1
2
and 2. He continued to mow it regularly until 1994 when he replaced the grass
with gravel because it required less maintenance.
When Babs moved into Number 2 in September 1990 she noticed Abe mowing
the strip between their two houses and assumed it must belong to Number 1.
Shortly after moving in, Babs also noticed the piece of open ground at the
rear of the properties. As she did not have enough space in her own garden
she decided to use it to grow cabbages. In 1993 Babs erected a small fence to
stop rabbits from eating the cabbages. The following year she installed a
water sprinkler system on the open ground.
In April 2013 Abe decided to build an extension to Number 1. His surveyor
discovered that the gravel strip between Number 1 and 2 actually belonged to
Number 2. Babs wonders whether she has any rights to the piece of open
ground belonging to the Village Council.
(a) Advise Babs.
(b) How, if at all, would your advice differ if the Village Council’s title to
the open ground was unregistered?
General remarks
(a) Abe needs advice upon whether his clearing, four or so years of mowing
and/or his subsequent laying to gravel of the strip between Nos 1 and 2 may satisfy
the constituent elements (factual possession and intention) required to make a
claim either under LRA 1925 or 2002. Answers should cover when Abe’s adverse
possession began, so as to establish which of the two registered land legislative
regimes apply. As far as advice on the LRA 2002 is concerned there is scope to
consider the potential applicability of the boundary exception (Schedule 6, para.5).
Here candidates may wish to refer to recent judicial views in Zarb v Parry and IAM v
Chowdrey.
Advice to Babs about any claim she may make to the Villiage Council’s open
ground will also need to consider if (and from when) the Pye requirements might
have been established by Babs’s different activities on the land. Here candidates
may also wish to explore the significance of the Council’s future plans.
Finally answers should indicate an understanding – which needs not be lengthy – of
ss.15 and 17 of the Limitation Act 1980.
(b) Candidates need to show an understanding of the traditional workings of
adverse possession as it still operates where title is unregistered.
use
s.75 LRA 1925, Sch 6 LRA 2002, Pye, Powell etc.
Common errors
Most candidates failed to consider whether or not the adverse possession began
before or after October 1991. This is important as that determines whether the LRA
1925 or 2002 applies.
Be aware that the issue of when Abe’s adverse possession began is left
deliberately vague and candidates are advised to answer in the alternative (whilst
expressing a view as to when it is most likely that a court would determine that
adverse possession began given the limited facts available.
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LA3003 Land law

Failed to distinguish factual possession (which concentrates on the extent that the
land is used) from intent to possess (which focuses on the adverse possessor’s
state of mind).
Question 2
Alastair was the registered owner of Blackacre, he lived there with his long
term companion, Nick, and they both contributed to the purchase price.
Blackacre is a farm which includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair orally agreed that Stephen could rent White Field for
three years for an annual rent of £1,000.
ii) Alastair granted Dawn, by deed, the right to use a shortcut

iii) Alastair agreed, in writing, to give Roger the right to purchase

Blackacre anytime over the next decade.
iv) Nick went to Tibet for an indefinite period.
Last month Alastair sold Blackacre to Iggy who is now the registered owner
of Blackacre. Iggy asked Stephen to leave White Field and refused Dawn
permission to cross Gold Field. Roger now wants to exercise his option. Nick
has now returned to claim what “is rightfully his”. Alastair has disappeared
with the proceeds of the sale. Iggy has asserted that he is not bound by
Roger’s option and owes Nick nothing.
(a) Advise Stephen, Dawn, Roger and Nick.
(b) Explain briefly how, if at all, your advice would differ if all the above
unregistered title.
General remarks
This is a technical question on the mechanisms that operate in registered and
unregistered titles regarding the protection of third party interests.
i) Stephen
Reg Title – Provided this is a legal lease (e.g. fulfils all the requirements of s.54
LPA) this is an overriding interest under Schedule 3 para.1 which binds Iggy.
Unreg Title – Legal rights bind the world.
ii) Dawn
Reg Title – Although granted by deed the easement needs to be substantively
registered to be legal (s.27 LRA 2002) and binding. If not substantively registered it
is an equitable easement, and therefore not an overriding interest under Schedule 3
para.3, but could be protected by means of a notice (s.32 LRA 2002) in the absence
of which Iggy will not be bound (s.29 LRA 2002) provided he is a purchaser for
valuable (excluding nominal and marriage) consideration (s.132 LRA 2002).
4
Unreg Title – Legal easement under (s.52 LPA) and Iggy therefore bound.
iii) Roger
Reg Title – Provided agreement complies with the requirements of s.2 LP(MP)A
1989, this is an estate contract that can be protected by means of a notice (s.32
LRA 2002) in the absence of which Iggy will not be bound (s.29 LRA 2002) provided
he is a purchaser for other than nominal or marriage consideration (s.132 LRA
2002).
Unreg Title – Protectable as a Class C(iv) Land Charge registered against the name
of Alastair in the absence of which Iggy will not be bound (s.4(6) LCA 1972)
provided he is a purchaser for money or money’s worth (i.e. valuable consideration
including nominal but not marriage Midland Bank v Green).
iv) Nick
Reg Title – Nick has an interest under either a resulting or constructive trust (no
need to differentiate at this stage in your equity career or spend overlong on Stack
et al.) which could have been ‘protected’ by means of a restriction ensuring no
dealings with the registered title in the absence of compliance with the requirements
of overreaching. Presumably no such restriction was in place since Alastair, as sole
registered owner, has transferred title to Iggy who will take free of Nick’s interest
unless Nick is in occupation and that occupation is discoverable on a reasonably
careful inspection
Unreg Title – As an over-reachable interest that has not been over-reached the
issue is governed by the equitable doctrine of notice (Kingsnorth v Tizard). It would
be useful to note that in contrast to registered land this will come down to whether
or not Iggy has actual or constructive notice of the interest (rather than the
occupation).
use
LRA 2002 and LCA 1972.
Common errors
A large number of candidates spent most of their answer discussing whether or not
a lease, an easement, an option or an interest behind a trust had been acquired.
However, on the facts as stated that really was not an issue. It is obvious that these
interests (subject to the minor caveats detailed above) have been acquired by the
respective third parties. Thus, what we are looking for is whether the interest
acquired by the third parties will bind the new owner. This is a question about the
mechanisms of land registration and you need to focus your energies accordingly.
Because this is technical problem question candidates can gain real credit if they
take the opportunity to comment on the efficacy or otherwise of the mechanisms
even if tripped up by some of the detail.
Simply went through the requirements of each interest and stated that they had
been fulfilled.
Student extract
‘In answering this question I must first consider the history of land registration
and the various statutory provisions that have moulded the law as we know it
today. This will involve an examination of the Land Registration Acts of 1925
and 2002 along with other relevant legislation. Prior to 1925…’
5
LA3003 Land law
Comment on extract
Please avoid this type of ‘introduction’ (which often extends for two or three pages).
In a problem question you do not have time to provide a generic introduction
discussing the law’s history or provisions in abstract. You need to start applying the
law to the facts from the outset by swiftly identifying the issues and explaining (in so
far as one can) the law that applies in those circumstances.
Question 3
“Formalities requirements such as those found in s.52 Law of Property Act
1925 and s.2 Law of Property (Miscellaneous Provisions) Act 1989 are little
more than traps to ensnare the unwary.”
Discuss.
General remarks
Candidates should consider what formalities are intended to accomplish including
concentrating the minds of the parties; providing clear evidence and certainty; and,
most importantly, channelling those engaged on a transaction down certain paths to
ensure the correct procedure is used to effect a transfer of title, or whatever else
was intended. Candidates should also note the supposed capacity of formalities to
do injustice and why, in consequence, equity sometimes intervenes in the form of
proprietary estoppel and constructive trust.
Show awareness of the tensions involved in trying to reconcile justice with certainty
and how too much emphasis on the one will necessarily undermine the other.
Others might even challenge whether certainty and justice really are mutually
exclusive!
Simply wrote all they knew about formalities without any attempt to focus on the
question.
Question 4
Rory owned two small converted outbuildings on his farm known as Blue
Cottage and Red Cottage. Because Blue Cottage has a wonderful view he
decided to use it for short-term holiday lets, unlike Red Cottage, which he
planned to rent out for longer periods. He bought a standard form draft
leasehold agreement from the local stationers and crossed out the word
‘Lease’, replacing it with the words ‘Licence Agreement’. He then photocopied
the document and used one copy to rent out Blue Cottage to a company
called Farm Vacations for 12 months, and the other copy to allow his friend
Bethany to occupy Red Cottage “until such time as she no longer requires it”.
Rory assumed that Farm Vacations would arrange a series of short term
holiday lets, so he crossed out the term in their agreement precluding any
subletting without the freeholder’s consent. He also added a clause stating
that he reserved the right to have the premises cleaned every week and to
carry out inspections without notice. After the agreement was duly executed
Samantha persuaded Farm Vacations to grant her a 10 month lease of Blue
Cottage using the same standard form draft leasehold agreement originally
used by Rory but without making any amendments to the original printed
terms.
Rory has now sold his farm to Ewan who seeks your advice as to whether or
not he can evict Bethany and Samantha.
6
General remarks
Red Cottage
When assessing if a lease or a licence has been granted you simply need to
consider Exclusive Possession and Certainty of Term. Despite what many
candidates still say (and appears to be said in Street) rent is not critical (s.205 (xxvii
LPA1925 and Ashburn) although its presence might be probative that a lease was
intended.
In considering exclusive possession you might take the advice of Templeman in
Street v Mountford and consider:
‘the terms of the grant [i.e. the clauses in the document and whether they are
real or sham devices]...
...the purposes of the grant [i.e. what the parties were trying to achieve
ultimately re the use of the land]...
...and the surrounding circumstances [i.e. the context in which it took place
such as family arrangement, business transaction etc.]’
You should of course note that the change of heading will make no substantive
difference and recognise that all the substantive terms in the agreement are drawn
directly from a standard lease. Clearly the fact that Bethany is a friend should be
raised although the formality of a written agreement militates against a finding of no
intent to create legal relations.
In considering certainty of term you should be aware of the hard-line prudential
approach and how Mexfield has cleverly side stepped the rule to turn uncertain
terms into determinable (on the uncertain event occurring) 90-year leases provided,
amongst other things, the grantee, as here (unlike the other lease where certainty of
term is not in doubt) is a human being (as companies cannot hold a lease for life
and thus granting them an uncertain term cannot be brought with s.149(6) LPA
1925 via the approach in Mexfield).
This looks like a 90-year lease determinable at Bethany’s volition. We did not say
whether the agreement was duly executed, nor whether Rory had a registered or
unregistered title, both of which are relevant considerations given the subsequent
sale to Ewan. This is, admittedly, not a question focusing on such issues but it was
hoped that candidates would include some discussion on that point.
Blue Cottage
You need to consider how the further amendments might qualify the verdict reached
above regarding exclusive possession. In our view these are enough to tip the
balance toward a licence, which then allows you to consider Bruton in the context of
the further grant to Samantha. Despite the initial agreement being ‘duly executed’
you should realise (even assuming Bruton to be correctly decided) that neither
Farm Vacations’ licence, nor Samantha’s ‘lease’ will bind Ewan.
use
Prudential v LRB, Berrisford v Mexfield, Bruton v London & Quadrant, ss.149(6),
205 LPA 1925 etc.
Common errors
Candidates often repeated themselves when considering the Blue Cottage. You
need to say something new at this juncture and things that you have already said
regarding the Red Cottage, which are relevant to the Blue Cottage, should be
swiftly and simply noted.
7
LA3003 Land law

Have a clear structure and adopt the Templeman approach to determining the
issues.
Tended to meander around the issues and failed to reach a clear conclusion.
Question 5
“The law relating to the passing of the benefit and burden of non-leasehold
covenants reflect the contractual origins of the doctrine.”
Discuss.
General remarks
Good answers might make the point that the benefit of most contracts is normally
assignable. Thus, in the context of land law, it is hardly surprising that the benefit
can pass at common law for both positive and negative covenants. As a
consequence the original covenator is liable to both the original covenantee and
their successors in title notwithstanding whether the covenant was restrictive or not.
It is, of course, the passing of the burden that breaks new (non-contractual) ground
and candidates should recognise how equity’s intervention is what (ultimately)
turned the restrictive covenant into a property interest. We use the term ‘non-
leasehold’ rather than ‘freehold’ as the latter always seems a misnomer, given that
the rules are as applicable to covenants between neighbouring leaseholders as
they are between freeholders.
use
Tulk v Moxhay etc.
Common errors
Many candidates completely failed to address the contractual origins aspect of the
question or dealt with leasehold covenants.
Go beyond the dry reciting of rules to consider how the contractual origins of non-
leasehold covenants are reflected in those rules.
Wrote all they knew about covenants generally without ever attempting to address
the issues raised.
Question 6
“The scope and operation of the rule in Wheeldon v Burrows is clear and
entirely justifiable. Regrettably, the same cannot be said of s.62 of the Law of
Property Act 1925.”
Discuss.
General remarks
Candidates could choose to take the terms of the quotation apart. They could also
opt to make points that agree and/or dispute the assertions in the two sentences.
Answers may involve a forensic examination of how clear and justifiable the ideas in
Wheeldon v Burrows (in particular necessary for the reasonable enjoyment/
continuous and apparent) are. Answers may wish to include consideration of
whether the requirements are cumulative or alternative. When considering the
second sentence of the quotation answers may want to discuss the (recent) judicial
views that challenge the obiter dicta in Sovmots by suggesting that prior diversity of
8
occupation it is not always a necessary pre-condition for the operation of s.62.

There is also scope to incorporate references to the thinking in Law Com 327.
use
Wheeldon v Burrows, Sovmots v SS Environment, Platt v Crouch, s.62LPA.
Common errors
A failure to offer any form of argument.
Dissect the question and offer a clear and cogent argument one way or other, while
acknowledging arguments that might point to an opposite conclusion.
Wrote all they knew and/or just listed the requirements of each mechanism.
Question 7
Ed approached Dainty Dairies after his bank refused to lend him the money
he needed to improve his farm buildings. Dainty Dairies agreed to lend Ed the
money. Dainty Dairies agreed that the money was repayable over ten years
and secured by way of a mortgage over the farm. Their mortgage deed
(i) Ed must sell half of the milk he produces each year to Dainty Dairies
for the duration of the mortgage at the prevailing market price.
(ii) Dainty Dairies has the right to buy three fields at the northern
boundary of the farm if it decides to build a new depot in the locality.
(iii) Ed cannot redeem the mortgage for the first nine years.
In 2013 Ed redeem the mortgage for the first nine ye When Ed missed two
loan repayments, Dainty Dairies wrote to him indicating that Big Bottles plc
had enquired about the possibility of buying Ed’s farm. Ed is keen to be able
to stay in possession to arrange his own sale because he believes this will
maximise his chances of realising the best sale price, which is important to
his plans to buy a smaller farm.
Advise Ed about:
(a) the validity of the terms of the mortgage;
(b) the rival proposals over possession and sale.
General remarks
(a) Advice should consider each of the three terms the mortgage in turn,
drawing on appropriate case law, to test how any of them may or may not fall foul of
equitable principles protecting Ed’s equity of redemption – most notably the doctrine
of clogs and fetters and unconscionability.
(b) Advice on the rival proposals for possession and sale may benefit by
including reference to relevant statutory provisions and associated case law.
use
Norgan, Palk, Cuckmere Brick, s.36 of the AJA 1970; ss.91, 101,103 LPA 1925
Common errors
There was a failure on the part of a sizeable number of candidates to address the
different issues raised by each of the separate clauses you were asked to advise
upon. Please avoid repeating the same case law in an examination script.
9
LA3003 Land law

Raise the relevant cases on clogs and fetters and unconscionability at the relevant
point in the discussion.
Poor answers to this question…o
Cited lots of cases but made no attempt to explain their particular relevance to the
various points raised in the problem.
Question 8
In 2008 Sam, Tarquin, Ursula and Venus bought Lofty Towers as a place to
live and run a small Bed and Breakfast business. Sam and Tarquin each paid
35% of the purchase price and Sam 20%, whilst Venus only put in 10% as she
was going to undertake the running of the Bed and Breakfast. The house was
conveyed to the four of them as beneficial joint tenants.
In 2011 Sam went to work abroad. He sent an unsigned written note to Ursula
and Tarquin saying that he wanted Lofty Towers to be sold immediately so
that he could take his share. The note was sent by registered post to Lofty
Towers and was opened by Ursula who immediately threw the note away
without showing it to Tarquin. On emptying the bin Venus discovered the
note and sent an SMS text message to the three remaining owners telling
them that she was hurt not to have been consulted and had consequently
decided to sell her share of Lofty Towers.
In 2012 Ursula died. Her will left all of her property to Tarquin.
You are consulted by Sam. He has returned to the UK and he wants to return
to live in Lofty Towers. However, Tarquin and Venus have told him that they
have agreed to sell Lofty Towers and he will have to find somewhere else to
live.
Advise Sam:
(a) as to the effect of the above events on the legal estate and equitable
interests in Lofty Towers;
(b) whether Tarquin and Venus are entitled to exclude him from living
there and whether there is anything he can do to prevent a sale.
General remarks
(a) The express declaration clearly creates a beneficial joint tenancy despite
unequal contributions. Is Sam’s letter sufficient notice of severance under s.36 and
what are the requirements for serving under s.196? Clearly the lack of signing is not
significant, nor the fact that Tarquin did not get an opportunity to read it (Kinch).
However, what about the failure to address it to Venus? Under s.196(4) there is a
requirement to include the names of those one intends to serve; but s.196(3) is
more Delphic despite joint tenants clearly not coming within the express exemption
from naming under s.196(2). On the assumption that it does not sever, will Venus’s
text message work? In the absence of direct authority one could, I suppose, argue
that this is ‘notice in writing’. However, the inclusion of the indefinite article in the
statute surely ensures this is not ‘a notice in writing’; while the mischief the provision
seeks to address is hardly well served by recognising the (essentially transitory) text
message as a valid notice in this context.
(b) You simply need to apply the relevant statutory provisions in the 1996 Act.
use
ss.36, 196 LPA 1925; ss.12–15 TOLATA 1996, Kinch v Bullard etc.
10
Common errors
Talking about the belated attempt to sever on Ursula’s death.
Use the statute book to construe the provisions in light of relevant case law.
copied out sections of the statute book (for which you gain absolutely no credit).
11
THIS PAPER IS NOT TO BE REMOVED FROM THE EXAMINATION HALLS
UNIVERSITY OF LONDON LA3003 October
DIPLOMA IN THE COMMON LAW

LLB
ALL SCHEMES AND ROUTES
BSc DEGREES
Land Law
Wednesday 23 October 2013: 14.30 – 17.45
Candidates will have fifteen minutes during which they may read the paper
and make rough notes ONLY in their answer books. They then have the
remaining THREE HOURS in which to answer the questions.
Candidates should answer FOUR of the following EIGHT questions.
Candidates should answer all parts of a question unless otherwise stated.
© University of London 2013
UL13/0844
Page 1 of 5
1. In 1990 Tim noticed that a disused cottage in large grounds had been
empty for some time and decided to renovate it and make it his home.
He initially changed the locks and boarded up the broken windows. In
1992 he began refurbishing the property and occasionally stayed
overnight when working late on the refurbishment. In 1995 he and
Lisa, a keen gardener, moved in and began landscaping the gardens
and mended the fences to keep their pet sheep from wandering off.
Adam, the registered owner, was hoping to get planning permission to
pull the cottage down and build a sports hall in its place, but until then
had no objection to anyone using the land.
Tim continued to live in the cottage until his death in 2000. In 2013
Adam is contemplating selling the cottage, the value of which has been
increased by the magnificent garden Lisa has created and continues to
maintain. Adam has written to Lisa, stating that until he sells the
cottage he is happy for her to stay there and maintain the garden. Lisa
has rejected the offer.
(a) Advise Lisa.
(b) How, if at all, would the above advice differ if title to the land was
unregistered?
2. “The integrity of a system of registration depends in large measure

upon those purchasing land being able to rely on the fact that
unregistered rights can only gain priority in well-defined
circumstances.”
Do you agree? How effective are the provisions of the Land

Registration Act 2002 in meeting this objective?
3. “Although formalities promote certainty they can also produce

injustice.”
Discuss, with particular reference to proprietary estoppel.
UL13/0844
Page 2 of 5
4. Beatrice agreed that Amy, her niece, would move into a large one-
bedroom flat to which Beatrice owns the registered freehold title. Their
agreement stated that it was to last for seven years “or until Amy
completes her training to be a vet”. Amongst the terms included in
their agreement (which both of them signed) it was agreed that:
“(a) The occupant will not be a lessee of this flat; this agreement is a
mere licence.
(b) The occupant will pay £100 per week by way of occupation
charge.
(c) Beatrice will provide cleaning services every Monday between

8.00am and 10.00am.
(d) Beatrice’s daughter, Jayne, has the right to stay in the flat for the
first weekend of each month.”
After Amy moved into the flat Beatrice provided the cleaning services
for the first few weeks until Amy told her she preferred to do her own
cleaning. Jayne, who had been working abroad, has never stayed at
the weekends. Beatrice has now asked Amy to leave because Jayne
is returning to live in this country and wants to move into the flat.
Advise Amy.
5. In 2003 Jake sold part of his garden to Harold. As part of the sale
Harold covenanted to build only one house on the land and to pay half
the cost of maintaining the shared driveway between the two properties
in good repair. In return, Jake covenanted that he would not allow the
trees in his garden – particularly the fast-growing leylandii – to grow
above two metres in height and that he would not use his property for
business purposes. Harold’s solicitor immediately entered a notice
against the title of Jake’s land. Jake forgot to take a similar step in
respect of the covenants entered into by Harold.
In 2008 Jake sold his property to Imogen and in 2010 Harold sold his
property to Geraldine, informing her of the existence and terms of both
the covenants he had agreed with Jake in 2003.
In 2013 Geraldine obtained planning permission to build a second

house on her land and to construct the alternative access road to reach
her own house. Geraldine has since refused Imogen’s demand to pay
towards maintaining the shared driveway. Imogen subsequently
decided to start a bed and breakfast business and to let the leylandii
grow taller than two metres to give her property greater privacy.
Advise Imogen.
UL13/0844
Page 3 of 5
6. Alicia is the freehold owner of Number 1 Bicester Road, which has a
small workshop at the bottom of the garden. In 2000 she granted a ten
year lease of the workshop to Hamza. A year later Alicia gave Hamza
permission to use her garden path as a shortcut to the road. When the
lease expired in 2010, Alicia granted a new five-year lease of the
workshop, by deed, to Hamza.
Emin is the freeholder owner of Number 2 Bicester Road. In 2007 he

granted permission, by deed, to his neighbour, Conrad, to store his
lawnmower in his (Emin’s) shed.
In 2012 Emin sold part of his garden to Mohamed. Although Emin still
has direct access to the main road via the backdoor of Number 2, he
can only access his front door by crossing land now belonging to
Mohamed (who does not mind since Emin is an old friend).
Tariq is planning to purchase two properties, Numbers 1 and 2 Bicester

Road. He would like advice on the following matters:
(a) The rights that Hamza or Conrad may have and whether these
rights will be binding on him if he decides to purchase the
properties.
(b) Whether he will be able to access the front door of Number 2 by

crossing Mohamed’s land.
7. “Although the mortgagee gains a right to possess ‘before the ink is dry’
it is more accurate to describe possession as a remedy rather than as
a right in this context.”
Discuss.
UL13/0844
Page 4 of 5
8. In 2006 Adam and Eve purchased a house together. Eve contributed
one-third of the purchase price, and Adam paid the balance. Having
taken legal advice the house was conveyed to them as joint tenants at
law and in equity. In 2008 their first son, Cain, was born with a
congenital heart defect. Eve regularly took Cain to the nearby hospital
which had the only specialist facilities in the region to treat children with
Cain’s medical condition.
In April 2013 Adam and Eve had a row after Eve discovered that Adam
has incurred huge gambling debts. Adam left the house.
Advise Eve on each of the following separate matters:
(a) Whether or not she is liable if Adam demands to be

compensated because he no longer lives in the house.
(b) Whether or not she can prevent the house being sold if Adam
wants to do so to raise money to settle his gambling debts.
(c) How her right to live in the home is affected in the event of
Adam being made bankrupt.
(d) How her rights are affected if Adam dies having already agreed
to sell his interest in the house to his mother, Jennifer.
END OF PAPER
UL13/0844
Page 5 of 5

Question 1
A few months ago Jake decided to purchase Whiteacre from Godfrey.
Whiteacre comprised a house, a garage and large field. Jake, who is taking an
internet course on law, decided to do the conveyancing work himself and
moved into Whiteacre after title was registered in his name.
In the last few days Jake has noticed Larry, a local farmer, moving sheep into
the large field. When confronted, Larry explained that in January 2013
Godfrey granted him a seven-year lease of the field.
On the same day Jake saw Mo, his neighbour, letting herself into the garage
and removing a lawnmower. When Jake asked her what she was doing, Mo
told him that she bought her house from Godfrey several years previously.
Mo is not sure but she thinks she may have a written document authorising
her to use the garage to store her lawnmower. She also explained that she
stored her lawnmower in the garage at Whiteacre in exactly the same place
that Godfrey had kept his own lawnmower.
Yesterday, Jake was shocked when Kitty let herself into the house. Kitty,
Godfrey’s former partner, claimed that Whiteacre was still her home. She told
Jake that she had paid part of the purchase price when she and Godfrey
acquired Whiteacre. Kitty had been away for the last three months looking
after her infirm mother who died last week. Before purchasing Whiteacre,
Jake asked Godfrey about the women’s clothing he had seen in the large
walk-in closet leading off the master bedroom in Whiteacre. Godfrey said that
he was storing them for his former partner.
(a) Advise Jake about what rights, if any, Larry, Mo, and Kitty have to
Whiteacre.
(b) Briefly indicate how, if at all, your advice would differ if Jake’s position
was governed solely by principles of unregistered land.
General remarks
In (a) the primary area for advice is whether or not the rights that Larry, Mo and
Kitty are claiming have priority once Jake purchases Whiteacre (s.29 Land
Registration Act (LRS) 2002). There is little basis in the factual material provided to
justify an extensive consideration of whether each of the rights (lease, easement
and beneficial interest) actually exists. Candidates are therefore expected to ensure
that they keep any advice on the respective claims to have a lease (Larry),
easement (Mo) and beneficial interest (Kitty) neatly focused and linked to the
question. With priority in registered land there is scope to focus advice by reference
to the more significant categories of unregistered interests that can override
1
LA3003 Land law
provided for in Schedule 3 LRA 2002. (As the facts do not rule out the possibility
that Jake is the first purchaser of registered title, credit can be given for any
consideration of the comparable terms of Schedule 1.)
Larry’s lease is fairly straightforward. As a grant (i.e. conveyance by deed) not
exceeding seven years it is a legal lease that does not require registration (s.27(2)
LRA 2002) to be legal and its priority rests on an application of Schedule 3, para.1.
Mo’s right is more ambiguous and could conceivably be a lease, licence or an
easement allowing for the possibility of advice in the alternative although the main
focus should be as an easement which is clearly the most likely conclusion. If it
were an expressly created easement it would need to be substantively registered to
be legal (and therefore binding); otherwise it would be an equitable easement (even
if conveyed by deed), which would need to be protected on the register by means of
a notice in order to bind (although one could also explore the limits of Chaudhary v
Yavuz, and ask whether an easement of parking could provide the necessary
occupation required under Schedule 3 para.2). On the facts it is not inconceivable
that it was an impliedly created, rather than expressly granted, legal easement
which therefore requires Schedule 3 para.3 to be considered. A good candidate
would cover that possibility while making clear that Schedule 3 para.3 has no
application to expressly created easements, which are outside the ambit of
Schedule 3 para.3 (which is necessarily only concerned with informal legal
easements as expressly created legal easements are binding by virtue of the
requirement that they must be substantively registered). As far as any beneficial
interest that Kitty may claim by virtue of her financial contribution to the purchase
price, the facts allow for advice to be built up by working systematically through the
terms of Schedule 3 para.2, and associated case law.
The question only requires a brief statement of how the priority of each claimant’s
rights would play out if (subject of course to the suspension of reality) it was still
possible for unregistered land law rules to apply to this entire transaction. This calls
for advice on: how legal rights automatically bind Jake; protection of any equitable
easement Mo may have through the operation of land charge registration; and, in
relation to Kitty, the application of constructive notice because, by paying only
Godfrey, her beneficial interest will not have been overreached.
use
Land Registration Act 2002, Land Charges Act 1972, Law of Property Act 1925.
Common errors
A failure to realise that this is a question on priorities in registered and unregistered
land. You consequently do not need to spend time on whether or not a lease was
granted to Larry or likewise whether the lease was legal or equitable as it says so in
the facts of the question. What you need to determine is whether (and if so how) the
legal lease binds Jake. Similarly, you should not waste time on the details of Kitty’s
beneficial interest. It is obvious her contribution to the purchase price has given her
an interest under either a constructive or resulting trust but the question does not
require you to say anything more on that issue as it is not about quantifying her
interest but determining whether (and how) it binds the new owner Jake. Admittedly
there is room to briefly speculate on the nature of the interest granted to Mo but
only so that you can answer in the alternative as to whether or not that interest (and
on what basis) binds Jake.
show a clear understanding of the mechanisms of both registered and unregistered
title and be prepared to speculate on how the law might develop in the absence of
relevant case law (as discussed above where we briefly speculate about the
2
possible limits of Chaudhary v Yavuz). The subject guide includes a diagram to

show you how both systems work, and remember, even today a property lawyer
needs to know how unregistered conveyancing works as any sale (or other
triggering event) of unregistered title will be conducted under the rules of
unregistered title after which the new owner is required to register the title.
concentrated on the formalities and spent all (or the majority) of the answer trying to
establish whether the particular interests listed had been acquired. This entirely
misses the point of the question and would not achieve even a bare pass mark.
Question 2
‘Ample scope for improvement and simplification.’
How far do you agree with this assessment of (a) the essential legal
characteristics to create a lease; and (b) the legal principles relating to
forfeiture for breach of a leasehold covenant other than one for the payment
of rent?
General remarks
The brief and broad language in the quotation provides the hook for discussion of
the two specified legal areas relating to leases. Candidates may argue for, against
or in both directions provided they ensure that the accent is on the scope for
improvement and simplification of the current legal principles rather than a general
narrative on the elements of a lease (exclusive possession; certainty; rent and
perhaps even formalities) and s.146 of the LPA 1925.
use
Exclusive possession – Street v Mountford, Antoniades v Villiers, AG Securities v
Vaughan, Mikeover v Brady etc.
Term certain – Prudential v LRB, Berrisford v Mexfield.
Rent – Ashburn Anstalt v Arnold.
Forfeiture – s.146 LPA, Billson v Residential Apartments, Expert Clothing v Hillgate,
etc
Common errors
Far too many candidates simply wrote all they knew on the subject and made no
attempt to frame an argument. Many did not even bother to divide their answer
between part (a) and part (b).
provide a reasoned (and separate) argument for both part (a) and part (b).
failed to offer any argument and made no attempt to tell the Examiners how far they
agreed or disagreed with the statement in respect of either part.
Question 3
Adam was the registered owner of a large estate. There was a disused cottage
on the estate that had been empty for some time. In 1990, Tim decided to
renovate the cottage and make it his home. In 1993 he began refurbishing the
property and occasionally stayed overnight when working late on the
refurbishment. In 1995 he and Lisa, a keen gardener, moved in and began
landscaping the gardens and mended the fences to keep their pet chickens
from wandering off. Adam, who was attempting to secure finance to demolish
3
LA3003 Land law
the old cottage and build a sports complex, was aware that Tim and Lisa had
moved in but raised no objection. Tim continued to live in the cottage until his
death in 2000, leaving all his ‘worldly goods’ to Lisa. Last year, after failing to
secure finance, Adam sold the registered title to Saul, who bought the
property after noticing its magnificent gardens. Last week, on legal advice,
Saul wrote to Lisa stating that he was content for her to remain at the
property for the ‘time being’.
(a) Advise Lisa.
(b) How, if at all, would your advice differ in EACH of the following
ALTERNATIVE circumstances:
(i) Adam had expressly told Lisa that he did not mind her and her
boyfriend using the cottage while he was seeking finance;
(ii) Lisa threw Tim out last year after he refused to stop picking
her prize flowers from the garden?
General remarks
In this problem question we have, in addition to the usual categories of comment,
also included specific notes on some of the more pertinent facts to give you an
appreciation of how you might dissect a problem question during the 10/15 mins
you are strongly recommended to spend planning your answer.
 Given that the cottage is disused what amount of physical activity will
amount to factual possession? Is factual possession the same as exclusive
possession? There are various cases to suggest it is (e.g. Powell v
MacFarlane; Bucks CC v Moran, Marsden v Miller) but how then did the
overstaying licensee succeed in the leading House of Lords case Pye v
Graham when, by definition, Saul did not have exclusive possession?
 Clearly, events begin prior to 13 October 1991, but when does adverse
possession begin? Presumably, intention existed from 1990, but when did
factual possession arise?
 It seems physical work does not begin for another two years after 1993
and, even then, there is doubt whether this amounts to factual possession
given the infrequency of Tim’s overnight stays. Thus, it seems most unlikely
that adverse possession began prior to 13 October 1991 and the applicable
law is consequently to be found in Schedule 6, LRA 2002 rather than s.75
LRA 1925.
 Does factual possession begin in 1995? Is the fencing significant or does
the fact that it was to keep the chickens in rather than the world out make it
less so? (Inglewood v Baker) Is there any sense in such a dichotomy or do
fences invariably have a dual purpose? On balance it seems likely that
adverse possession began at this point.
 Was the possession adverse? A failure to object seems unlikely to destroy
the adverse nature of the possession particularly since the passing of the
Limitation Act 1980 Schedule 1 para.8(4).
 If (as seems likely) Lisa has been adversely possessing in her own right
jointly with Tim since 1995 her rights continue under the doctrine of
survivorship irrespective of the terms of Tim’s will. However, could you
argue that on the facts only Tim showed the necessary intent to possess
and thus Lisa was only in factual possession (as Tim’s partner) in which
case the testamentary assignment would be relevant as it would enable her
to take the benefit of his prior adverse possession?
4
Common errors
After various references to the issue in the newsletters it was hoped that candidates
would show some appreciation of the fact that the onset of adverse possession is
often not an easy point to identify and that both factual possession and an intent to
possess are required before the clock begins ticking. Unfortunately, far too many
candidates simply assumed adverse possession began in 1990, for no apparent
reason other than the fact that it is the first date mentioned. For the reasons
detailed in the notes above, it was highly unlikely that adverse possession
commenced before 13 October 1991. However, a candidate who took that line and
applied the old law under LRA 1925 was not overly penalised, although those that
failed to include coverage of the new regime under the LRA 2002 (either exclusively
or in the alternative) were unlikely to be awarded higher than a 2.2 at best.
address many of the subtleties detailed above and offer critical comment on the law
the candidate is applying; whether or not the candidate took a positive, negative or
ambivalent attitude to the changes introduced under LRA 2002.
showed little or no appreciation of the issues raised by the various facts, failed to
note the significance of 13 October 1991, showed little real understanding of how
Schedule 6 LRA 2002 works and were often far too keen to apply proprietary
estoppel in a situation where it was simply not applicable.
Student extract
The question needs an examination on title by adverse possession whether
Tim or Lisa will be able to claim it.
To claim title by adverse possession four requirements must be satisfied:
there must be factual possession; the possession must be open, adverse
and exclusive, the squatter must have intended to possess the land and
lastly it must have been possessed for 12 years prior to the LRA 2002 and
afterwards fulfilled the requirements of LRA 2002.
In the leading case of Bucks CC v Moran it was held that possession is to
be assessed contextually and will vary from terrain to terrain depending
upon the type of land possessed.
There are some cases which illustrate factual possession. Prudentail
Assurance v Waterloo where the refurbishing of a house constituted factual
possession. In Seddon v Smith the mending of fences likewise amounted to
factual possession. It has recently been accepted, in Purbrick v Hackney
LBC that even quite trivial acts can amount to factual possession … [the
essay continues by listing a number of cases where quite trivial acts
amounted to factual possession].
The next requirement is that the possession must be open, adverse and
exclusive as the squatter must be seen to have ‘unfurled his flag’ to show to
the world that he has taken possession … [the essay continues by
considering various cases that demonstrate this point]
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LA3003 Land law
The third requirement is that there must be an intent to possess the land
and exclude all others including those with a better title … [the essay
continues by considering various cases that demonstrate this point]
Lastly the adverse possessor has to fulfill the necessary requirements
depending upon whether the land is unregistered or registered and, if the
latter, whether the inception of adverse possession began before or after 13
October 1991 … [the essay continues by considering the different rules that
apply in each of those three situations].
The alternative circumstances where Lisa would have been told by Adam
that he did not mind them using the land whilst he sought finance would be
regarded as an acknowledgement of title under s.29 and s.30 of the LA
1980 and where Lisa threw Tim out the adverse possession would lapse.
[The essay continues by briefly considering what might arise under the
initial facts]
So if Saul did not evict the squatter by 2005 an unimpeachable right will
have been acquired.
Comment on extract
This is a clear fail. In problem questions candidates are assessed on how well they
apply the law to the facts and candidates should avoid the temptation to write
extensively on the generic law without applying it, from the outset, to the facts
before them. This candidate leaves it far too late to start applying the law and
adopts an illogical structure (by considering the alternative facts before the initial
ones). The belated attempts to apply the law are also wrong and the essay finishes
with a nonsensical statement suggesting that the new owner (Saul) should have
evicted the squatter almost a decade before he had bought the registered title.
Question 4
‘Whilst formalities play an important role in the law of property, they can also
be a source of injustice. Proprietary estoppel is therefore an important
corrective even though it undermines the very rule it is seeking to improve.’
Discuss.
General remarks
This essay is asking candidates to address the seeming paradox inherent in
formalities: while they exist to promote certainty and thereby justice, they can
become a source of injustice, as those least able to protect themselves are the
ones most likely to fall foul of them. Proprietary estoppel can thus be likened to a
pressure valve in the system enabling equity to overcome a failure to adhere to
formalities in certain situations, where penalising a lack of compliance will cause
more injustice than forgiving a failure to comply. However, this creates a real
tension, as reflected in the case law, because if equity is too ready to forgive a
failure to adhere to formalities, this necessarily undermines the formality itself, as no
one would bother complying with formalities if equity stepped in to save the day
whenever that occurred.
use
A wide range of cases could be used in this question although the most obvious
would be those on the application of s.2 LP(MP)A 1989 and the Wills Act 1837. It
would be difficult to do well on this question without including an assessment of the
two contrasting House of Lords cases of Cobbe v Yeoman’s and Thorner v Major.
6
Common errors
A failure to engage with the question or offer any form of thesis.
show how the law in this area is engaged in balancing justice and certainty as
equity seeks both to underpin the import of formalities while also forgiving a failure
to comply with them when certain factors coincide. A good candidate would seek to
explain why the cases in this area are not always consistent; reflecting the tension
inherent in the conflict proprietary estoppel is attempting to address.
simply included everything the candidate had learnt about proprietary estoppel.
Question 5
Tom was the owner of a large estate with extensive grounds and a manor
house called Mallet. Part of that estate, called Velvet Pastures, was used by
Boystoy Ltd as a croquet ground and museum. In 2004, Tom gave Velvet
Pastures to Boystoy to continue using it as a croquet ground and museum.
The conveyance to Boystoy contained the following covenants by which
Boystoy agreed:
(i) not to allow any structure on Velvet Pastures to fall into disrepair;
(ii) to use Velvet Pastures only for croquet matches to be played between
the hours of noon and 3 pm;
(iii) to allow the current owner of Mallet to preside at any awards
ceremony organised by Boystoy and their successors in title.
In 2005 Tom died and left Mallet to his son Harold, who was also a keen
croquet player like his father. Last year Boystoy went into liquidation and
Velvet Pastures was bought by Girlsthing Ltd, which has begun staging
ladies football matches between the hours of 3 pm and 10 pm on Velvet
Pastures. These matches regularly attract a large and often raucous crowd,
quite unlike the sedate audience that previously attended the croquet
tournaments.
At their last board meeting, Girlsthing decided not to repair the museum,
which had been damaged in a recent storm, and announced that the
forthcoming awards ceremony would be a ‘ladies only’ event.
Advise Harold.
General remarks
 Covenant (i): although it takes a negative form this covenant is in substance
positive.
 Covenant (ii): this looks to be negative in substance if interpreted as a
covenant not to build akin to the ornamental gardens clause in Tulk.
Consider whether it might additionally be interpreted as a clause preventing
activity likely to disturb one’s neighbours.
 Covenant (iii): although clearly not personal this does not appear to touch
and concern the land.
 Did the benefits pass to Harold when Tom died?
7
LA3003 Land law
 Did the burdens pass to Girlsthing when they bought Velvet Pastures?
 Are the ladies football matches a breach of covenant (ii)?
 The decision not to repair the museum would appear to be a breach of
covenant (i).
 Is the ‘ladies only’ awards ceremony a planned breach of covenant (iii)?
This is a standard non-leasehold covenants question where candidates must
consider whether the benefit (Tom to Harold) and burden (Boystoy to Girlsthing)
have duly passed in equity and (for the sake of completeness but not absolutely
necessary) at common law.
Common law: Benefit
1. Assignment
There appear to be no express assignments but as none of these benefits are
purely personal all of them could have been passed as choses in action under
s.136 LPA.
2. Annexation
Clearly these are post-1925 covenants and thus s.78 (as interpreted in Federated
Homes) applies. There are thus only two requirements:
1. the covenant must touch and concern Mallet and
2. both Tom and Harold must have a legal estate in Mallet.
The second does not appear to be an issue (although we have not actually been
told that they own legal estates) leaving us only to consider whether each of the
three covenants touch and concern Mallet. The answer seems to be:
Covenant (i): yes
Covenant (ii): probably, if interpreted as a covenant not to build and/or to avoid
activities that disturb the neighbours.
Covenant (iii): no.
The burden of course cannot pass at law and thus we now move to whether or not
the benefit and burden passed in equity (perhaps pausing to consider whether, if
the burden passes in equity, it is sufficient for the benefit to have passed at
common law; which usually does not matter (as equity is only rarely more
restrictive) but is also thought insufficient, in which case the benefit must likewise
run in equity – but see Gray, Elements of land law).
Equity: Burden
There are four requirements for the burden to run in Equity:
1. it must be negative
2. it must accommodate the dominant tenement
3. there must be an intention that it should run
4. it needs to be registered.
On that basis the three covenants all seem to fulfil (3) and we have no information
regarding (4). Turning to whether (1) and (2) are fulfilled in respect of each of the
three covenants:
Covenant (i): fails on (1) but not (2).
8
Covenant (ii): probably succeeds on (2) and definitely (1).

Covenant (iii): definitely fails on (2) and possibly (1).
Thus, the burden in covenant (ii) could well run (provided it was registered) in which
case we need to consider whether the benefit ran in equity (but see discussion
above).
Equity: Benefit
There are two requirements to fulfil for the burden to run in equity: the covenant
must
1. touch and concern Mallet and
2. pass by assignment, annexation or under a scheme of development.
Clearly here the benefit in covenant (ii) will (if interpreted in a way that lets the
burden run) touch and concern the land. There appears to be no possibility of
assignment or a scheme of development but it will pass by means of a statutory
annexation (as considered above at common law), but in equity irrespective of
whether Tom and/or Harold have a legal or an equitable estate in Mallet.
Thus, arguably, the benefit and burden of covenant (ii) have both passed to Harold
and Girlsthing but unlike covenant (i) there is more doubt over whether a breach
has occurred (depending upon how widely covenant (ii) is construed). On covenant
(i) Boystoy would be liable to Harold in damages but as they went into liquidation
that would be of little solace. Finally, no injunctive relief would be available in
respect of covenant (iii) as neither the benefit nor the burden passed to Harold or
Girlsthing.
use
Tulk v Moxhay, Federated Homes, ss.78, 79, 136 LPA 1925.
Common errors
Quite inexplicably, a fair number of candidates addressed this problem on the basis
of leasehold covenants and duly failed the question. Other common errors included
an unwillingness to consider the substance (rather than the form) of the covenants
when assessing whether they were positive or negative, a failure to properly
distinguish benefit and burden and little consideration of the touch and concern
requirement or the importance of registration.
adopt a structured approach making good use of sub-headings and showing a clear
understanding of the technical law. A critique of the law in this area could also be
usefully incorporated; particularly in the final paragraph (which should not be
wasted simply summarising what has already been said).
showed little understanding of the technical aspects of the law and were confused
and chaotic.
Question 6
Last year Max, a property developer, leased the penthouse suite in his block
of flats for a year to Gnash, a famous heavy metal singer. A few months later,
the other residents complained about the large number of fans who gathered
outside the block of flats each day in the hope of seeing Gnash. So Max
agreed that Gnash could park his helicopter on the helipad that Max had
previously installed on the roof of the penthouse for his use when he
9
LA3003 Land law
occupied the penthouse. Max also allowed Gnash to use the private lift that
connected the penthouse to the helipad. In return, the other residents agreed
that Max could use the outside walls of the block of flats to advertise any
rooms he had available to let in the block of flats and his other properties
across London.
Max recently renewed Gnash’s lease for another year before selling the
freehold in the block of flats to Sox, a concert promoter. Sox wants to use the
helipad himself, and as there is only room for one helicopter, he asked Gnash
to stop using it. When Gnash refused, Sox disabled the lift so that it would no
longer serve Gnash’s penthouse. As the block of flats is fully occupied, and
he owns no other properties, he has also changed the advertising sign to
promote the concerts he promotes from his office located within the building.
Advise Gnash.
How, if at all, would your advice differ if Gnash had begun using the helipad
from the outset, having assumed its use was included when he leased the flat
and Max had likewise installed the advertising sign at that time?
General remarks
 The first paragraph focuses on express easements/licences granted a few
months after the initial conveyance. You should not therefore consider
implied easements at this stage.
 Could a helipad ever fulfil the Re Ellenborough conditions? While the first
three requirements would appear to be satisfied the last is more
questionable. Would the parking cases be extended to include helipads or
would the court be likely to hold this a step too far and not capable of
forming the subject matter of a grant (in which case this would appear to be
either a lease or a licence depending, which seems unlikely, upon whether
Gnash had exclusive possession)?
 The right to use the lift connecting the penthouse to the helipad is, of
course, capable of being an easement, but is this not simply a licence
granted to access the helipad and not an easement in its own right?
According to Scott in Moncrieff if the primary right is an easement there is
no reason why the secondary one should not similarly be so. Thus, if the
right to use the helipad was held to be an easement (or by parity of
reasoning a lease) it would seem likely that the means to access it would
constitute an easement too (provided, as here, it fulfils Re Ellenborough):
for otherwise the primary proprietary right could not be exercised following
a transfer of title even though the new owner was bound by it. However, if
the primary right is not proprietary it would surely suggest that the
secondary right should not be so either; for there is little point in making the
secondary right proprietary if the primary right which is accessed by the
secondary right will not survive a transfer of title. Thus, if the right to use the
helipad is deemed to be a licence the same would doubtless be true of the
right to access it.
 By agreeing that Max can use the walls of the block for advertising his flats,
have the other residents granted him an easement of advertising as in
Moody v Steggles or are the facts more akin to those in Hill v Tupper
10
prompting the court to refuse to find an easement? Is the advertisement

benefiting the land Max retains in the block or is it simply an intrinsic part of
the business Max does and therefore not an easement benefitting the land
as such? Once more, if this is not an easement is it a licence or a lease?
 The sale to Sox of course raises a s.62 issue. If the initial grants were only
licences does this further conveyance turn them into easements? Clearly it
cannot do so if the reason they were licences in the first place was because
they did not fulfil the requirements of an easement. However, if they do, but
on the facts they were only initially granted as informal licences, s.62 does
have the capacity to turn them into legal easements.
 If use of the helipad was held incapable of being an easement could the
licence to access it nevertheless be turned into an easement under s.62?
 Although the change of advertising sign more clearly benefits the dominant
tenement, it is not squarely within Moody v Steggles; and, even if it were, it
would not, in the absence of a new grant, turn a licence into an easement.
Candidates were asked to advise Gnash, and thus need to advise whether he has a
right to use the helipad and the stairs, either as a legal interest (LPA s.1(2)(a))
which must be registered under s.27 LRA; or as an interest which overrides the
registered disposition of the block (Schedule 3 paras 1, 3); or as an equitable
interest (LPA s.1(3)) protected by a notice on the land register (LRA s.34). The
same applies to the sign.
Applying the Re Ellenborough tests to the ‘rights’ in question, candidates were
expected to identify that there were dominant and servient tenements; that the
tenements (not the land) were owned by different persons; that the right in question
benefitted the dominant tenement; and whether the right was capable of being the
subject matter of a grant. As candidates have limited words at their disposal it is
perfectly acceptable to minimise what they say when applying the straightforward
elements of Ellenborough to the facts. This allows more time to discuss the more
debatable issues – such as whether the rights accommodate/benefit the use (or
value) of the dominant tenement and whether the right can form the subject matter
of a grant.
As far as the acquisition question is concerned, on the basis that the original
agreement is not by way of deed, it may mean that initially Max and Gnash’s
agreements, made a few months after their 2013 lease, are created either as an
equitable easement or as a licence. This means it is important to turn to consider
the effect of the 2014 lease in terms of its potential for the creation of implied
easements. It is not a necessity as there is clearly another form of (albeit personally
inconvenient) access. It is also difficult to see that Max and Gnash had a common
intention to create a legal right. There was no quasi-easement immediately prior to
the new lease and thus no opportunity to apply a Wheeldon v Burrows analysis.
This leaves s.62 which would only have the effect of ‘upgrading’ the privilege or
advantage into a full-blown easement when the lease is renewed provided the
rights are capable of being easements in the first place.
The staircase is reasonably straightforward. Candidates received credit for
considering whether or not it is ancillary to the use of the helipad (incorporating Lord
Scott’s approach in Moncrieff) and whether s.62 applies to create an implied grant.
As far as the sign is concerned, candidates should identify the possible non-
property benefit of the advertisement (by drawing appropriately on Moody v
Steggles and Hill v Tupper) and discuss proximity.
11
LA3003 Land law
The changed facts give an opportunity to consider whether an implied grant might
have arisen at the outset (particularly under Wheeldon v Burrows) and, even though
the advertising sign includes the walls of other tenements, might have asked
whether an implied reservation arose in respect of G’s tenement (although this
would seem highly unlikely).
Common errors
A sizeable minority of candidates answered this question without ever considering
whether or not an easement arose and consequently received very little credit for
their answers. Another common error was to assume the initial grant of rights could
take effect via the rules pertaining to implied easements even though it was stated
that the title had already been transferred when the rights were expressly created a
few months later.
show that if the rights could be easements (or, in some cases, possibly leases) they
will have to have been created as such (at some point) as between Max and
Gnash. It should then go on to examine whether they continue to be enforceable (or
take priority) when Sox buys the block of flats from Max.
simply tried to answer the entire question solely on the basis of implied grant, even
though this was not relevant to the primary facts; as was obvious from the
alternative facts, where the context in which to consider implied grant was
introduced.
Question 7
‘Although the mortgagee retains the right to possess the mortgaged property,
it is better to describe that right as a remedy.’
Discuss.
General remarks
This was a straightforward question asking candidates to consider how the
mortgagee’s common law right to possession has been so restricted, over time and
by various mechanisms, to the point that it is now normally only exercised
remedially and not as of right.
use
Four Maids v Dudley, Ropaigealach v Barclays Bank, White v City of London
Brewery, Cheltenham & Gloucester BS v Norgan, Quennel v Maltby, Cheltenham &
Gloucester BS v Krauz, Mortgage Services v Palk, Albany Homes v Massey, s.36
AJA 1970, s.8 AJA 1973, ss.91 and 98 LPA 1925.
Common errors
Many candidates failed to examine the full range of mechanisms by which the right
to possession has been restricted to a remedy in practice. Far too many still
misquote Four Maids stating that the right arises ‘as soon as the ink is dry’ when the
whole point of the dicta is to emphasise the fact that the right arises at the outset
‘before the ink is dry’!
explain: why the right to possess arises as an incident of the historic estate vested
in the mortgagee; how equity sought to ensure that the right was not exercised
unless remedy was sought; and how common law/legislative intervention has
increasingly emphasised the remedial quality of the right.
12

simply wrote all they knew about mortgages whether or not it was relevant to the
question.
Student extract
This quotation focuses on the paradox at the heart of the mortgage. As a
security interest which, at least historically, took the form of an outright
transfer of title the mortgagee acquired a right to possess which, in the
absence of default by the mortgagor, he could have no legitimate interest in
exercising. That right was the inevitable consequence of the mortgagee
acquiring the legal estate and the history of the mortgage reveals how
various mechanisms have, at least on a practical level, tended to restrict
possession to something that would only be exercised by the mortgagee
remedially and not as of right. In this essay I will consider how Equity,
Statute and the Judiciary have all sought to achieve this aim even though
there can be no doubt that technically it remains the case that the
mortgagee acquires a right to possess from the off; or in the more colourful,
if now somewhat hackneyed language of Four Maids v Dudley ”before the
ink is dry on the mortgage”.
It then proceeded to examine each of the areas listed before a final paragraph
where it did not summarise what had just been said.
I will finish by reflecting on what might have been if Parliament had
undertaken the reform of the law of mortgages recommended by the Law
Commission some quarter century ago. Rather than continuing to battle
with the contradictions inherent in a remedy, that takes the form of a right,
they suggested a complete overhaul of the land mortgage so that there
would be no right to possess from the outset, but only a remedy to do so on
default. It is sad to note that Parliament did not have the will to stand up to
the vested interests that successfully persuaded her not to undertake the
proposed reform but retain the cumbersome mechanism with which we
continue to struggle.
Comment on extract
This was a clear first. The initial paragraph focuses on the question, succinctly
explains the issue and provides a route map showing what the writer is planning to
argue in the rest of the essay. The final paragraph does not waste time repeating
what has just been said but uses a few precious minutes to say something new.
Question 8
A few years ago Elizabeth, Mary and Sylvia bought a country cottage
together. They were registered as joint tenants and declared in the TR1 form
that they held title in trust for themselves as joint tenants. Elizabeth
contributed 50% of the purchase price, Mary 40%, and Sylvia 10%.
Initially they used the cottage for occasional weekends, but Sylvia soon found
a job nearby and began living in the cottage. Her boyfriend Jim moved in with
her, to help look after their new born baby.
Last year Elizabeth was posted abroad and sold her beneficial interest in the
cottage to Mary.
In January Mary wrote to Sylvia offering to sell her interest in the cottage to
Sylvia. Sylvia replied that she and Jim “would immediately start saving so
that they can take her up on her offer”. In February Mary was made redundant
and wrote to Sylvia saying she needed to sell her share now. Sylvia explained
she would definitely be in a position to buy out Mary’s share in a couple of
13
LA3003 Land law
years but Mary has explained she cannot wait that long and is insisting,
despite Sylvia’s objections, that the cottage be sold immediately.
(a) Advise Sylvia.
(b) If the cottage was sold now, how would the proceeds of sale be
divided?
(c) How, if at all, would your advice in (a) differ in EACH of the following
(i) The property was conveyed into their joint names but no
reference to any trust was made in the conveyance;
(ii) Elizabeth, Mary and Sylvia were business partners and no
(iii) Mary was adjudged bankrupt;
(iv) Sylvia died yesterday leaving her entire estate to Jim?
General remarks
 The declaration in the TR1 form is conclusive as to the beneficial interest
being held jointly and thus the individual percentage contributions are an
irrelevance.
 Was use ‘for occasional weekends’ the original purpose?
 Did the purpose change from holiday home to family home when Sylvia
began living in the cottage and Jim and their baby moved in?
 Elizabeth has clearly acted upon her share by the irrevocable action of
selling it, and thus severs her interest, which means that Mary is a tenant in
common of one third and that her and Sylvia jointly own two thirds of the
beneficial interest.
 Does Mary’s letter to Sylvia in January count as a written severance under
s.36(2) LPA 1925? Seems unlikely as it does not manifest an immediate
intention to sever.
 Sylvia’s remark about saving up seems to confirm the lack of immediacy
regarding Mary’s plan.
 Does Mary’s letter in February comply with s.36(2) LPA 1925?
(a) Either Sylvia or Mary could apply to court under s.14 TOLATA and under
s.15 the initial purpose [s.15(a)], changed purpose [s.15(b)] and the welfare
of the child [s.15(c)] would all be relevant considerations to which the court
is required to have regard. Whether a postponement of sale would be
ordered is a moot point although Sylvia is in a better position than she
would otherwise be in the absence of a secured creditor petitioning for a
sale.
(b) One third to Sylvia and two thirds to Mary (please see bullet points above
for an explanation as to why).
(c) (i) According to Stack v Dowden, in a domestic context, equity follows the
law when the legal title is in joint names (absent requisite evidence to the
14
contrary) rather than adopting a resulting trust based upon their

proportionate contributions.
(ii) Clearly, in this situation, they would be tenants in common on a
presumed resulting trust in proportion to their contributions.
(iii) Mary’s trustee in bankruptcy would proceed under the more favourable
s.335A IA 1986 and, in the absence of exceptional circumstances, would
prevail after, at most, a 12-month delay.
(iv) Did Mary’s final note sever by written notice? In which case Sylvia was
a tenant in common of one third when she died and could indeed leave that
share to Jim.
use
Williams v Hensman, Re Drapers Conveyance, Burgess v Rawnsley, Nielson Jones
v Fedden, Davis v Smith, Re Palmer, Stack v Dowden, TOLATA 1996, s.36(2) LPA
1925, s.335A IA 1986.
Common errors
A majority of candidates found this a surprisingly difficult question. Errors included:
failing to note the significance of the express declaration concerning the beneficial
interest, not considering either or both the initial and subsequent purpose for which
the house was held; awarding shares after severance by reference to the now
irrelevant percentages the parties contributed to the purchase when any severance
of a joint tenancy will always be on the basis of equal division among the current co-
owners, ignoring the immediacy requirement in s.36(2) LPA, ignoring Stack v
Dowden regarding the presumption applicable to legal joint tenancies of residential
property, failing to apply the contrary presumption relating to business partners;
failing to apply s.335A IA 1986 in the context of bankruptcy; applying the right of
survivorship to a tenant in common.
adopt the structure given by the question and answer each part in turn, giving
approximately equal treatment to the law of severance and the workings of
TOLATA. Diagrams may be used (although they are by no means essential) but
only if they assist in the explanation and candidates are strongly advised to adopt
the form of diagram used in the subject guide or in Gray’s Elements of land law.
failed to use the structure dictated by the question and gave composite answers
that (unsuccessfully) sought to answer more than one part simultaneously; sought
to award shares (either from the outset or subsequently) by reference to the initial
contribution to purchase price; provided diagrams of doubtful utility and often
claimed that some (and sometimes all) the alternative facts were of no significance
(it is, by the way, highly likely that the alternative facts will be insignificant in a
problem question).
15

Question 1
‘It is never easy for the law to strike the correct balance between simple, clear
formality requirements and the desire to give effect to the intentions of the
parties despite the absence of formalities. This much is evident in respect of
the way proprietary estoppel may operate to create beneficial interests when
no valid conveyance or land contract exists.’
Discuss.
General remarks
There are a variety of legitimate ways of responding to the terms of this testing
quotation. Essentially it is looking for a discussion of land law’s difficulty in
balancing formality requirements with the aspiration of allowing the creation and
operation of rights informally.
use
Cobbe v Yeomans, Thorner v Major, Kinane v Alimamy Mackie-Conteh, s.9 WA
1837, s.52, 53 LPA 1925, s.2 LP(MP)A 1989, s.116 LRA 2002.
Common errors
Candidates frequently failed to restrict the answer to the specific issues raised in
the quotation. Such questions are not an invitation to write all you know about the
general area of proprietary estoppel. A sizeable minority of candidates appeared to
offer rote-learnt answers of dubious relevance that inevitably received a low mark
as, being prepared in advance, they could not expect to address the specific issues
raised in the question.
The question was not asking for a wide-ranging or abstract discussion and a good
answer consequently tended to target the two specific issues mentioned in the
second part of the quotation: proprietary estoppel’s role in creating beneficial
interests; and also the formality requirements about land contracts and transfers of
title. There is scope for answers to capitalise on a diverse range of judicial and
academic views and a good candidate would offer a focused but wide-ranging
discussion that captured this debate.
Unfortunately a sizeable number of candidates were indiscriminate in their selection
of material and/or partially or wholly ignored the precise wording and ideas
contained in the quotation.
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LA3003 Land law
Question 2
Rigsby owned a large house which was sub-divided into three separate flats:
Flat 1, Flat 2, and Flat 3.
Rigsby allowed his cousin, Alan, to move into Flat 1 after Alan’s marriage
broke down and he had nowhere else to live. Alan signed a standard form
‘lease agreement’ that Rigsby found online. Rigsby deleted all the references
in the document to ‘lease’ and replaced them with the word ‘licence’. He also
added the following term: ‘Alan may occupy Flat 1 until he re-marries’.
Two local students, Philip and Brenda, responded to Rigsby’s advertisement
about occupying Flat 2. Rigsby required them to sign identical agreements
allowing them to live in the flat for three years. The agreement included the
following clauses: (a) Philip and Brenda must each pay £100 per week as an
‘occupation fee’, (b) Rigsby can decide to let a third person share the flat with
Philip and Brenda, and (c) Rigsby is to retain a key. Rigsby assures Philip and
Brenda that he will only need to use it if there is a water leak.
In January 2014 Rigsby agrees to grant Jones a lease of Flat 3 for two years
at an annual rent of £10,000, the rent to be paid in weekly instalments. Rigsby
never grants the lease but Jones moves in and pays the rent once a month.
Advise Rigsby as to the legal status of Alan, Philip, Brenda, and Jones.
General remarks
Essentially, Rigsby needs advice on whether his arrangement with the occupiers of
each flat takes the form of a lease or licence.
use
Street v Mountford, AG Securities v Vaughan, Antoniades v Villiers, Mikeover v
Brady, Prudential v LRB, Berrisford v Mexfield, ss.52, 54, 149(6) LPA 1925, s.2
LP(MP)A 1989.
Common errors
A failure to address the specific issues under each of the leases via an essay that
either did not consider each lease separately in turn, or did so repetitively, failing to
appreciate the different facts under each of the scenarios.
be divided into three sections and address the following issues.
Flat 1: Using Street v Mountford and related case law a key point of advice will be
the effect of Rigsby altering the pro forma agreement in the determination of
whether Alan does or does not enjoy exclusive possession. Even if Alan does enjoy
exclusive possession, there is scope to argue that he occupies under a licence
rather than a lease because Rigsby is his cousin and Rigsby agreed to Alan’s use
of Flat 1 because of marital difficulties. The maximum duration of the stated term is
clearly uncertain. But presumably it could be cured, under Berrisford v Mexfield, by
an application of s.149(6) LPA 1925, making it a determinable 90 year lease;
although the facts are silent as to whether Alan is paying rent, which would appear
to be a requirement under s.149(6).
Flat 2: The three year term is certain and the payment of an occupation fee could
constitute rent. As Philip and Brenda are shared occupiers the advice to Rigsby will
need to include a consideration of whether they have exclusive possession as joint
tenants. It will consequently be useful to draw on case law that bears upon the
provision of separate, yet arguably interdependent agreements, and the
2
interpretation of the term about whether the rent obligation is compatible with unity
of interest.
The advice about exclusive possession might be expected to draw on precedent
and illustrative case law and incorporate consideration of: the effect of Rigsby’s
retention of the key to repair leaks; Rigsby’s labelling of the payment as an
‘occupation fee’; and the claim to be able to introduce a third person into the flat.
This latter clause may be used as a hook to consider the applicability of the ideas of
sham/pretence, and raise questions about the absence of factual details, such as
the size/layout of the flat.
Flat 3: Here consideration should be given to the possibility of a Walsh v Lonsdale
equitable lease (assuming the agreement with Jones is written), a monthly periodic
tenancy or a legal fixed term tenancy under s.54(2) LPA 1925.
would fail to appreciate that the Examiners wrote the problem in order to bring up a
number of separate issues in this area and do not expect candidates to repeat the
same advice in respect of each lease or to treat the three leases as if they were one
composite lease.
Question 3
Adam was the registered owner of a large estate. There was a disused cottage
on the estate that had been empty for some time. In 1990, Tim decided to
renovate the cottage and make it his home. In 1993 he began refurbishing the
property and occasionally stayed overnight when working late on the
refurbishment. In 1995 he and Lisa, a keen gardener, moved in and began
landscaping the gardens and mended the fences to keep their pet chickens
from wandering off. Adam, who was attempting to secure finance to demolish
the old cottage and build a sports complex, was aware that Tim and Lisa had
moved in but raised no objection. Tim continued to live in the cottage until his
death in 2000, leaving all his ‘worldly goods’ to Lisa. Last year, after failing to
secure finance, Adam sold the registered title to Saul, who bought the
property after noticing its magnificent gardens. Last week, on legal advice,
Saul wrote to Lisa stating that he was content for her to remain at the
property for the ‘time being’.
(a) Advise Lisa.
(i) Adam had expressly told Lisa that he did not mind her and her
boyfriend using the cottage while he was seeking finance;
(ii) Lisa threw Tim out last year after he refused to stop picking
her prize flowers from the garden?
General remarks
 Given that the cottage is disused what amount of physical activity will
amount to factual possession? Is factual possession the same as exclusive
possession? There are various cases to suggest it is (e.g. Powell v
MacFarlane; Bucks CC v Moran, Marsden v Miller) but how then did the
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LA3003 Land law
overstaying licensee succeed in the leading House of Lords case Pye v

Graham when, by definition, Saul did not have exclusive possession?
 Clearly, events begin prior to 13 October 1991, but when does adverse
possession begin? Presumably, intention existed from 1990, but when did
factual possession arise?
 It seems physical work does not begin for another two years after 1993
and, even then, there is doubt whether this amounts to factual possession
given the infrequency of Tim’s overnight stays. Thus, it seems most unlikely
that adverse possession began prior to 13 October 1991 and the applicable
law is consequently to be found in Schedule 6, LRA 2002 rather than s.75
LRA 1925.
 Does factual possession begin in 1995? Is the fencing significant or does
the fact that it was to keep the chickens in rather than the world out make it
less so? (Inglewood v Baker) Is there any sense in such a dichotomy or do
fences invariably have a dual purpose? On balance it seems likely that
adverse possession began at this point.
 Was the possession adverse? A failure to object seems unlikely to destroy
the adverse nature of the possession particularly since the passing of the
Limitation Act 1980 Schedule 1 para.8(4).
Common errors
After various references to the issue in the newsletters it was hoped that candidates
would show some appreciation of the fact that the onset of adverse possession is
often not an easy point to identify and that both factual possession and an intent to
possess are required before the clock begins ticking. Unfortunately, far too many
candidates simply assumed adverse possession began in 1990, for no apparent
reason other than the fact that it is the first date mentioned. For the reasons
detailed in the notes above, it was highly unlikely that adverse possession
commenced before 13 October 1991. However, a candidate who took that line and
applied the old law under LRA 1925 was not overly penalised, although those that
failed to include coverage of the new regime under the LRA 2002 (either exclusively
or in the alternative) were unlikely to be awarded higher than a 2.2 at best.
address many of the subtleties detailed above and offer critical comment on the law
the candidate is applying; whether or not the candidate took a positive, negative or
ambivalent attitude to the changes introduced under LRA 2002.
4

showed little or no appreciation of the issues raised by the various facts, failed to
note the significance of 13 October 1991, showed little real understanding of how
Schedule 6 LRA 2002 works and were often far too keen to apply proprietary
estoppel in a situation where it was simply not applicable.
Student extract
The question needs an examination on title by adverse possession whether
Tim or Lisa will be able to claim it.
To claim title by adverse possession four requirements must be satisfied:
there must be factual possession; the possession must be open, adverse
and exclusive, the squatter must have intended to possess the land and
lastly it must have been possessed for 12 years prior to the LRA 2002 and
afterwards fulfilled the requirements of LRA 2002.
In the leading case of Bucks CC v Moran it was held that possession is to
be assessed contextually and will vary from terrain to terrain depending
upon the type of land possessed.
There are some cases which illustrate factual possession. Prudentail
Assurance v Waterloo where the refurbishing of a house constituted factual
possession. In Seddon v Smith the mending of fences likewise amounted to
factual possession. It has recently been accepted, in Purbrick v Hackney
LBC that even quite trivial acts can amount to factual possession … [the
essay continues by listing a number of cases where quite trivial acts
amounted to factual possession].
The next requirement is that the possession must be open, adverse and
exclusive as the squatter must be seen to have ‘unfurled his flag’ to show to
the world that he has taken possession … [the essay continues by
considering various cases that demonstrate this point]
The third requirement is that there must be an intent to possess the land
and exclude all others including those with a better title … [the essay
continues by considering various cases that demonstrate this point]
Lastly the adverse possessor has to fulfill the necessary requirements
depending upon whether the land is unregistered or registered and, if the
latter, whether the inception of adverse possession began before or after 13
October 1991 … [the essay continues by considering the different rules that
apply in each of those three situations].
The alternative circumstances where Lisa would have been told by Adam
that he did not mind them using the land whilst he sought finance would be
regarded as an acknowledgement of title under s.29 and s.30 of the LA
1980 and where Lisa threw Tim out the adverse possession would lapse.
[The essay continues by briefly considering what might arise under the
initial facts]
So if Saul did not evict the squatter by 2005 an unimpeachable right will
have been acquired.
Comment on extract
This is a clear fail. In problem questions candidates are assessed on how well they
apply the law to the facts and candidates should avoid the temptation to write
extensively on the generic law without applying it, from the outset, to the facts
before them. This candidate leaves it far too late to start applying the law and
adopts an illogical structure (by considering the alternative facts before the initial
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LA3003 Land law
ones). The belated attempts to apply the law are also wrong and the essay finishes
with a nonsensical statement suggesting that the new owner (Saul) should have
evicted the squatter almost a decade before he had bought the registered title.
Question 4
Adele owned Greengates, title to which is registered. Greengates comprised
a furniture shop and an adjoining house. In 2011, when Adele retired from
running her business, she leased the furniture shop to Jessie, but retained
ownership of the house. Earlier this year, when the lease came to an end,
Jessie purchased the registered title of the furniture shop from Adele. Jessie
now needs your advice about each of the following matters:
(a) Is Adele entitled to replace the underground drains in the garden of
her house? Jessie is concerned that Adele’s proposed new drainage
system will no longer serve Jessie’s shop.
(b) Can Adele insist upon replacing the broken TV satellite dish that is
hanging on the side wall of Jessie’s furniture shop? Adele insists that
the shop wall is the only location from where it is possible to receive a
reliable TV signal for her house. Jessie, however, wants Adele’s
unsightly satellite dish permanently removed without being replaced.
(c) Can Jessie continue to park her delivery van in the garage belonging
to Adele’s house? Jessie began parking there several weeks after she
leased the shop from Adele in 2011. Adele had suggested the idea
because Jessie’s van had been stolen from the road. Adele is now
claiming that she needs the garage to park her new car.
How, if at all, would your advice to Jessie on (a) and (b) be different if Adele
had sold the registered title to the shop to Jessie in 2011 (rather than leased it
to her)?
General remarks
This is a fairly standard problem designed to test application of aspects of the
doctrinal nature of easements and the available methods by which they may (or
may not) have been (impliedly) created between Adele and Jessie.
use
Re Ellenborough, Copeland v Greenhalt, London & Blenheim v Ladbroke Estates,
Batchelor v Marlowe, Moncrieff v Jameson, Wheeldon v Burrows, Wong v
Beaumont, Sweet v Sommer, Peckham v Ellison, Sovmots v SS for Environment,
Platt v Crouch.
Common errors
Wasting time laboriously going through the requirements of Re Ellenborough when
considering potential easements where there is no issue concerning whether or not
they can exist as an easement and where the candidate should consequently only
be concerned with whether or not they haven been created.
An unwillingness to distinguish between implied grants and reservations when
dealing with (a) and (b).
A failure to appreciate that the rule in Wheeldon v Burrows and s.62 LPA have no
application to implied reservations and only rarely (on the fulfillment of stricter
requirements) can a reservation arise under common intention.
divide the response into sections and address the following issues.
6
(a) The right to use an underground drain does not warrant a detailed
exploration/application of the ideas in Re Ellenborough as there is no doubt this
is capable of being an easement; the only issue is whether or not it was created
in this instance. There is consequently a need to explore all the available
methods of implied grant to determine if Jessie has a property right enabling her
to object to Adele replacing the existing drains.
(b) Again there is little that appears to be contentious in Adele’s claim that the
right to hang a satellite dish can exist as an easement (although here the advice
might touch upon how it can be argued the right benefits the use of the
dominant land). As there is no suggestion that A has expressly reserved the
right, the advice needs to determine how it may arise via implied reservation.
(c) Advice should first identify the uncertainty in the case law about if and when
a right to park is capable of being an easement (this allows for skilful integration
of academic commentary in the advice.) As Jessie and Adele seem to have
created a licence shortly after the 2011 lease, one issue is whether this has
been transposed into an easement by s.62 when Jessie subsequently acquired
the shop.
The final rubric does not need lengthy attention. For one thing it gives a context for
considering how far the traditional view of a need for prior diversity of occupation,
which makes the operation of s.62 and Wheeldon mutually exclusive, has been
subject to recent judicial challenge.
fail to subdivide the answer and show no real appreciation of the fact that there are
two basic aspects to an easement question. Namely: (1) is the right capable of
being an easement; and (if so) (2) has it been created as such in this particular
scenario. There is no point in considering (1) where the right in question clearly can
exist as an easement and candidates who laboriously (and in detail) repeat the Re
Ellenborough requirements for each potential easement are simply wasting time
that should be spend on the substantive issues in the problem. You only need to
consider Re Ellenborough in detail where the right in question might not come
within the established categories of easement and thus there was no need to
consider it under (a); while under (b) it was (to the limited extent already noted)
acceptable, but by no means critical, that you did so.
Question 5
Tom was the owner of a large estate with extensive grounds and a manor
house called Mallet. Part of that estate, called Velvet Pastures, was used by
Boystoy Ltd as a croquet ground and museum. In 2004, Tom gave Velvet
Pastures to Boystoy to continue using it as a croquet ground and museum.
The conveyance to Boystoy contained the following covenants by which
Boystoy agreed:
(i) not to allow any structure on Velvet Pastures to fall into disrepair;
(ii) to use Velvet Pastures only for croquet matches to be played between
the hours of noon and 3 pm;
(iii) to allow the current owner of Mallet to preside at any awards
ceremony organised by Boystoy and their successors in title.
In 2005 Tom died and left Mallet to his son Harold, who was also a keen
croquet player like his father. Last year Boystoy went into liquidation and
Velvet Pastures was bought by Girlsthing Ltd, which has begun staging
ladies football matches between the hours of 3 pm and 10 pm on Velvet
7
LA3003 Land law
Pastures. These matches regularly attract a large and often raucous crowd,
quite unlike the sedate audience that previously attended the croquet
tournaments.
At their last board meeting, Girlsthing decided not to repair the museum,
which had been damaged in a recent storm, and announced that the
forthcoming awards ceremony would be a ‘ladies only’ event.
Advise Harold.
General remarks
 Covenant (i): although it takes a negative form this covenant is in substance
positive.
 Covenant (ii): this looks to be negative in substance if interpreted as a
covenant not to build akin to the ornamental gardens clause in Tulk.
Consider whether it might additionally be interpreted as a clause preventing
activity likely to disturb one’s neighbours.
 Covenant (iii): although clearly not personal this does not appear to touch
and concern the land.
 Did the benefits pass to Harold when Tom died?
 Did the burdens pass to Girlsthing when they bought Velvet Pastures?
 Are the ladies football matches a breach of covenant (ii)?
 The decision not to repair the museum would appear to be a breach of
covenant (i).
 Is the ‘ladies only’ awards ceremony a planned breach of covenant (iii)?
This is a standard non-leasehold covenants question where candidates must
consider whether the benefit (Tom to Harold) and burden (Boystoy to Girlsthing)
have duly passed in equity and (for the sake of completeness but not absolutely
necessary) at common law.
Common law: Benefit
1. Assignment
There appear to be no express assignments but as none of these benefits are
purely personal all of them could have been passed as choses in action under
s.136 LPA.
2. Annexation
Clearly these are post-1925 covenants and thus s.78 (as interpreted in Federated
Homes) applies. There are thus only two requirements:
1. the covenant must touch and concern Mallet and
2. both Tom and Harold must have a legal estate in Mallet.
The second does not appear to be an issue (although we have not actually been
told that they own legal estates) leaving us only to consider whether each of the
three covenants touch and concern Mallet. The answer seems to be:
8
Covenant (i): yes

Covenant (ii): probably, if interpreted as a covenant not to build and/or to avoid
activities that disturb the neighbours.
Covenant (iii): no.
The burden of course cannot pass at law and thus we now move to whether or not
the benefit and burden passed in equity (perhaps pausing to consider whether, if
the burden passes in equity, it is sufficient for the benefit to have passed at
common law; which usually does not matter (as equity is only rarely more
restrictive) but is also thought insufficient, in which case the benefit must likewise
run in equity – but see Gray, Elements of land law).
Equity: Burden
There are four requirements for the burden to run in Equity:
1. it must be negative
2. it must accommodate the dominant tenement
3. there must be an intention that it should run
4. it needs to be registered.
On that basis the three covenants all seem to fulfil (3) and we have no information
regarding (4). Turning to whether (1) and (2) are fulfilled in respect of each of the
three covenants:
Covenant (i): fails on (1) but not (2).
Covenant (ii): probably succeeds on (2) and definitely (1).
Covenant (iii): definitely fails on (2) and possibly (1).
Thus, the burden in covenant (ii) could well run (provided it was registered) in which
case we need to consider whether the benefit ran in equity (but see discussion
above).
Equity: Benefit
There are two requirements to fulfil for the burden to run in equity: the covenant
must
1. touch and concern Mallet and
2. pass by assignment, annexation or under a scheme of development.
Clearly here the benefit in covenant (ii) will (if interpreted in a way that lets the
burden run) touch and concern the land. There appears to be no possibility of
assignment or a scheme of development but it will pass by means of a statutory
annexation (as considered above at common law), but in equity irrespective of
whether Tom and/or Harold have a legal or an equitable estate in Mallet.
Thus, arguably, the benefit and burden of covenant (ii) have both passed to Harold
and Girlsthing but unlike covenant (i) there is more doubt over whether a breach
has occurred (depending upon how widely covenant (ii) is construed). On covenant
(i) Boystoy would be liable to Harold in damages but as they went into liquidation
that would be of little solace. Finally, no injunctive relief would be available in
respect of covenant (iii) as neither the benefit nor the burden passed to Harold or
Girlsthing.
9
LA3003 Land law
use
Tulk v Moxhay, Federated Homes, ss.78, 79, 136 LPA 1925.
Common errors
Quite inexplicably, a fair number of candidates addressed this problem on the basis
of leasehold covenants and duly failed the question. Other common errors included
an unwillingness to consider the substance (rather than the form) of the covenants
when assessing whether they were positive or negative, a failure to properly
distinguish benefit and burden and little consideration of the touch and concern
requirement or the importance of registration.
adopt a structured approach making good use of sub-headings and showing a clear
understanding of the technical law. A critique of the law in this area could also be
usefully incorporated; particularly in the final paragraph (which should not be
wasted simply summarising what has already been said).
showed little understanding of the technical aspects of the law and were confused
and chaotic.
Question 6
Elizabeth was the registered owner of Republican Acre, which she purchased
with Phillip, who contributed 30% of the purchase price. Republican Acre
comprises a house, in which they both live, and an adjoining field. Andrew
has an express easement over Republican Acre, giving him access to the
river from his neighbouring property, but he now no longer uses the
easement since he recently became scared of water. Last year Elizabeth
granted Andrew a ten-year option to purchase Republican Acre for
£5,000,000. In January Elizabeth sold Republican Acre to Charles for
£10,000,000 while Phillip was on a 3-month ‘round the world’ cruise and
Andrew was staying in their guest room because all the bathrooms were
being renovated in his house. Charles is now the registered owner of
Republican Acre.
(a) Advise Charles.
(i) No purchase monies arose on the disposition to Charles as
the house was a gift from Elizabeth;
(ii) Charles only paid £1 for Republican Acre?
(c) Describe, briefly, how, if at all, your advice in (a) and (b) would differ if
title to the land was unregistered and each transaction was carried out
solely subject to the rules of unregistered title.
General remarks
 We are talking about a registered title from the outset so there is no issue of
first registration to consider.
 Elizabeth holds the legal estate on trust for Elizabeth and Phillip.
10
 Despite the obiter comments in Stack v Dowden and Jones v Kernot

regarding the inapplicability of the resulting trust in the domestic context,
the courts do not (according to the Court of Appeal in Geary v Rankine)
have the ability to impute a common intention in an acquisition case (i.e. a
case where the other party is not on the legal title via a joint tenancy). On
these facts, unless the differential contributions to the purchase price can
be used to infer a common intention to share equally (or in some other non-
resulting proportion), a resulting trust would, in the absence of any evidence
to decide otherwise, appear to be the only solution here.
 We are told that Andrew has an express easement and there is
consequently no point in speculating upon whether the easement is
capable of being express, nor whether it was created expressly, impliedly or
not at all. The only issue to concern us in this question is whether or not it is
legal or equitable, as we have not been given that information.
 Likewise we do not need to dwell overlong on s.2 LP(MP)A 1989 as the
question states that an option to purchase was granted and so it must, by
definition, comply with the formal requirements necessary to be an option.
 Charles is clearly a purchaser for value.
 Was Phillip still in occupation at the time of the sale to Charles under
Boland and if so was that occupation discoverable under LRA 2002
Schedule 3, para.3(2)?
 Likewise, is Andrew in discoverable occupation for the purposes of
para.3(2)?
 So we need to discover whether Charles is bound by Phillip or Andrew’s
interests.
This is a question on the rules of registered and unregistered conveyancing and
candidates do not gain credit if they waste time on the requirements of a valid
option or express easement. As you are told in the subject guide, you should take
such statements as authoritative and thus, if told an option or express easement
has been granted, you should not look behind that fact to query compliance with the
necessary formalities. In contrast, you have not been told whether the express
easement is legal or equitable and thus that is something on which you should
speculate and answer in the alternative.
use
See the cases and statutory provisions listed below.
Common errors
Many candidates continue to confuse the rules of registered and unregistered
conveyancing and, in particular, attempt to apply the Land Charges Act 1972 to
registered title when it is only applicable to unregistered title. You are strongly
recommended to consult the diagrams included in the subject guide.
Would adopt the structure of the question and cover the following issues:
(a)
Beneficial interest
Phillip should have protected this by means of a restriction requiring that any
conveyance comply with overreaching. This appears not to have happened as
Elizabeth, as sole legal owner, transferred the registered title to Charles for value
11
LA3003 Land law
clearly not in compliance with overreaching. Thus, it depends upon whether Phillip
comes within Schedule 3 para.3(2) which requires candidates to determine whether
he remained in occupation during his three month sojourn (probably) and whether it
was discoverable on a reasonably careful inspection of the land (where you need to
speculate as you have not been given any facts regarding the occupation or
inspection).
Express easement
As an express easement it must be substantively registered to be legal in which
case it will bind C. If not substantively registered the equitable easement could be
protected by means of a notice and would again bind C. If this has not occurred it
cannot come within Schedule 3 para.3 as it not a legal easement although it might
come within para.2 if coupled with discoverable occupation. The Court of Appeal in
Chaudhary v Yavuz refused to find that using a metal staircase constituted ‘actual
occupation’. Admittedly they explicitly chose not to offer any comment as to whether
the exercise of other forms of easement could ever comprise ‘occupation’ but that
would appear to be relevant to easements such as parking and storage and not
applicable to these facts. However under Webb v Pollmount there does not need to
be any causal connection between the right protected and the occupation that
provides the protection. Thus, the equitable easement would be protected if on
these facts Andrew is held to be in discoverable occupation even though that
occupation was not derived from the option but from the act of good
neighbourliness.
Option
This is necessarily an equitable interest which, to bind Charles, should have been
protected by means of a notice. In the absence of so doing Andrew will only be
protected if he is in discoverable occupation as discussed above.
(b)
(i) Under State Bank of India v Sood it is arguable that, where no purchase monies
arise, even a single trustee can enter into an overreaching transaction. Thus,
Phillip’s interest would be overreached even if he were in discoverable occupation.
(ii) Is £1 nominal consideration? According to the House of Lords in Midland Bank v
Green the concept is an absolute and not relative term. This is surely open to
debate (it would after all, unlike a peppercorn or a 1p, fail my ‘not bending down to
pick it up if I saw it on the ground’ test!) If it is nominal then, unlike in unregistered
title, Charles is not a purchaser who takes free of such unprotected interests, as
valuable consideration is defined as excluding nominal consideration under s.133.
(c)
(a) The survival of Phillip’s beneficial interest will be decided under the
equitable doctrine of notice (Kingsnorth v Tizard).
Andrew’s easement if legal will bind the world and if equitable should
have been protected as a class D(iii) land charge and will be void
against Charles if not so registered.
Andrew’s option should have been protected as a class C(iv) land
charge and will be void against Charles if not so registered.
(b) (i) If the above reading of Sood is correct, Phillip will be overreached
even if his interest was binding under the equitable doctrine of notice.
(ii) In contrast to registered title, even if £1 is nominal consideration,
Charles will still be purchaser for money or money’s worth under s.4(6)
12
LCA 1925 as according to Midland Bank v Green ‘money or money’s

worth’ includes nominal consideration.
waste time considering whether or not an easement or an option has been granted
or spend too long on speculating on what share in the beneficial interest Phillip
might acquire.
Question 7
‘Although the mortgage is a creature of equity, it is time for equity to
relinquish its hold and let statute regulate a device where the residential or
commercial nature of the transaction necessarily requires a wholly different
degree of legal oversight.’
Discuss.
General remarks
This was an essay that provided candidates with a chance to consider the very
different circumstances in which mortgages are granted and the inappropriateness
of the one size fits all approach of equity.
use
Multiservice Bookbinding v Marden, Cityland v Dabrah, Samuel v Jarrah Timber,
Reeve v Lisle, Biggs v Hoddinot, Sanley v Wilde, Kreglinger v New Patagonia, AJA
1970/1973, CCA 2006, FSMA 2000.
Common errors
A failure to go beyond the case law to consider the legislative developments in this
area in recent years.
explain how legislative advances in recent years have already begun to make
inroads into the homogenic nature of the mortgage (as emphasised by recent
developments regarding the future role of the FCA) and speculated on whether or
not more could and should be done in this area.
Simply wrote all they knew about the law of mortgages.
Student extract
This essay began with a comparatively brief explanation of how the mortgage is
indeed historically the product of equity’s intervention to address the shortcoming in
the ancient common law mortgage. It then continues by considering relatively
modern cases including Multiservice Bookbinding v Marden, Cityland v Dabrah to
illustrate the very different issues and pressures that exist in commercial and
residential settings before describing the statutory framework that applies to the
latter in the following extract.
However in addition to the historic equitable safeguards, residential
mortgages have become increasingly subject to statutory regimes. Until
recently there were two regulatory schemes but from April 2014 the
Financial Conduct Authority (FCA) became responsible for regulating all
such mortgages. Before then first legal mortgages of residential properties
to be occupied by the borrower were already regulated by the FCA. Whilst
consumer mortgages which previously fell outside of FCA regulation, such
as second mortgages and mortgages for other purposes (ie those on a
‘buy-to-let’ basis), were covered by the consumer credit legislation instead
(the Consumer Credit Act (CCA) 1974, as amended by the Consumer
13
LA3003 Land law
Credit Act 2006). The two regulatory regimes were mutually exclusive, so
that an FCA regulated mortgage fell outside the consumer credit legislation
and vice versa.
The consumer credit legislation was historically aimed at protecting
borrowers with low credit ratings who find it difficult to obtain finance.
However it was often difficult to intervene in such circumstances because
their poor credit rating justified a higher interest rate. In Paragon Finance v
Nash, the court held that a lender’s discretion to vary interest rates was
subject to an implied term not to exercise that discretion for an improper
purpose, arbitrarily or capriciously. However, maintaining interest rates at 2
- 4% above those on the high street was not a breach of this implied term or
‘grossly exorbitant’ under the CCA 1974. Whilst in Davies v Directloan the
lender had not acted improperly by imposing a 21.6% rate of interest (at a
time when market rates were 17%) because he court were justified in taking
into account the poor credit history of the borrower and the subsequent risk
being taken by the lender.
The extortionate credit provisions of the CCA 1974 were replaced by the
concept of an ‘unfair relationship’ under the CCA 2006. This also allows the
court to examine whether the creditor’s behaviour towards the borrower has
in any way been unfair. The legislation, perhaps wrongly from the
perspective of certainty, does not clearly define an ‘unfair relationship’,
preferring instead to leave it to the court to decide how this should be
applied on the particular facts. The CCA 2006 gives the court a wide range
of remedies to deal with an unfair credit relationship, including ordering any
part of the agreement to be set aside, varying any terms, or ordering a
creditor to take or refrain from taking a particular course of action.
The essay then continues by considering another example of the statutory control of
(broadly) residential mortgages in the form of the AJA 1970/73 and the power given
to the court to postpone possession proceedings where the mortgaged property
includes ‘a dwelling house’. The essay then finishes by concluding that the
quotation, although once correct, fails to give enough prominence to recent
statutory interventions that do go some way to recognise the contextual difference
between residential and commercial mortgages.
Comment on extract
This is a clear first with the candidate showing good detailed (but apposite and
succinct) knowledge and a willingness to engage with (and point out weaknesses
in) the quotation.
Question 8
A few years ago Elizabeth, Mary and Sylvia bought a country cottage
together. They were registered as joint tenants and declared in the TR1 form
that they held title in trust for themselves as joint tenants. Elizabeth
contributed 50% of the purchase price, Mary 40%, and Sylvia 10%.
Initially they used the cottage for occasional weekends, but Sylvia soon found
a job nearby and began living in the cottage. Her boyfriend Jim moved in with
her, to help look after their new born baby.
Last year Elizabeth was posted abroad and sold her beneficial interest in the
cottage to Mary.
In January Mary wrote to Sylvia offering to sell her interest in the cottage to
Sylvia. Sylvia replied that she and Jim “would immediately start saving so
that they can take her up on her offer”. In February Mary was made redundant
14
and wrote to Sylvia saying she needed to sell her share now. Sylvia explained
she would definitely be in a position to buy out Mary’s share in a couple of
years but Mary has explained she cannot wait that long and is insisting,
despite Sylvia’s objections, that the cottage be sold immediately.
(a) Advise Sylvia.
(b) If the cottage was sold now, how would the proceeds of sale be
divided?
(c) How, if at all, would your advice in (a) differ in EACH of the following
(i) The property was conveyed into their joint names but no
(ii) Elizabeth, Mary and Sylvia were business partners and no
(iii) Mary was adjudged bankrupt;
(iv) Sylvia died yesterday leaving her entire estate to Jim?
General remarks
 The declaration in the TR1 form is conclusive as to the beneficial interest
being held jointly and thus the individual percentage contributions are an
irrelevance.
 Was use ‘for occasional weekends’ the original purpose?
 Did the purpose change from holiday home to family home when Sylvia
began living in the cottage and Jim and their baby moved in?
 Elizabeth has clearly acted upon her share by the irrevocable action of
selling it, and thus severs her interest, which means that Mary is a tenant in
common of one third and that her and Sylvia jointly own two thirds of the
beneficial interest.
 Does Mary’s letter to Sylvia in January count as a written severance under
s.36(2) LPA 1925? Seems unlikely as it does not manifest an immediate
intention to sever.
 Sylvia’s remark about saving up seems to confirm the lack of immediacy
regarding Mary’s plan.
 Does Mary’s letter in February comply with s.36(2) LPA 1925?
(a) Either Sylvia or Mary could apply to court under s.14 TOLATA and under
s.15 the initial purpose [s.15(a)], changed purpose [s.15(b)] and the welfare
of the child [s.15(c)] would all be relevant considerations to which the court
is required to have regard. Whether a postponement of sale would be
ordered is a moot point although Sylvia is in a better position than she
would otherwise be in the absence of a secured creditor petitioning for a
sale.
(b) One third to Sylvia and two thirds to Mary (please see bullet points above
for an explanation as to why).
15
LA3003 Land law
(c) (i) According to Stack v Dowden, in a domestic context, equity follows the
law when the legal title is in joint names (absent requisite evidence to the
contrary) rather than adopting a resulting trust based upon their
proportionate contributions.
(ii) Clearly, in this situation, they would be tenants in common on a
presumed resulting trust in proportion to their contributions.
(iii) Mary’s trustee in bankruptcy would proceed under the more favourable
s.335A IA 1986 and, in the absence of exceptional circumstances, would
prevail after, at most, a 12-month delay.
(iv) Did Mary’s final note sever by written notice? In which case Sylvia was
a tenant in common of one third when she died and could indeed leave that
share to Jim.
use
Williams v Hensman, Re Drapers Conveyance, Burgess v Rawnsley, Nielson Jones
v Fedden, Davis v Smith, Re Palmer, Stack v Dowden, TOLATA 1996, s.36(2) LPA
1925, s.335A IA 1986.
Common errors
A majority of candidates found this a surprisingly difficult question. Errors included:
failing to note the significance of the express declaration concerning the beneficial
interest, not considering either or both the initial and subsequent purpose for which
the house was held; awarding shares after severance by reference to the now
irrelevant percentages the parties contributed to the purchase when any severance
of a joint tenancy will always be on the basis of equal division among the current co-
owners, ignoring the immediacy requirement in s.36(2) LPA, ignoring Stack v
Dowden regarding the presumption applicable to legal joint tenancies of residential
property, failing to apply the contrary presumption relating to business partners;
failing to apply s.335A IA 1986 in the context of bankruptcy; applying the right of
survivorship to a tenant in common.
adopt the structure given by the question and answer each part in turn, giving
approximately equal treatment to the law of severance and the workings of
TOLATA. Diagrams may be used (although they are by no means essential) but
only if they assist in the explanation and candidates are strongly advised to adopt
the form of diagram used in the subject guide or in Gray’s Elements of land law.
failed to use the structure dictated by the question and gave composite answers
that (unsuccessfully) sought to answer more than one part simultaneously; sought
to award shares (either from the outset or subsequently) by reference to the initial
contribution to purchase price; provided diagrams of doubtful utility and often
claimed that some (and sometimes all) the alternative facts were of no significance
(it is, by the way, highly likely that the alternative facts will be insignificant in a
problem question).
16

LLB
BSc DEGREES
Land Law/Property Law
Permitted materials
Either one copy of Blackstone's Statutes on Property Law (OUP) or one copy
of Palgrave Macmillan’s Core Statutes on Property Law.
UL14/0809
Page 1 of 5
1. Dick and Harriet became homeless in 1989. Their friend, Nat, allowed
them to live in a cottage on his country estate, Downturn, and use
some of the fields next to the cottage to keep the pigs they reared. In
return Nat charged them a nominal fee.
When Nat died in 1990, his entire estate went to Tom, a wealthy
stockbroker, who became the registered owner of Downturn. As Tom
did not want to move from London to live at Downturn, he immediately
started negotiations to sell it to Zoe, a property developer. Tom asked
Dick and Harriet to leave the cottage and take their pigs with them.
However, the negotiations with Zoe broke down just before Tom’s firm
posted him to work in New York. Dick, Harriet, and their pigs remained
at Downturn. Dick wrote to Tom to say they would be interested in
renting the cottage and field but they heard nothing back.
Over the next few years, Dick and Harriet replaced the electric wiring in
the cottage. To guard against theft, they also installed security cameras
and put a padlock on the gate between the road and the fields in which
the pigs were kept.
When Tom returned to the UK in 2014, he was furious to find that Dick
and Harriet were still living and keeping pigs at Downturn. He
demanded that they leave because he is now ready to sell Downturn
for re-development. Dick and Harriet tell him that they are convinced
that by now they must have acquired property rights for them and the
pigs to stay put.
Advise Tom.
2. ‘After 1925 the doctrine of notice occupied a residual role in

determining priority disputes between purchasers and holders of
equitable interests in unregistered land. However, it is clear that ideas
of notice have no place in the corresponding priority rules provided by
the Land Registration Act 2002.’
Discuss.
UL14/0809
Page 2 of 5
3. In 1998 Beyonce built a cottage on the substantial grounds of her
estate next to the building she used as her recording studio (‘the
studio’). She sold the cottage to Cher. The conveyance included a
number of covenants by which Cher agreed ‘for the benefit of the
neighbouring properties’ that she would:
‘(a) only use the cottage as a private dwelling;
(b) repair the guttering that runs across the roof of the studio
and the cottage; and
(c) pay half the annual cost of maintaining the shared

driveway that serves both the studio and the cottage.’
The conveyance further provided that the benefit of covenant (b) was
not to benefit future owners of the studio unless it was expressly
assigned to them.
Beyonce sold the studio to Madonna in 2006. After Dido purchased the
cottage in December 2013, she immediately began using it as the base
for her modelling agency. Madonna wrote to Dido to complain about
the consequential increase in traffic and pointed out that a section of
the studio’s guttering, which was blown away in a storm, was in need of
urgent repair. In the same letter, Madonna enclosed an invoice for
Dido’s half of the annual cost of maintaining the shared driveway. A
few days later, Dido emailed Madonna refusing to repair the guttering
or pay anything for the maintenance of the driveway. Dido’s email also
mentioned that she had just received planning permission to create a
separate driveway for the cottage.
Advise Madonna whether she can enforce the covenants against Dido.
4. ‘There are sufficient and appropriate legal controls protecting the

mortgagor both as to the terms that can be included in the mortgage
and also the circumstances in which the mortgagee may possess and
sell the mortgaged property. It is however questionable whether or not
these legal controls give due weight to the need to protect the
mortgagee’s security interest.’
Discuss.
UL14/0809
Page 3 of 5
5. In 2009 five friends, Abe, Beth, Cath, Don, and Edwina, decided to use
their lottery winnings to buy Riverview, for them all to live in. They each
contributed unequal amounts to the purchase price and the property
was conveyed to Abe, Beth, and Cath in trust for all five of them as
beneficial joint tenants.
In 2010 Abe sent a postcard to the others saying: ‘As I am going to be

married I need to sell my interest in Riverview.’ After he posted the
postcard addressed to Riverview, Abe received a text from his fiancée
ending their relationship. The next day he intercepted the postman at
the gate and tore up the postcard.
A few months later, Beth’s daughter, Fern, moved in to Riverview. Fern

had previously lived with her father but her parents decided that
Riverview’s location was better suited to her psychological
development.
In 2011 Cath wished to sell her interest in Riverview to help finance a

trip around the world. She called the others to a house meeting to ask if
they would like to buy her interest. After discussing the idea, they told
Cath they would buy her interest but they could only afford to pay
£60,000. Cath started on her trip without finally agreeing on a price with
the others. Before she left she made a will in which she left her interest
in Riverview to Don. Tragically, Cath was killed in a mountain climbing
accident in the Swiss Alps.
Last year Edwina bought a second home in the Lake District. In order
to fund its purchase, and without telling the others, she mortgaged her
interest in Riverview to the Ulswater Bank. In January 2014 Edwina fell
behind in her mortgage repayments after she lost her job.
Advise the Ulswater Bank:
(a) as to the allocation of the beneficial ownership in Riverview; and
(b) whether it is likely to succeed if it seeks to have Riverview sold.
6. ‘Lawyers love to complicate matters. Firstly, they tell us that formalities

are necessary to produce a certain and just system of property
transfer, and then they resort to proprietary estoppel that produces
uncertainty all in the name of justice! They cannot have it both ways:
the formality rules should either be consistently applied or be
completely abandoned.’
Discuss.
UL14/0809
Page 4 of 5
7. Elton was the registered owner and occupier of Abbey Road, which
was connected to a recording studio. The studio was accessible
through an internal door in Abbey Road and also by an external door
that opened directly on to a small lane at the rear of the property. Elton
regularly used the rear door to escape photographers waiting by his
front door. Two years ago, Elton granted a 12-month lease of the
studio to Robbie, who was recording his new album, but Elton
continued to use the rear entrance to escape the photographers. A few
months later, Elton told Robbie he could use the garden of Abbey Road
to relax in when he needed a break from recording and that he could
park the large luxury motorhome in which he was living on Abbey
Road’s front drive. Last year, the lease of the studio was renewed for
another three years, and last month, the freehold of Abbey Road and
the studio was sold to Marilyn. She has now told Robbie to stop using
the driveway and the garden and he responded by telling her to stop
using the rear entrance of the studio.
Advise the parties.
8. Rita owns a house, which comprises a ground-floor bar and a

separately accessed first-floor one-bedroom flat. Last year, Rita agreed
in writing to grant to her friend Audrey a lease of the bar for three years
at a nominal rent of £5 per week, the rent to be paid monthly in
advance. The agreement also provided that either party could
terminate the lease by giving six months’ notice. The lease was never
formally executed but Audrey took possession of the bar and started
paying rent each month. Last month, Rita agreed that David and his
girlfriend Tina could live in the first-floor flat. Rita drew up a ‘Licence
Agreement’ and insisted that David and Tina sign separate identical
versions because Tina was away at college. Tina’s agreement was
posted to her and signed and returned about a week after David had
signed his version. The agreements stated that they would each pay
£300 per month as an ‘occupation fee’ and could live in the flat ‘until
Rita sells the freehold’. The agreement also stated that Rita would
come in and clean the flat for one hour every day between the hours of
7 am and 11 am.
Rita has recently been diagnosed with severe arthritis and has stopped
cleaning the flat. She now wants to terminate her arrangement with
David and Tina so that she can resume living in the flat. She also
wants to end Audrey’s lease as she does not want to be disturbed by
noise from the bar.
Advise Rita.
END OF PAPER
UL14/0809
Page 5 of 5
Examiners’ reports 2015
LA3003 Property Law – Zone A
Introduction
As in previous years, the examiners were all too aware of large numbers of
students who, despite evident hard work, failed to achieve their potential because of
poor technique. Please remember the exam is not a test of knowledge but of the
application of knowledge and, before considering the substantive advice on each
question below, make sure you have assimilated the following general advice.
1. Poor handwriting – most, if not all, students should consider writing on
alternate lines as this invariably makes reading (and therefore marking!)
easier.
2. Poor grammar and spelling – language is the lawyer’s tool and unless
underachieve. Whether English is, or is not, your first language you can still
hone your skills before the exam by reading articles and cases while
listening to English language broadcasts and recordings on TV, radio and
the internet.
3. Avoid waffle – too many students still seem to think that reciting rote learnt
bookwork in the general area of the question will get them marks – it does
not and just irritates the examiner! Focus on the question asked, and the
issues raised, throughout your essay.
4. Avoid overlong introductions – start addressing issues from the outset in
5. Avoid repetitive conclusions – there is little point just repeating what you
have said in your essay! Here is your chance to reflect on what went before
by commenting on the law you have applied or the views you have
considered. This is an exam answer, not a scholarly article and you should
not waste time repeating yourself.
6. Never quote chunks out of the statute book – we know you have it with
you in the exam and give no marks for accurate copying!
7. Do not simply litter your answer with numerous case names – say just
enough (i.e. a line) about the facts and judgment(s) to illustrate why you
think a case is relevant. This shows the examiner you have read the case
and have an opinion concerning it and its relevance.
8. Avoid inventing new facts in problems – there is more than enough to
say in the exam already and you should be careful not to add to the
complexity – although that should not preclude you pointing out where a
critical fact has not been revealed and explaining why that is significant.
1
9. Avoid ambivalence – both problems and essays are invariably set in the
grey areas of the law where alternative arguments exist but that should not
prevent you reaching a conclusion after considering the merits of the
various approaches and explaining why you favour one over the other(s).
10. Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, while those
problems multiply where there is more than one judgment in a case. Do not
ignore this complexity but make reference to it. The same is even true of
statutes, on occasion, and likewise juristic writings – language lacks the
precision of mathematics which is why poetry is beautiful and (some)
lawyers rich!
11. Make sure you divide up your time sensibly and spend as long on
your last question as on your first – time spent perfecting your initial
answer is counter-productive if you eat into the time you should be
spending on your last answer!
12. Use subheadings in your answer – judges do so, so why shouldn’t you?
And if the question is in parts make sure you divide your answer likewise.
13. Never question the facts in a problem – nor speculate on whether they
can be proved. Think of yourself as a judge sitting in the Court of Appeal
writing a judgment that has come to you in a case stated form. You are
there to apply the law to the given facts, willing to reject first instance
decisions, overturn CA precedents and, although nominally bound by
HL/SC decisions, still able to criticise or distinguish them.
14. Finally – know the law (in so far as it is known), know the arguments (in so
far as there is doubt over what the law is or should be) and know what you
think – make sure you include your own opinion (although not exclusively
and after giving due weight, but not undue deference, to case law and
juristic writings).

Question 1
In January 1999, Aisha came across a disused cafe, the title to which was
registered. Aisha wrote to the cafe’s owner, Todd, asking to rent it for a short
period so that she could try opening a coffee house. Todd told Aisha that he
was waiting until the market picked up and he would then develop the
premises. However, he agreed to grant her a licence until June 1999 so that
they could both gauge whether it was viable as a coffee house. At the end of
the licence Aisha had attracted a large and loyal clientele and wrote to Todd
offering to pay rent but did not receive a reply. Aisha continued to run the
coffee house and Todd finally wrote to her in 2003 offering to grant her a
lease but she ignored the letter. In 2004 Aisha decided to take a year off and
embarked upon a world cruise, employing a part-time security guard, Ellen, to
check the premises each evening. On receiving a postcard from Aisha
informing her that she was extending her holiday, Ellen resigned her position
and, despite Aisha’s objections, re-opened the coffee house herself in
January 2006. Aisha has still not returned and Badbucks have now contacted
Todd seeking to buy the premises from him.
2
a) Advise the parties.

b) How, if at all, would your advice differ if title to the cafe was
unregistered?
General remarks
This was a standard adverse possession problem. Students should use their
conclusion to comment on the law they have applied and, for example, their opinion
as to whether the new regime in registered title is an improvement on the old
registered title regime under s.75 LRA 1925.
Law cases, reports and other references the examiners would expect you to
use
(LRA 1925, s.75), LRA 2002, Sch.6, LA 1980, Manchester Airport v Dutton, Pye v
Graham, Lambeth v Blackburn, Browne v Perry, Sze To Chun Keung v Kung Kwok
Wai David, Mount Carmel v Thurlow.
Common errors
Students often applied the pre-LRA 2002 rules of adverse possession based on
s.75 LRA 1925 even though it was clear from the original facts that 12 years of
adverse possession had not passed prior to 13 October 2003. Those who correctly
applied the LRA 2002 often failed to appreciate that under the new regime the clock
resets when there has been a dispossession by one squatter against another. In
unregistered land, although many appreciated that Todd’s title was extinguished,
many failed to realise that Aisha’s interest was still enforceable.
show a real understanding of how adverse possession works under the new regime
in registered title and according to first principles in unregistered title.
a) Despite the adverse possession beginning before the LRA 2002 came into
force, the problem comes squarely within Sch.6 LRA 2002 since 12 years
ofadverse possession was not completed prior to the Act coming into force
on 13 October 2003. Both factual possession and intent to possess surely
existed before the licence expired (as per Chadwick’s excellent dissent in
Manchester Airport v Dutton) and continued, but now adversely, once the
permission expired at the end of the licence (Pye v Graham). The intent is
not negated by Aisha’s willingness to pay rent (Lambeth v Blackburn)
although the clock resets if the letter amounts to a signed written
acknowledgement of Todd’s title (Browne v Perry). Does Aisha discontinue
possession in 2004 or continue it via the agency of Ellen (Sze To Chun
Keung v Kung Kwok Wai David)? Ellen’s resignation and opening of the
coffee shop looks like a dispossession, in which case the clock resets in
January 2006 under LRA 2002, Sch.6, para.11(2). In that scenario, Ellen
has not therefore completed the necessary minimum of 10 years (at the
time the question was asked in May 2015) and cannot therefore apply for
registration. Another possible, but unlikely, outcome would be if the court
took the view that by her inaction Aisha had in effect passed her
possessory title to Ellen, as arguably occurred in Mount Carmel v Thurlow,
in which case the periods of adverse possession can be aggregated and
the 10-year minimum period attained. Ellen would then be advised to apply
to be registered, at which point Todd is notified, given 3 months (65 working
days) to respond and, if he objects, given a further 2 years to initiate
possession proceedings unless there is an innocent boundary mistake,
estoppel or some other reason whereby Ellen can be registered
notwithstanding his objections. It might consequently be worth the
candidate answering in the alternative, so that they can show their facility
with the new process, after explaining which they think the court’s more
3
likely view on whether (as surely seems likely) a dispossession occurred
and the clock reset.
b) In unregistered land, the clock would not reset after Ellen dispossessed
Aisha, which means Todd’s title would be extinguished in January 2011,
after an aggregate of 12 years’ continuous adverse possession. Aisha, of
course, still has until January 2018 (i.e. 12 years from her dispossession) to
initiate possession proceedings against Ellen; unless the court takes the
unlikely view, as discussed above, that by her inaction she gave her
possessory title to Ellen and thus retains no rights in the land.
showed a poor understanding of the law or ability to differentiate what rules applied
to which scenario.
Student extract
Todd granted Aisha a licence. Licence can be bare licence, contractual
licence or licence by estoppel. Aisha’s offering of rent to Todd is akin to
creating a landlord-tenant relationship which requires rent, exclusive
possession and certainty of duration – Street v Mountford. Todd did not give
any reply to this offering.
Aisha has done her part on the disused café. If at all Badbucks is given the
café, Aisha can bring up the issue on proprietary estoppel. Cases involving
proprietary estoppel is Jennings v Rice, Powell v Benny, Sledmore v Dalby
and Henry v Henry (where the trial judge said there was no detrimental
reliance but the CA said there was).
Comment on extract
This answer is a bad fail. The law that is stated, whilst not wholly inaccurate, is
wholly irrelevant to answering the problem posed. Candidates are being tested on
how well they apply the law and citing irrelevant law gains no credit.
Question 2
‘There are good reasons for land law requiring the use of formalities such as
deeds and writing, but there are also convincing justifications for allowing
rights to be created informally by means such as constructive trust and
proprietary estoppel.’
How far do you agree with this view?
General remarks
This is a standard formalities question not unlike other asked in previous years. It
should therefore not take the candidate by surprise.
use
Sections 1 and 2 LP(MP)A 1989, ss.52 and 54 LPA 1925, ss.91 and 93 LRA 20002,
Yaxley v Gotts, Yeoman’s Row Management v Cobbe.
Common errors
Many candidates failed to answer the question and just wrote a clearly pre-prepared
answer on either formalities or, more often, constructive trusts and proprietary
estoppel generally.
critically consider, both why we require formalities and why we allow these
exceptions, in assessing whether the correct balance is, in the candidate’s opinion,
achieved. The essay should consequently explain when (and what) formalities are
4
needed to create or transfer legal estates and other interests and may also identify
some of the statutory exceptions, including those for short leases and the creation
and operation of constructive trusts. The first part of the quotation also offers
candidates the opportunity to critically assess the various ‘good reasons’ commonly
offered for land law’s insistence on specific formality rules including the provision of
evidence, avoiding fraud, maintaining certainty, reducing risk of accidental
transacting and the all-important channelling whereby non-lawyers are seamlessly
driven along legally prescribed routes via the formal requirement. It was also
permissible to stray beyond the narrowly legal to discuss how other agencies may
sometimes have an interest in formality requirements (such as tax authorities).
Candidates should also have recognised the role formalities play (especially before
registration of title) in making rights visible to prospective purchasers. Answers
should then have moved on to a critical consideration of what might be said to
justify the existence and operation of exceptions, particularly the two mentioned,
recognising the reality that sometimes it is unreasonable (and may even be unfair)
to deny rights that arise informally. Here, answers should have avoided a
generalised narrative of the case law on constructive trusts and proprietary
estoppel, offering instead a discriminating and selective response that moulded
knowledge to the precise terms of the question. This might, for instance, have
involved forays into the thorny issue of when/if proprietary estoppel can be used to
overcome the absence of compliance with s.2 of the Law of Property
(Miscellaneous Provisions) Act 1989.
simply wrote all they knew about formalities and/or the exceptions.
Student extract
In conclusion proprietary estoppel, constructive trusts and resulting trusts are
beneficial for creating rights in the land informally. Resulting trust applies
where a person contributes to the purchase price. Constructive trust is used
in giving effect to a common intention whereas proprietary estoppel arises
when there has been an unconscionable act. However proprietary estoppel
and constructive trusts play similar roles in the acquisition of interests in land
and allow rights to be created informally.
Comment on extract
This is a weak conclusion to a poor essay that made no attempt to address the
issue of formalities and offered little more than vague and often inaccurate
observations on constructive trusts, proprietary estoppel and (for no obvious
reason) resulting trusts. It is a clear fail.
Question 3
Last year Abe and Bee, a young couple, moved into a large, one bedroom flat
above a shop in Bow. The registered freehold of the property was owned by
Cleaneze plc, a cleaning company that used the shop as a launderette. In
2010 Cleaneze plc had entered into a forty year licence of the flat with Dot,
Bee’s mother who was the manager of the launderette.
Before moving in to the flat Abe and Bee each signed separate copies of an
identical document, although Abe signed his copy two days after Bee
because he was unexpectedly delayed on his return from holiday. Each
document included the following terms:
a) This agreement is a licence and will last for five years or until Dot
needs the flat back for her own occupation.
b) Abe and Bee shall pay an occupation charge of £200 per week.
5
c) Cleaneze plc will provide cleaning services every Sunday morning
between 9.00am and 11.00am.
d) Dot will retain keys to the flat.
e) Since Abe and Bee have lived in the flat the cleaning services have
been provided only once, even though Abe emailed Cleaneze plc
with a reminder.
Abe and Bee seek your advice about the status of their agreement. Advise
them.
General remarks
This problem question about leases raises a fairly standard array of issues on
establishing the existence of the hallmarks of a lease, exclusive possession and
certainty.
use
LPA 1925, Street v Mountford, Antoniades v Villiers, Bruton v London Quadrant
Housing, Prudential v LRB, Berrisford v Mexfield.
Common errors
A large minority of candidates failed to consider all the evidence, both formal and
informal, in establishing whether this was a lease or a licence.
consider and apply the ideas provided by Lord Templeman in Street v Mountford to
argue whether the agreement between Abe, Bee and Dot is a licence or a lease. In
addition, as the occupiers are a couple, it will be necessary to give advice on
whether or not A and B are joint tenants: Antoniades v Villiers et al. In doing this,
candidates are expected to draw on relevant judicial approaches to argue about the
impact of the various terms in the agreement that deal with: labelling; cleaning;
retention of keys; the different signing dates; and the need for them each to be
liable for the entire rent. Outside the terms of the agreement, other factors that merit
consideration include: the lack of cleaning provided (sham device?); the family
relationship between B and D; and the fact that D only has a forty-year licence of
the property (Bruton v London Quadrant Housing).
Exclusive possession aside, a further obstacle to finding a lease is whether clause
(a) establishes a term the maximum duration of which is sufficiently certain in the
Prudential v LRB sense. If the clause is interpreted to create a term of five years or
more, could Mexfield and s.149(6) LPA 1925 be applied or is the notion of a
determinable maximum duration of 90 years incompatible with facts in which Dot’s
interest will have expired long before? Perhaps the answer is that it is a
determinable 90-year lease that will determine on the tenants’ deaths or Dot
needing the flat for her own occupation or when her interest comes to an end. As
the agreement provides for payment, any advice to the effect that rent is a usual
rather than required element of a lease can be brief. Similarly, as it does not matter
much to the status of A and B’s agreement with D, there is no call for extensive
consideration of the differing formalities required for a legal (is the document a
deed?) rather than equitable lease.
evidenced a lack sensible planning and had often taken insufficient time to think
through the issues raised by the various clauses in the agreement.
6
Question 4
Zachary owned Greenmiles, a large estate where he ran a spa retreat
business. He sold Blackacre, a part of the estate with a large field and cottage
on it, to Yves. The deed contained the following covenants:
a) Only to use the cottage as residential premises.
b) To contribute to the upkeep of the drive which serves the cottage
and runs across Greenmiles estate.
c) To allow Zachary to use the large field for recreational purposes.
Last year Zachary sold the remaining part of Greenmiles to Aileen, a Frisbee
world champion who was looking for a large field in which to practice. Boris
has recently purchased Blackacre with the intention of opening a Paintball
business, using the cottage for storage and ticket sales. Boris now refuses to
pay towards the upkeep of the drive as he has constructed his own access
road directly to the main road across his field. He has also told Aileen that
she cannot use the field to practice her Frisbee throwing because of the
danger of accidents.
Advise Boris.
General remarks
This was not a particularly onerous problem although it did require some knowledge
of both covenants and easements.
use
Law of Property Act 1925, ss.78, Halsell v Brizell [1957], Federated Homes v Mill
Lodge Properties [1980], Roake v Chadha [1984], Tulk v Moxhay [1848], Re
Ellenborough Park [1956].
Common errors
A sizeable number of candidates assumed the question was only about covenants,
while a few answered it solely on the basis of easements.
be divided into three sections.
a) Is a restrictive covenant and the simple issue to determine is (as seems
likely) the benefit and burden pass.
b) Is a positive covenant and thus whilst the benefit might pass the burden
does not do so under Tulk v Moxhay, while mutual benefit and burden is
unlikely to come to Aileen’s aid given Boris’s alternative route.
c) This looks less like a covenant and more like an easement. As a covenant,
it would presumably be regarded as a purely personal obligation that does
not touch and concern Zachary’s land and/or was not intended that the
benefit would run. While any attempt to give effect to it as an easement
would surely fail for failure to accommodate the dominant tenement
(distinguishing Re Ellenborough) as being a purely personal right.
adopted a mechanical approach that failed to apply the law to the facts and simply
sought to display the candidate’s knowledge in the abstract.
7
Question 5
‘Although historically the creation of Equity the modern law of mortgages, at
least in the context of the residential home, is now governed primarily by
statute.’
Discuss.
General remarks
This is a standard essay question on mortgages that requires knowledge of both the
case law and the modern legislative framework.
use
Law of Property Act 1925, Administration of Justice Act 1970, Consumer Credit
Acts 1974, 2006, Financial Services and Markets Act 2000, Financial Services Act
2012, Biggs v Hoddinott [1898], Noakes v Rice [1902], Kreglinger v New Patagonia
Meat & Cold Storage [1914], Samuel v Jarrah Timber [1904], Reeve v Lisle [1902],
Knightsbridge Estates v Byrne [1912], Fairclough v Swan Breweries [1940],
Mortgage Services v Palk [1993], Cheltenham & Gloucester BS v Krauz [1997].
Common errors
A failure to direct students’, often impressive, level of knowledge to the question
asked.
The question requires a description of the equity of redemption and the various
rules by which it was established and maintained (e.g. clogs and fetters, collateral
advantage, unconscionable terms, etc. before assessing to what extent the various
statutory mechanisms that now apply (AJA, LPA, LRA, FSM, CCA) have usurped
Equity’s historic role. A good essay might contrast the substance that is still mainly
the preserve of Equity with the procedure which is very much that of statute.
Simply recited all the candidate knew about the law of mortgages.
Question 6
Charlie was the registered owner of Harrow Farm, which consisted of a
farmhouse set in a large field and a small cottage, Rose Mews, which sits in a
walled garden alongside the farmhouse. The front door of the cottage could
be accessed via a drive across the large field although there was an
alternative means of access via a narrow path that ran from the back door of
the cottage to the main road alongside the farmhouse. In 2008 Charlie granted
a five year lease of Rose Cottage and the walled garden to Dipak, a sculptor.
A few months after the lease was granted Charlie told Dipak he could use a
shed at the corner of the large field to store the stones he used for his
sculptures. When the lease came to an end in 2013 it was renewed for a
further five year term. Charlie has now sold Harrow Farm to Eric, who wants
to build an extension to the farmhouse on the field. This will result in the shed
being demolished, the drive being blocked and the drains to Rose Mews,
which currently run under the field, being removed to make way for the
extension’s foundations.
Advise Dipak.
General remarks
Easement questions are usually quite predictable and will usually ask candidates to
apply the law relating to the substantive elements of an easement and the means
by which they might arise expressly or by implication.
8
use
LPA 1925, s.62, Wheeldon v Burroughs [1879], Wood v Waddington [2015], Ward v
Kirkland [1967], Hillman v Rogers [1998], Wheeler v Saunders [1995], Millman v
Ellis [1996], Platt v Crouch [2003], Batchelor v Marlow [2001], Moncrief v Jamieson
[2007], R Square Properties v Nissan Motors [2014], Peckham v Ellison [1998], Re
Dodd [1843].
Common errors
Candidates quite often recited the general law in some detail before attempting to
apply it to the facts. Please remember our oft repeated advice, candidates should
apply the law to the facts from the outset and will get little, if any, credit for rote
learnt bookwork at the beginning of a problem question. That is because,
particularly in problem questions, we are testing the application of knowledge and
not simply its recall.
be divided into three sections and, in the absence of any express grant of an
easement, ask:
i) Will an easement regarding the right of access arise by necessity (unlikely
although note the narrowness of the alternative access and the issue of
vehicular access); common intention (would this be easier to establish than
necessity re vehicular access?), or Wheeldon v Burroughs (what evidence
would need to be established?)?
ii) Is this right of storage capable of being an easement or is it too
possessory? Assuming it is capable of being an easement, it clearly did not
arise by implication from the outset but expressly ‘a few months later’. In
the absence of the requisite formalities being complied with at that point, it
appeared to initially be just a licence but might it have been transformed
into an easement via s.62 on renewal of the lease?
iii) Does the easement of drainage arise under necessity (possibly), common
intention (surely) or Wheeldon v Burroughs (likely).
jumped between issues and failed to address all the issues concerning each
potential easement before moving on to the next.
Question 7
In its Third Report on Land Registration LC No.158 (1987) the Law
Commission stated that the class of unregistered rights that should bind a
purchaser should be ‘as narrow as possible’ and should only apply to rights
where it was ‘either not reasonable to expect or not sensible to require any
entry on register’.
To what extent has Schedule 3 of the Land Registration Act 2002 succeeded
in this aim?
General remarks
As with every essay question, the examiners want you to address the question
asked. That does not preclude you preparing for the exam by planning what you
would want to say regarding typical issues that might be raised, but does mean that
you should take time to plan your answer in response to the specific question
asked.
9
use
Third Report on Land Registration LC No.158, Law of Property Act 1925, s.2, Land
Registration Act 1925, s.70, Land Registration Act 2002 Schs 1 and 3, Chhokar v
Chhokar [1984], Hypo Mortgages v Robinson [1997], Williams & Glyns Bank v
Boland [1981], Abbey National v Cann [1991], Srand Securities v Caswell [1965],
Malory v Cheshire Homes [2002], Thompson v Foy [2009], Chaudhary v Yavuz
[2011], Ferrihurst v Wallcite [1999], Thompson v Foy [2009], Link Lending v Bustard
[2010], City of London BS v Flegg [1988], Kling v Keston Properties [1983] are all
some of the cases that you might refer to in a question such as this.
Common errors
Essay questions on registered land invariably attract a large number of pre-
prepared answers. Examiners do not respond well to such devices; and simply
topping and tailing a rote learnt answer with references to the question asked will
not fool us. Candidates should know what they think about the various issues on
which they are likely to be examined, but should not go into the exam hall with a
rote learnt pre-prepared answer.
briefly document how the 2002 Act has reduced the range of overriding interests
before looking at how the extent of those that remain has also been reduced. Can
the discoverability requirement under paras 2 and 3 be reconciled with these
principles or is it hard to justify why undiscoverable occupation or easements are
any less worthy of protection on that basis? Why should legal, but not equitable,
leases under 7 years merit protection under para.1, particularly given the more
strenuous formal requirements applicable to legal leases over 3 years, where
requiring the grantee to also use a notice would arguably not be that onerous or
impractical. Was Hypo Mortgages v Robinson deliberately reversed to give effect to
these principles or has the wording of para.2 unintentionally achieved that end by
seeming to suggest that those who cannot answer the question can now still be in
occupation in their own right and not simply as shadows of those who can?
offered generic answers on overriding interests or, even more broadly, on
registration of title generally.
Question 8
Five friends who met as accountancy students at West End College, Abi, Ben,
Cindy, Dev, and Eason, buy Re-Treat, a large house in the country as a
holiday home. They contribute equally to the purchase price. The legal title is
conveyed to them as joint tenants.
A year after Re-Treat is acquired Eason gets the others to agree that, in
addition to being a holiday home he may use the study at Re-Treat to re-
locate his newly established accountancy business. Last year Cindy’s
grandson, Gavin, came to live at Re-Treat when he started a three-year course
of treatment at a local specialist hospital.
Consider the effect if the following separate events occurred:
a) Abi agrees to sell her interest in Re-Treat to Freddie, before
changing her mind.
b) Cindy sends a postcard to the others saying that she desperately
needs money and therefore wants them to buy her share or else she
will have to sell it to a stranger. Before the postcard is delivered to
Re-Treat Cindy gets a text message telling her that the others have
10
been rushed to intensive care with food poisoning. She immediately

sends them all a text saying she has changed her mind about
selling.
c) Ben and Dev want Re-Treat to be sold because they no longer need it
as a holiday home. Cindy and Eason disagree. Cindy is concerned
about Gavin and Eason wants to stay on at Re-Treat because his
business is flourishing.
d) Eason is declared bankrupt and, Hannah, his Trustee in Bankruptcy
wants Re-Treat to be sold.
General remarks
Co-ownership problem questions invariably adopt a scenario of this type and a well-
prepared candidate should not be surprised by most, if not all, the issues raised.
use
Law of Property Act 1925, Trust of Land and Appointment of Trustees Act 1996,
Insolvency Act 1986, Re Drapers Conveyance [1969], Harris v Goddard [1983],
Kinch v Bullard [1998], Williams v Hensman [1861], National Bank v Achapong
[2003], Bank of Ireland v Bell [2001], Mortgage Corporation v Shaire [2001].
Common errors
A failure to address the issues chronologically and the inclusion of unhelpful
diagrams that, if properly utilised, can, on the contrary, be a very useful means of
illustrating an answer.
be divided into four sections.
a) Given the equal contributions and the absence of an express declaration,
there is a joint tenancy at law and in equity. Under s.34(2) LPA, the first four
named in the conveyance (presumably Abi, Ben, Cindy and Dev)
consequently hold on a beneficial joint tenancy for themselves and Eason.
In the absence of statutory severance, we need to consider the three
common law methods under Williams v Hensman. There is no possibility of
severance under either the head of mutual agreement, nor mutual conduct,
as not all the joint tenants were involved. While Abi’s agreement with
Freddie will only amount to severance under acting upon her ‘share’ if the
agreement constitutes an irrevocable act and thus is a specifically
enforceable signed and written contract complying with s.2 LP(MP)A 1989.
b) The postcard addressed to the other co-owners qualifies as a s.36 notice
provided the wording showed an immediate and binding intention to sever
(Harris v Goddard). It was delivered and therefore served whether sent by
normal or registered post under s.196(3) or (4). Some candidates
incorrectly asserted that the postcard was served when posted, which
sounds like the postal rule from contract law and has no application in this
context whether sent by normal or registered post. The most difficult issue
concerns whether the text withdrawing the notice was effective, which
required candidates to assess Neuberger J’s tentative view in Kinch.
c) Ben and Dev could apply under s 14 of ToLATA 1996 for a court order that
Re-Treat be sold. There are no guidelines on how the discretion will be
used, nor the s.15 factors prioritised (even if the obiter in Shaire has some
value, it does not help in this situation as there are no secured creditors
involved). The two most obvious and relevant factors from the non-
exhaustive list under s.15 are the purpose of the trust and Gavin’s welfare.
11
The original purpose, under s.15(1)(a), was to use the house as a holiday
home. Although that no longer seems to be viable, candidates should
question whether the arrival of Eason’s accountancy business and Cindy’s
grandson meant that the court could be persuaded to identify the purpose
more broadly under s.15(1)(b). Although, under s.15(1)(c), the welfare of a
minor is a relevant factor in its own right, Achamapong established that little
weight should be given to that fact without specific evidence of how Gavin’s
welfare will be affected by a sale. However, as his treatment at the local
hospital is limited to three years, asking for a postponement for the
remaining two years is a possibility, especially as there are no creditors
being kept from their money. It might also be possible to adopt a Shaire/Bell
type solution with Eason and Cindy buying the others out; while, if that is
not financially possible, the fact Re-Treat is Ben and Dev’s holiday home
and they appear to have no pressing financial need for a sale themselves,
could be another factor to which the court might have regard. On the whole,
it seems likely that the court would be persuaded to delay the sale but
probably for no longer than the time it takes to finish Gavin’s course of
treatment.
d) If Hannah, as Eason’s trustee in bankruptcy, applied for a sale under s.14
of TOLATA, the s.15 criteria are supplanted by those detailed under the
Insolvency Act 1986, s.335A. Under these criteria, the creditor’s interests
are, after one year and in the absence of exceptional circumstances,
deemed to outweigh all others. Gavin’s hospital treatment might be
regarded as exceptional and the fact the treatment is time limited might
again help Cindy postpone sale for a while.
failed to apply either the case law or statute with sufficient precision or clarity and
tended to throw all they knew at every aspect of the problem without planning how
best to marshal and direct their knowledge.
12
LA3003 Property Law – Zone B
Introduction
As in previous years, the examiners were all too aware of large numbers of
students who, despite evident hard work, failed to achieve their potential because of
poor technique. Please remember the exam is not a test of knowledge but of the
application of knowledge and, before considering the substantive advice on each
question below, make sure you have assimilated the following general advice.
alternate lines as this invariably makes reading (and therefore marking!)
easier.
hone your skills before the exam by reading articles and cases while
the internet.
not and just irritates the examiner! Focus on the question asked, and the
have said in your essay! Here is your chance to reflect on what went before
1
number of possible ratios on which jurists might well disagree, while those
lawyers rich!
spending on your last answer!
writing a judgment that has come to you in a case stated form. You are
there to apply the law to the given facts, willing to reject first instance
decisions, overturn CA precedents and, although nominally bound by
HL/SC decisions, still able to criticise or distinguish them.
juristic writings).

Question 1
In January 1999, Aisha came across a disused cafe, the title to which was
registered. Aisha wrote to the cafe’s owner, Todd, asking to rent it for a short
period so that she could try opening a coffee house. Todd told Aisha that he
was waiting until the market picked up and he would then develop the
premises. However, he agreed to grant her a licence until June 1999 so that
they could both gauge whether it was viable as a coffee house. At the end of
the licence Aisha had attracted a large and loyal clientele and wrote to Todd
offering to pay rent but did not receive a reply. Aisha continued to run the
coffee house and Todd finally wrote to her in 2003 offering to grant her a
lease but she ignored the letter. In 2004 Aisha decided to take a year off and
embarked upon a world cruise, employing a part-time security guard, Ellen, to
check the premises each evening. On receiving a postcard from Aisha
informing her that she was extending her holiday, Ellen resigned her position
and, despite Aisha’s objections, re-opened the coffee house herself in
January 2006. Aisha has still not returned and Badbucks have now contacted
Todd seeking to buy the premises from him.
2
a) Advise the parties.

b) How, if at all, would your advice differ if title to the cafe was
unregistered?
General remarks
This was a standard adverse possession problem. Students should use their
conclusion to comment on the law they have applied and, for example, their opinion
as to whether the new regime in registered title is an improvement on the old
registered title regime under s.75 LRA 1925.
use
(LRA 1925, s.75), LRA 2002, Sch.6, LA 1980, Manchester Airport v Dutton, Pye v
Graham, Lambeth v Blackburn, Browne v Perry, Sze To Chun Keung v Kung Kwok
Wai David, Mount Carmel v Thurlow.
Common errors
Students often applied the pre-LRA 2002 rules of adverse possession based on
s.75 LRA 1925 even though it was clear from the original facts that 12 years of
adverse possession had not passed prior to 13 October 2003. Those who correctly
applied the LRA 2002 often failed to appreciate that under the new regime the clock
resets when there has been a dispossession by one squatter against another. In
unregistered land, although many appreciated that Todd’s title was extinguished,
many failed to realise that Aisha’s interest was still enforceable.
show a real understanding of how adverse possession works under the new regime
in registered title and according to first principles in unregistered title.
a) Despite the adverse possession beginning before the LRA 2002 came into
force the problem comes squarely within Sch.6 LRA 2002 as 12 years of
adverse possession was not completed prior to the Act coming into force on
13 October 2003. Both factual possession and intent to possess surely
existed before the licence expired (as per Chadwick’s excellent dissent in
Manchester Airport v Dutton) and continued, but now adversely, once the
permission expired at the end of the licence (Pye v Graham). The intent is
not negated by Aisha’s willingness to pay rent (Lambeth v Blackburn)
although the clock resets if the letter amounts to a signed written
acknowledgement of Todd’s title (Browne v Perry). Does Aisha discontinue
possession in 2004 or continue it via the agency of Ellen (Sze To Chun
Keung v Kung Kwok Wai David)? Ellen’s resignation and opening of the
coffee shop looks like a dispossession in which case the clock resets in
January 2006 under LRA 2002, Sch.6, para.11(2). In that scenario, Ellen
has not therefore completed the necessary minimum of 10 years (at the
time the question was asked in May 2015) and cannot therefore apply for
registration. Another possible, but unlikely, outcome would be if the court
took the view that by her inaction Aisha had in effect passed her
possessory title to Ellen, as arguably occurred in Mount Carmel v Thurlow,
in which case the periods of adverse possession can be aggregated and
the 10-year minimum period attained. Ellen would then be advised to apply
to be registered, at which point Todd is notified, given 3 months (65 working
days) to respond and, if he objects, given a further 2 years to initiate
possession proceedings unless there is an innocent boundary mistake,
estoppel or some other reason whereby Ellen can be registered
notwithstanding his objections. It might consequently be worth the
candidate answering in the alternative, so that they can show their facility
with the new process, after explaining which they think the court’s more
3
likely view on whether (as surely seems likely) a dispossession occurred
and the clock reset.
b) In unregistered land, the clock would not reset after Ellen dispossessed
Aisha, which means Todd’s title would be extinguished in January 2011,
after an aggregate of 12 years’ continuous adverse possession. Aisha, of
course, still has until January 2018 (i.e. 12 years from her dispossession) to
initiate possession proceedings against Ellen; unless the court takes the
unlikely view, as discussed above, that by her inaction she gave her
possessory title to Ellen and thus retains no rights in the land.
showed a poor understanding of the law or ability to differentiate what rules applied
to which scenario.
Question 2
‘The law determining whether something is or is not a fixture is unnecessarily
complicated. It is hardly surprising that the cases are so difficult to reconcile.’
Discuss.
General remarks
This is an essay question on fixtures, one of the areas you are asked to investigate
in Chapter 1 of the subject guide. However, as this question was hardly attempted
by any candidates, we are going to go into more detail than is usual in the general
remarks. Whether something is or is not a fixture is determined by the application of
two tests: the degree of annexation and the purpose of annexation. Let us begin
with the first and try to work out why we bother to utilise such a simplistic approach
at the outset. Calling it simplistic sounds like a criticism but in fact that is the very
reason why we use it! Put simply, the annexation test is pretty black or white,
something is or is not attached to the land; and while there might occasionally be a
few doubts, generally we will have no problem in deciding whether or not something
is deemed to be a fixture by applying that criteria. It is important to acknowledge
that simple tests are extremely important for they are certain, easy/swift to apply
and, as a consequence, cheap to administer for there is little room for argument.
Provided they achieve the right result, they are therefore very useful and non-
lawyers often ask why the law cannot always utilise black and white tests to provide
clear, unambiguous answers. The problem is, however, that while tests can be
black and white, life most certainly is not; there are many shades of grey that
cannot be addressed by a simple binary process (something you saw last year
when you studied criminal law and the inappropriately inflexible mandatory life
sentence for every type of murder; from serial killers to mercy killings!). One could
therefore simply reject black and white tests on this basis. However, in so doing, we
would be throwing the baby out with the bath water; by forsaking all the advantages
we began by listing. Provided the black and white test usually gives the right result it
would be ludicrous to reject it simply because it occasionally fails so to do.
In contrast to the degree of annexation, the purpose of annexation test is far more
nuanced. Such tests are extremely important to the law as they allow us to do
justice when faced with the complexities of a world where we often encounter
various shades of grey. But justice in this form comes at a high price as this form of
test lacks the same degree of certainty, is harder/slower to apply and expensive to
administer for there is much room for argument. One could, therefore, simply reject
this approach on that basis but it would again seem ludicrous to abandon a test that
works; particularly when it does so in exactly those situations where the black and
white test fails to provide a sensible solution. So how do we square this circle to
achieve both justice and certainty? The answer of course, as we have already seen,
4
is to employ both tests. Thus the simple quick and certain test is applied first.
Usually, that gives the right result and we stop there and stick with the presumption.
While if it is contended that an injustice has occurred and the wrong result achieved
(e.g. an ornamental garden comprising statues resting by their own weight), the
burden of proof is placed on the party seeking to remedy that injustice. In reality it is
a compromise between certainty and justice. The application of one or other test
would maximise one factor to the detriment of the other; only by employing both
tests in this way do we achieve a degree of certainty and justice which, in sum,
achieves more than the maximum either would achieve individually.
We could stop there but I would like you to take two further steps in this analysis for
what I have offered you is arguably an idealised account. First, the application of
the second test is more problematic than I have admitted. Not only is the purpose
test nuanced, it is also subjective for, despite the fact the court is seeking to find the
objective purpose of the annexation (and not the subjective intent of the person who
made the annexation), it is still subjective because different judges will come to
different decisions on the same facts; that is why the case law in this area is
inconsistent. We consequently pay a high price for such subtlety and risk achieving
justice via the injustice of inconsistent judgments. Secondly, I would ask you to be
really critical for a moment; could you argue what has gone before is little more than
smoke and mirrors? Try reading TSB v Botham and look at what really happens in
the case for, while purporting to apply the two tests, doesn’t the court simply seek to
achieve what, in its view, the market expects (a point also made by Blackburn
toward the end of his judgment in Holland). After all, the second test presents a
false dichotomy as to whether the thing was placed there to improve the thing or to
improve the land when in reality it is both (in the sense that the thing and its location
are important to the enjoyment of each) and neither (in the sense that it is not the
land nor the thing that is improved but the users’ enjoyment of each that is
enhanced). In short, one can get to the result one wants simply by changing how
one phrases the question and/or answer.
use
Holland v Hodgson [1872], Botham v TSB [1996], Hamp v Bygrave [1983], Leigh v
Taylor [1902], Berkely v Poulett [1977], Elitestone v Morris [1997], D’Eyncourt v
Gregory [1866] although there are many more you could use instead.
Common errors
There were too few attempts to enable us to establish any consistent common
errors, apart to note that most of the candidates who attempt the question assumed
it was about something quite different!
consider the two rules, namely the degree and purpose of annexation and explain
how the first raises a presumption that might be rebutted by application of the
second. The case law should be examined to reveal to what extent, if at all, the
case law is reconcilable. Good essays will explore the difference between the tests
and explain why a simple test combined with a complex one can best address the
issues involved and/or whether this is a smoke screen behind which lurks judicial
discretion and whimsy.
would describe the two tests with no real attempt to explain how they interrelate.
Question 3
‘Even though the approach established in Street v Mountford (1985) to
determine whether exclusive possession exists is less important these days,
5
it is workable and sensible for single occupiers. It has, however, proved to be
problematic when it comes to cases involving joint occupiers.’
Discuss.
Do you think establishing exclusive possession should be enough for a valid
lease to exist?
General remarks
Despite initially focusing only on exclusive possession, this question ultimately
requires students to cover certainty of term in their answer by including a second
element in which it would also be advisable to consider the third probative
ingredient, rent.
use
Law of Property Act 1925, Street v Mountford [1985], AG Securities v Vaughan
[1990], Antoniades v Villiers [1990], Ashburn Anstalt v Arnold [1989], Bruton v
London Quadrant [1999], Facchini v Bryson [1952], Mikeover v Brady [1989], Lace
v Chantler [1944], Re Midland Railway Agreement [1971], Ashburn Anstalt v Arnold
[1989], Prudential Assurance v London Residuary Body [1992], Berrisford v
Mexfield [2012].
Common errors
Many students only covered exclusive possession and ignored (or failed to see!) the
words beyond ‘discuss’.
engage throughout with the precise terms of the quotation. This may start by
acknowledging that nowadays the statutory protection for residential
accommodation means that landlords are far less likely to be concerned with trying
to create licences than they perhaps were at the time Street v Mountford was
decided. In addition, one hook in the question (workable and sensible) is looking for
answers to show a critical perspective on the operation of Lord Templeman’s
approach to sole occupiers. This may be by exploring his distinction between
lodgers and tenants and by identifying those exceptional instances when a lease
will not be found even though exclusive possession is said to exist. Another fruitful
area for discussion might draw on the case law about the extent of the services that
may confer a licence and the development of the ideas of shams and pretences. All
this, of course, goes to show that much of the accent in Lord Templeman’s
judgment is on residential accommodation – the lodger idea does not readily
translate to commercial leases and it may therefore be valuable for answers to
consider judicial approaches to the issue in the business setting (Clear Channel UK
v MCC). As for the second strand, in the quotation that asks about cases of multi-
occupation, answers may choose some or all of the following: the problems
highlighted by the differing circumstances of the joint occupiers in Antionades and
AG Securities; the difficulties in applying the distinction in difficult/borderline
circumstances (Stribling v Wickham); and the trickiness of trying to reconcile
Antionades with awkward decisions (Mikeover v Brady). This may lead candidates
to question the value and role of the four unities. The second rubric points to a
discussion of the other requirement that a lease must satisfy, the need for, and
prevailing approach in Prudential and Mexfield to, the certainty of term.
failed to address the specific question and simply wrote generalised pre-prepared
answers that had clearly been written and rote learnt before the exam.
6
Student extract
The only estates in land which are capable of subsisting or being conveyed
or created at law are an estate in fee simple absolute in possession and a
term of years absolute. Lease is different from licence because if the tenant is
granted a lease they will be protected under the Rent Act but this will not
happen if it is a licence. A lease is said to be granted if the requirements are
satisfied which are the term is certain, there is exclusive possession and
formalities.
The main concern for leases is always about the exclusive possession
because we say that whether a person has a stake in the room or property.
Landowners always included sham devices so that licence is granted instead
of a lease. In Lace v Chantler there was no certainty of term so there could
not be a lease granted for the duration of the war.
If the term is certain, then the requirement of exclusive possession is
considered whether satisfied in each case. This requirement is laid down in
Long v Gowlett which was reaffirmed in the case of Sovmots Investments v
SS for the Environment. Lord Denning held that the nature and quality of
occupancy is the main thing taken into account, not the labels the parties put
to it.
Comment on extract
This is a poor answer with a vague, generalised and inaccurate approach that fails
to address the question or give any indication that the candidate understands the
issues. There is little point citing cases from the law of easements to support the
broadly correct reference to Lord Denning where reference might more accurately
have been made to Facchini v Bryson [1952]. Whilst the reference to the Rent Acts
is completely anachronistic as landlords have been able, for over thirty years, to
grant leases that are not subject to such controls (which, of course, is why the case
law on the lease/licence distinction is not as vibrant as it once was). An answer like
this would not achieve a pass mark.
Question 4
Zachary owned Greenmiles, a large estate where he ran a spa retreat
business. He sold Blackacre, a part of the estate with a large field and cottage
on it, to Yves. The deed contained the following covenants:
a) Only to use the cottage as residential premises.
b) To contribute to the upkeep of the drive which serves the cottage
and runs across Greenmiles estate.
c) To allow Zachary to use the large field for recreational purposes.
Last year Zachary sold the remaining part of Greenmiles to Aileen, a Frisbee
world champion who was looking for a large field in which to practice. Boris
has recently purchased Blackacre with the intention of opening a Paintball
business, using the cottage for storage and ticket sales. Boris now refuses to
pay towards the upkeep of the drive as he has constructed his own access
road directly to the main road across his field. He has also told Aileen that
she cannot use the field to practice her Frisbee throwing because of the
danger of accidents.
Advise Boris.
General remarks
This was not a particularly onerous problem although it did require some knowledge
of both covenants and easements.
7
use
Law of Property Act 1925, s.78, Halsell v Brizell [1957], Federated Homes v Mill
Lodge Properties [1980], Roake v Chadha [1984], Tulk v Moxhay [1848], Re
Ellenborough Park [1956].
Common errors
A sizeable number of candidates assumed the question was only about covenants,
while a few answered it solely on the basis of easements.
be divided into three sections.
a) Is a restrictive covenant and the simple issue to determine is (as seems
likely) the benefit and burden pass.
b) Is a positive covenant and thus whilst the benefit might pass the burden
does not do so under Tulk v Moxhay, whilst mutual benefit and burden is
unlikely to come to Aileen’s aid given Boris’s alternative route.
c) This looks less like a covenant and more like an easement. As a covenant,
it would presumably be regarded as a purely personal obligation that does
not touch and concern Zachary’s land and/or was not intended that the
benefit would run. While any attempt to give effect to it as an easement
would surely fail for failure to accommodate the dominant tenement
(distinguishing Re Ellenborough) as being a purely personal right.
adopted a mechanical approach that failed to apply the law to the facts and simply
sought to display the candidate’s knowledge in the abstract.
Question 5
How far do you agree with the view expressed by Lord Phillips MR in Jones v
Morgan (2001) that the doctrine of a clog on the equity of redemption is an
‘appendix to our law which no longer serves a useful purpose and would be
better excised’?
General remarks
Most questions on mortgages require candidates to address case law and statute
and this essay is no exception.
use
Meat & Cold Storage [1914], Samuel v Jarrah Timber [1904], Reeve v Lisle [1902],
Common errors
A failure to consider the increasingly important statutory framework under which
mortgages, in particular residential mortgages, operate.
examine the case law on the different circumstances in which a mortgage might be
found to have been clogged and consider why this is thought to be objectionable.
This could take the direction of demonstrating a lack of clarity and consistency in
the cases about when and why a provision should be seen as a clog (Samuel v
Jarrah and Kreglinger). Here, it may be that answers will identify tendencies to
8
narrow the scope of the rule (Biggs v Hoddinot), some of which seem to play with
technicalities (Reeve v Lisle). Good answers may highlight judicial voices that have
expressed an anxiety over the tension between clogs and freedom of contract. In all
this, Lord Phillip’s approach picks up long-standing concerns. These may be seen
as recognising that the protectionist instincts underpinning the prohibition of clogs
may be based upon unwarranted assumptions of the mortgagor’s vulnerability,
which, even if once justifiable, may be out of step with the environment in which
mortgage lenders operate today – particularly in the context of home buying.
Answers may also evaluate what alternative causes of action or codes of conduct
may offer sufficient protection.
simply described the clogs and fetters case law.
Question 6
Charlie was the registered owner of Harrow Farm, which consisted of a
farmhouse set in a large field and a small cottage, Rose Mews, which sits in a
walled garden alongside the farmhouse. The front door of the cottage could
be accessed via a drive across the large field although there was an
alternative means of access via a narrow path that ran from the back door of
the cottage to the main road alongside the farmhouse. In 2008 Charlie granted
a five year lease of Rose Cottage and the walled garden to Dipak, a sculptor.
A few months after the lease was granted Charlie told Dipak he could use a
shed at the corner of the large field to store the stones he used for his
sculptures. When the lease came to an end in 2013 it was renewed for a
further five year term. Charlie has now sold Harrow Farm to Eric, who wants
to build an extension to the farmhouse on the field. This will result in the shed
being demolished, the drive being blocked and the drains to Rose Mews,
which currently run under the field, being removed to make way for the
extension’s foundations.
Advise Dipak.
General remarks
Easement questions are normally quite predictable and will usually ask candidates
to apply the law relating to the substantive elements of an easement and the means
by which they might arise expressly or by implication.
use
LPA 1925, s.62, Wheeldon v Burroughs [1879], Wood v Waddington [2015], Ward v
Kirkland [1967], Hillman v Rogers [1998], Wheeler v Saunders [1995], Millman v
Ellis [1996], Platt v Crouch [2003], Batchelor v Marlow [2001], Moncrief v Jamieson
[2007], R Square Properties v Nissan Motors [2014], Peckham v Ellison [1998], Re
Dodd [1843].
Common errors
Candidates quite often recited the general law in some detail before attempting to
apply it to the facts. Please remember our oft repeated advice, candidates should
apply the law to the facts from the outset and will get little, if any, credit for rote
learnt bookwork at the beginning of a problem question. That is because,
particularly in problem questions, we are testing the application of knowledge and
not simply its recall.
be divided into three sections and in the absence of any express grant of an
easement ask:
9
i) Will an easement regarding the right of access arise by necessity (unlikely
although note the narrowness of the alternative access and the issue of
vehicular access); common intention (would this be easier to establish than
necessity re vehicular access?), or Wheeldon v Burroughs (what evidence
would need to be established?)?
ii) Is this right of storage capable of being an easement or is it too
possessory? Assuming it is capable of being an easement, it clearly did not
arise by implication from the outset but expressly ‘a few months later’. In
the absence of the requisite formalities being complied with at that point, it
appeared to initially be just a licence but might it have been transformed
into an easement via s.62 on renewal of the lease?
iii) Does the easement of drainage arise under necessity (possibly), common
intention (surely) or Wheeldon v Burroughs (likely).
jumped between issues and failed to address all the issues concerning each
potential easement before moving on to the next.
Question 7
Pippin purchases the registered freehold title of Russet, a small fruit farm,
from Victoria for £800,000. Russet includes a house, an orchard and a large
barn. Pippin did not visit Russet before buying it at auction, only viewing it in
the online auction catalogue.
When Pippin arrives at Russet for the first time he finds that the barn is
occupied by Cox, who is using it as part of his cider-bottling business. Cox
claims to have a deed giving him a five year lease of the barn. He also tells
Pippin that he holds an option to buy the freehold title of the barn.
Pippin meets Bramley, Victoria’s grandson, in the kitchen of the house.
Bramley is a basketball prodigy who plays for the Royal Galas, London’s
leading basketball team. Bramley explains that he lives at Russet, and he is
just back from spending the last six months at the Royal Galas’ residential
training academy in London. He tells Pippin that he used the fee the Royal
Galas paid him when he joined them to help Victoria buy Russet.
Pippin sees William, a neighbouring farmer, walking through the orchard to
reach the main road. William claims that he has the right to do so.
a) Advise Pippin.
b) How would your answer differ if Pippin’s purchase of the freehold
title to Russet could be governed by the rules of unregistered land
law?
General remarks
As Pippin is a purchaser (for valuable consideration) of Victoria’s registered title in
Russet, s.29 LRA 2002 offers a sensible jumping-off point for advice on whether the
competing interest belonging to Cox, Bramley and William continue to be
enforceable. This puts the emphasis on determining the priority of their interests.
There is more than enough to say about the enforceability of their respective
interests (especially when the second rubric asks about the comparable position in
unregistered land); and there is really nothing in the factual information that enables
a full-scale consideration of whether or not the interests of the others (lease;
beneficial interest and lease) match the legal characteristics for such interests.
10
use
Law of Property Act 1925, s.2, Land Registration Act 1925, s.70, Land Charges Act
1972, Law of Property (Miscellaneous Provisions) Act 1989, Land Registration Act
2002 Schs 1 and 3, Chhokar v Chhokar [1984], Hypo Mortgages v Robinson [1997],
Williams & Glyns Bank v Boland [1981], Abbey National v Cann [1991], Strand
Securities v Caswell [1965], Malory v Cheshire Homes [2002], Thompson v Foy
[2009], Chaudhary v Yavuz [2011], Ferrihurst v Wallcite [1999], Link Lending v
Bustard [2010], City of London BS v Flegg [1988], Kling v Keston Properties [1983],
Kingsnorth v Tizard [1986].
Common errors
The question is about priorities and not about the requirements of a valid lease,
option or deed yet many students spent most, and sometimes all, their time on what
are mostly irrelevant points.
realise that the status of Cox’s lease is pretty straightforward. As a grant of five
years, it is protected as an unregistered interest that overrides P’s registered title:
Sch.3, para.1 (Sch.3 rather than Sch.1 because this is a clearly a subsequent
disposition). Even if C had not protected his estate contract by entering a notice
against Victoria’s registered title, it can still gain priority by C showing he is in actual
occupation of the barn (and it is obvious): Sch.3, para.2.
Bramley’s financial contribution forms the basis of his claim to a beneficial interest,
one that might have been protected on the register via a restriction. On the
assumption that he did not do so, the advice needs to work through the issues
provided by para.2 systematically as far as the facts and/or reasonable deductions
from them allow. If B is a minor and if previous judicial opinion on s.70(1)(g) of the
LRA 1925 (Hypo-Mortgage Services v Robinson) is followed, then it is arguable that
he cannot claim to be in actual occupation even if he is close to the age of majority.
Otherwise, his six months’ absence at training camp – probably during the period
when P completed/registered her purchase of Russet – allows for consideration of
his claim to be in actual occupation (Link Lending v Bustard; Thompson v Foy) and
whether it was obvious on a reasonably careful inspection.
The mode of creation of William’s easement is factually ambiguous. Advice can
therefore legitimately consider those possibilities for which the land registration
principles make different provision. If it is an expressly created legal easement, its
priority depends upon registration; as an equitable easement it should have been
protected by entry of a notice on the register (failing which it is unlikely to be able to
override via actual occupation). If it is an impliedly created legal easement, it may
come within Sch.3, para.3.
Determining the priority of each claimant’s rights according to the rules of
unregistered land calls for advice to the effect that: the legal property rights
automatically bind P; an equitable easement and Cox’s option depend upon having
been actively protected as land charges; and constructive notice (Caunce and
Tizard) applied because P has failed to overreach B’s beneficial interest.
concentrated on the validity of the subsidiary interests rather than the issue of
priority or showed little real understanding of how the rules of priority worked. With
each passing year, the examiners are increasingly mystified (but no longer
surprised!) as to why so many students seek to apply the Land Charges Act in the
context of registered title, where it has no application.
11
Student extract
This is a question on registration and Pippin would like to know whether she
is bound by the interests of Victoria, Cox and Bramley.
C has a deed granting a 5 year lease complying with LPA 1925 s.52. C
therefore has a legal lease that does not need to be registered because it is
an overriding interest under LRA 2002 Sch 3 Para 1. This holds that legal
leases up to 7 years can bind third parties without the need to register. P is
therefore bound by C’s legal lease of 5 years.
C also has an option to purchase the barn. The question is silent as to
whether the option is oral or in writing.
If the option is oral then it is not valid as it does not comply with LP(MP)A
1989 s.2 which requires a contract relating to land to be in writing, contain all
the terms and signed by both parties.
If the option is in writing and complies with s.2 it is a valid option but C is
required to protect it by entering a notice (LRA 2002 s.32). Under s.27 a
failure to register it renders it void against the purchaser unless C can rely on
it being an overriding interest under Sch 3 para 2, if there is an interest
coupled with discoverable occupation.
C is an interest holder as she has a valid option (aka as an estate contract).
We now have to ask if she was in occupation and if she was (but not
otherwise) we need to establish whether either: the occupation was
discoverable by P; or the interest was known to P. If C was in discoverable
occupation or was in occupation and had an interest of which P was aware, P
will be bound by that interest unless C failed to disclose it when P inquired in
circumstances where C could reasonably be expected to reveal it.
Comment on extract
This is an extract from an excellent essay that immediately states what the problem
is about and begins addressing the issues with a clear and precise approach that
displays an impressive command of the rules of registered conveyancing. An
answer that continued in this vein would be awarded a first class mark.
Question 8
In January 2014 Anna, Barry, and Barry’s mother, Carol, bought a house
together for them all to live in. They contributed unequal amounts to the
purchase price of the property and the property was conveyed to all three of
them as legal and beneficial joint tenants.
In October, Barry told Anna and Carol that he was having an affair with Donna
and that he wanted to sell his interest in the house so that he and Donna
could buy a new home together. The three of them discussed the possibility
of Carol buying Barry’s interest in the house. Barry and Carol settled on a
price. The next day Carol told the others she was unable to go ahead with the
purchase because her financial adviser had said she had insufficient funds.
A week later Anna sent Barry and Carol an email telling them she was
‘severing her beneficial interest in the house with immediate effect’. However
a problem with her internet connection resulted in the message being held in
a queue for 48 hours before being delivered. In the meantime Anna heard that
Barry had been rushed into hospital. She immediately left a note for Barry and
Carol on the hall table telling them to ignore her email because she had
changed her mind. Barry died the following day. In his will Barry left all his
property to Donna.
12
In January 2015 Carol was diagnosed with a rare medical condition. She
mortgaged her interest in the house to the East Bank to pay for a private
therapy room to be built in the garden. By May 2015, Carol had defaulted on
the mortgage repayments as she was forced to give up her job because of her
illness.
Anna and Carol want to stay in the house but East Bank want it to be sold.
a) Advise East Bank whether the property is likely to be sold, and if so,
who is entitled to the proceeds of sale and in what shares.
b) How, if at all, would your answer differ if Carol had been declared
bankrupt?
General remarks
This is a standard co-ownership question which remains one of the most popular
questions in the exam. Although good diagrams can enhance an answer, too many
students offer incoherent diagrams that further obscure the points they are seeking
to make.
use
Law of Property Act 1925, Trusts of Land & Appointment of Trustees Act 1996, Re
Drapers Conveyance [1969], Harris v Goddard [1983], Kinch v Bullard [1998],
Goodman v Gallant [1986], EON UK Plc v Gilesports Limited [2012], Williams v
Hensman [1861].
Common errors
Students often fail to work thorough the events sequentially which really is the only
way to address a problem such as this.
appreciate that identifying the beneficial co-owners and their shares in the proceeds
of sale in 2015 involves establishing the original position before tracking what if any
changes may have taken place by severance as a result of the intervening events.
There is no evidence to displace the effect of the explicit 2014 declaration that the
three are legal and beneficial owners – making recourse to presumptions and the
fact of unequal contributions irrelevant.
With the prevailing state of authority, it seems difficult to see how Barry’s unilateral
declaration that he wants to sell as being enough to sever within the Williams v
Hensman categories. Similarly, even if Barry and Carol reached an informal
agreement to sell which Burgess v Rawnsley sees as a potential basis for implying
severance, it does not sever here as mutual agreement or course of dealing
because it does not involve all three joint tenants – nor can B rely on the informal
agreement to claim severance by acting on his own share.
There is scope to argue about whether an email is ‘a notice in writing’; but on the
basis that it may be then the content of Anne’s email clearly satisfies the judicial
gloss on s.36 requiring an immediate and binding intention to sever: Harris v
Goddard. That leaves the question of whether it has been given to the others and
when it is effective. Here, s.196 of the LPA 1925 is not in point. Email delivery and
the 48-hour delay also give a different context in which to consider the applicability
and correctness of Neuberger J’s tentative view in Kinch v Bullard that A can
withdraw the s.36 notice before it has been given/served. Donna’s claim to inherit
Barry’s interest will therefore depend on whether severance occurred before his
death – otherwise survivorship will have taken place. Carol’s mortgage has the
potential to effect severance if a joint tenancy still exists.
13
The final set of issues require arguments about the s.15 TOLATA factors – most
obviously, the purpose of the trust and the interests of the East Bank as secured
creditors – that may be weighed when the court considers whether or not to order a
sale. Here, and in the absence of the welfare of children, the voice of the secured
creditor is likely to be extremely powerful: Shaire and Bell. The alternative rubric
calls for the advice to shift focus to the different framework provided by the
Insolvency Act 1986 – where the central factual problem is that C, the co-owner
who wishes/needs to stay in the adapted house, is bankrupt.
often appeared to display knowledge of the various mechanisms by which a
severance of an equitable joint tenancy might be effected but were unable to apply
the rules accurately and/or consistently.
14

LLB
BSc DEGREES
Property Law
Permitted materials
Students are permitted to bring into the examination room the following
specified document: either one copy of Blackstone's Statutes on Property
Law (OUP) or one copy of Core Statutes on Property Law (Palgrave
Macmillan).
UL15/0622
Page 1 of 6
1. Downturn Council owns the registered freehold title of Upturn Manor.
Upturn Manor is one of a number of properties that Downturn Council
has left empty since the 1980s because of a lack of money. Upturn
Manor comprises a house, an outbuilding and extensive grounds.
Earlier this year Downturn Council decides to sell Upturn Manor to

generate income to allow it to convert other empty properties into
housing. Carson, Downturn Council’s surveyor, visits Upturn Manor. He
discovers that Bates is living in the house. Bates tells Carson that he
purchased the house from the Downturn Council in 1999. He shows
him a copy of the contract for sale and a receipt for the purchase price.
Carson also discovers Thomas, a local builder, locking the door to the
outbuilding. When Carson challenges him Thomas says that he has
“squatter’s rights” and explains that he first started to store his tools in
the outbuilding in 1990. Thomas points to the security cameras he
installed after his van was stolen in the mid-1990s. He assures Carson
that soon after he starting making use of the shed he emailed
Downturn Council offering to pay rent for the outbuilding; but he did not
receive a reply.
During his site visit Carson establishes that the boundary fence
between Upturn Manor and the neighbouring factory, Fabulous Foods,
appears to be located some distance from where it is shown on
Downturn Council’s plans. As a result a small part of Upturn Manor is
on the wrong side of the fence. Carson contacts the owner of Fabulous
Food, Isobel. Isobel explains how she erected the boundary fence after
a storm in 2000. The fence was put where her surveyor, who had
consulted Fabulous Foods’ plans, said it should be.
Advise Downturn Council as to whether Bates, Thomas or Isobel might

successfully apply to be registered as proprietor of that part of Upturn
Manor they occupy.
2. “The contemporary borderline between fixtures and chattels may now

be more case-specific and context-dependent than was once believed.”
(Elements of Land Law, Kevin Gray)
Discuss.
UL15/0622
Page 2 of 6
3. Last summer, after successfully passing his first year exams at
university, Harold’s mother Maude bought a house to rent to him and
his three friends Abdul, Owen and George. They each signed identical
documents, based on a standard ‘Lease Agreement’ bought from the
local stationers, but with the word ‘Lease’ crossed out and replaced
with the term ‘Licence’. The duration of each agreement was recorded
as “two years or one month after graduation” and the rent was set at
half the market rate. A term was also included stating that Harold’s
father, Chris, would be entitled to visit the property every week by prior
arrangement to clean the house and do any repairs. In fact Chris
misses his son so much that he often visits more frequently and
occasionally sleeps over when he misses the last train home.
(a) Maude has now been declared bankrupt and her trustee in
bankruptcy asks you to advise on the status of the four
agreements.
(b) How, if at all, would your advice differ in each of the following
alternative circumstances?
(i) No rent was payable under the agreements;
(ii) The house was owned and the lease granted by Maude’s
company which is now insolvent; and
(iii) Owen signed his agreement a week after the others.
UL15/0622
Page 3 of 6
4. Jack owned Gray Gables, a hotel and golf course set in substantial
grounds of nearly 200 hectares. In 2005 Jack sold a small plot of land
at the southernmost edge of Gray Gables to Hazel. Hazel wanted to
build a house on the plot. The plot was only accessible from the main
road by using 100 metres of the tarmac drive belonging to Gray
Gables. Hazel covenanted ‘with Jack, his successors in title to the
retained land, and for the benefit of owners of the neighbouring land’
that she would:
‘(a) pay half the cost of repairing and maintaining the 100
metres of Gray Gables’ driveway leading from the plot of
land being sold to the main road;
(b) keep the property in a neat and tidy condition; and
(c) not use the plot to cause a nuisance, annoyance or

disturbance.’
In 2007 Hazel built a house on the plot and paid the cost of relaying the
tarmac on the shared 100 metre strip of Gray Gables’ drive. In 2008
Jack sold Gray Gables to Caroline. In 2012 Hazel sold her house and
plot to Linda; and in 2015 Linda sold it to Daniel. Daniel, the lead
guitarist in a heavy metal band, has built a rehearsal studio behind the
house. Loud music can be heard coming from the studio day and night.
This has not only annoyed Caroline it has outraged Kenton, the owner
of The Heffer, a nearby public house. Daniel has also neglected the
house and garden and ignored Caroline’s most recent request to pay
half the cost of repairing potholes on the shared driveway.
Discuss.
5. “Although described quite accurately as the mortgagee’s right,

possession is in practice a remedy.”
Discuss.
UL15/0622
Page 4 of 6
6. Lillian is the registered proprietor of Dower House, a small-holding that
includes a cottage, a detached shed and a large paddock. Lillian keeps
chickens on the paddock and sells their eggs to the public. There is a
worn track through the paddock which forms a shortcut to the nearby
country village of Hollerton.
In May 2014 Lillian leased the cottage to her friend, Jolene, for a year.
Lillian retained the shed and the paddock. Before they signed the lease
of the Dower House Lillian told Jolene that she was happy for her to
use the shortcut through the paddock to Hollerton. A month later
Jolene, a country and western singer, asked Lillian if she knew of
somewhere locally where she might be able to keep her caravan when
she was not touring with her band. Lillian gave Jolene a key to the
shed and told her that as it was empty she could keep the caravan
there. Jolene was so pleased she invited Lillian to make use of the hot
tub in the cottage garden. In July 2014 Lillian asked Jolene if she
minded her placing a sign on the side of the cottage wall nearest the
road to advertise the sale of eggs from the Paddock. Jolene agreed.
In 2015 Lillian granted Jolene a five year lease of Dower House before
she sold the shed, the paddock and the egg business to her neighbour,
Brian. Brian refuses to let Jolene use the shed and the short cut across
the paddock to Hollerton. Jolene has therefore asked Brian to take
down the advertising sign and to stop using the hot tub.
Advise Jolene.
7. “Unregistered interests that override are sensible and reasonable

exceptions to the need for registration of land law rights. Nevertheless
it is clear that the scope and operation of this category of interests
provides a potential pitfall and source of uncertainty for purchasers of
registered land.”
Discuss.
UL15/0622
Page 5 of 6
8. Five friends Alan, Brian, Cindy, Daphne and Eleanor decide to open a
business and buy a house to rent as a holiday home. As Alan is richer
than the others he pays half the purchase price with the others paying
one eighth each. The house is conveyed into their names as legal and
beneficial joint tenants and is successfully run as a business for a
number of years with Alan taking 50% of the profits and the other four
sharing the remainder equally. Cindy is then made redundant and at
Alan’s suggestion moves into the house with her daughter Vivienne
who is autistic and enrols in the local specialist institution. Daphne is
unhappy that the house can no longer be rented out and discusses
with Brian and Eleanor whether they will buy “her share”. However,
although a price is initially agreed verbally, Daphne changes her mind
when all the owners decide to move into the house together to support
Cindy. Brian is then diagnosed with a terminal illness and, on legal
advice, sends a registered letter to the house addressed to each of the
others informing them that he wants to “sever his share”. However
minutes after the letter is posted, Eleanor is killed in a car crash and
when the letter arrives the next day Brian signs for it but immediately
destroys it. Alan is traumatised by the death of his best friend and
agrees to sell his interest to Cindy as he intends to emigrate. Before
completing the sale however Brian dies and at the funeral the surviving
owners, with the exception of Cindy, agree to sell the house.
(a) Advise Cindy.
(b) How, if the house is sold, will the proceeds be divided?
END OF PAPER
UL15/0622
Page 6 of 6
LA3003 Property law – Zone A
Introduction
Despite recent Property law Examiners’ reports beginning with practical tips on how
students might leverage their knowledge and do well in the examination, far too few
of you heed our advice. Thus this year, as in previous years, the examiners were
confronted by large numbers of students who, despite evident hard work, failed to
achieve their potential because of poor technique. As we have said repeatedly (in
the vain hope that you will believe us!) please remember that the examination is not
a test of knowledge but of the application of knowledge and, before considering the
substantive advice on each question below, make sure you have assimilated the
following general advice. We estimate that over 90 per cent of the scripts we see
each year would be improved if students took on board these various simple yet
critically important practical points.
alternate lines as this invariably makes reading (and therefore marking)
easier.
hone your skills before the examination by reading articles and cases while
the internet.
not and just irritates the examiner. Focus on the question asked, and the
have said in your essay. Here is your chance to reflect on what went before
1
number of possible ratios on which jurists might well disagree, whilst those
lawyers rich!
spending on your last answer.
writing a judgment that has come to you in case stated form. You are there
to apply the law to the given facts, willing to reject first instance decisions,
overturn CA precedents and, although nominally bound by HL/SC
decisions, still able to criticise or distinguish them.
juristic writings).
Comments on specific questions

Question 1
‘It would seem unlikely that many lawyers would advise a client in adverse
possession to apply to the Land Registry to be registered as proprietor,
knowing that would begin a process by which the registered owner is traced,
notified and given a very real incentive to commence possession proceedings
in a timely fashion.’
Discuss.
General remarks
This question forces you to address the practicalities of the 2002 reform of adverse
possession. It requires knowledge of what those reforms consist of and an
appreciation of the potential problems inherent in the new process. Students do not
have to agree or disagree with the statement and are at liberty to take any position
they choose (including strong or more nuanced support or hostility to the detail
2
and/or general direction of reform) provided they include a reasoned analysis of the
practical legal issues involved.
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, Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.144, Land
Registration For The Twenty-First Century A Conveyancing Revolution Law Com
No 271, Pye v Graham [2002], Zarb v Parry [2011], IAM v Chowdrey [2012], Best v
Chief Land Registrar [2015].
Common errors
Too few candidates had a proper grasp of what was being asked of them, with
many either assuming that the statement was advocating that lawyers should act
against their clients’ best interests on the basis that squatting is immoral; or that the
statement was so obviously wrong, in law, that it required no analysis to rebut. Not
many candidates addressed the practical problems inherent in the new process.
briefly explain why the statement does not apply to an unregistered title, nor
registered titles where there has been 12 years of continuous adverse possession
prior to the coming into force of the LRA 2002 on 13 October 2003. It would then
outline the process introduced under LRA 2002, Schedule 6 and the rationale
behind this reform as explained in the Law Commission/Land Registry Report that
preceded it. The remainder of the answer should address the practical obstacles
inherent in the process. Would, for example, a lawyer acting in his client’s best
interests, be likely to recommend initiating a process designed to incentivise the
registered owner in asserting his rights and evicting the client? Would a lawyer
normally be more likely to advise his client to stick with what he had, rather than risk
it all for something better? In what three situations (and why) would it be much safer
for a solicitor to advise his client to apply for registration? Beyond the civil law, is
there a reason in the criminal law as to why a solicitor might conceivably advise his
client not to advertise (and thereby admit) his adverse possession by applying for
registration? How convincing are these various concerns? Remember you are at
liberty to agree or disagree with the statement but in so doing you need to address
the issues it raises and not simply proceed by assertion by ignoring them.
simply regurgitated the law on adverse possession to varying degrees of accuracy
and details without any attempt to address the practical consequences of the new
process.
Student extract
Adverse possession is one of the most interesting areas of property law as it
involves the concept of squatting and the rights of the squatter. The law
doesn’t aid the sleeping lawyer and it is quite likely that many lawyers would
advise a client in adverse possession to apply to be a registered owner. An
adverse possessor or squatter must meet the requirements of the LRA 2002.
Schedule 6 permits the registration of estates in land by a person upon
application if he has been in adverse possession of the estate for the period
of ten years…
[The essay then proceeds by outlining in very vague terms the process under the
LRA 2002 and then turns to the Human Rights Act, for no obvious reason, before
finishing with the following conclusion.]
3
It is quite likely that many lawyers would advise a client in adverse
possession to apply to the land registry, knowing that it would begin a
process of notification of the owner but also knowing that the squatter’s rights
are also protected.
Comments on extract
This is a poor attempt as it fails to address any of the issues raised and contains a
mixture of meaningless waffle and rote learnt bookwork. While it is sensible to refer
back to the language of the quotation there is no point simply re-writing the
quotation without including any analysis of what is being said. Such an essay would
be highly unlikely to achieve a pass mark as the student has not applied his/her
knowledge to the question asked.
Question 2
Alastair was the registered owner of Grantchester, where he lived with his
long term companion, Nick, who paid the entire purchase price. Grantchester
is a country estate that includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair granted Stephen by deed a ten year lease of White Field.
ii) Alastair agreed in writing to grant Dawn the right to use a shortcut
iii) Alastair agreed, in writing, to sell Grantchester to Roger.
iv) Nick was detained in a secure hospital having suffered a nervous
breakdown.
Last month Alastair sold Grantchester to Iggy who is now the registered
owner of Grantchester. After moving in, Iggy asked Stephen to leave White
Field and refused Dawn permission to cross Gold Field. In the meantime
Roger has asked his solicitors to complete his purchase of Grantchester,
whilst Nick is planning to return to Grantchester on his discharge from
hospital tomorrow. Alastair has now disappeared with the proceeds of the
sale, whilst Iggy has asserted that he is not bound by Roger’s interest and
has changed the locks to ensure Nick cannot let himself into the house.
a) Advise Stephen, Dawn, Roger and Nick.
b) Explain briefly how, if at all, your advice would differ if all the above
unregistered title.
General remarks
This is a standard problem question on priorities in registered and unregistered title
and is testing your ability to apply the statutory provisions that govern each.
Law of Property Act 1925, Land Charges Act 1972, Law of Property (Miscellaneous
Provisions) Act 1989, Land Registration Act 2002, Chhokar v Chhokar [1984].
Common errors
Despite warnings in previous Examiners’ reports, many students waste time on
irrelevancies. In (i) for example you have been told that a lease has been granted
by deed and thus it is a complete waste of time (for which you will gain no credit) to
detail the requirements of a valid deed and/or lease. There is no issue here as the
question categorically states that point and thus it must follow that the requirements
for both a valid lease and deed have been met. The point in (i) is not to second
4
guess the examiners, by doubting our word as to what occurred, but to consider
how and in what circumstances the formal lease granted by Alastair will bind the
subsequent purchaser, Iggy. In contrast under (ii), it is acceptable to briefly detail
the requirements of a valid easement as the right described could either be an
easement or a licence and, as you have not been told which, it is important to
consider the possibility of either and the factors by which one or other would be
established. But please remember the main issue in (ii), as in (i), (iii) and (iv),
remains the question of priority and thus each answer should concentrate primarily
on how and in what circumstances the right granted by Alastair will bind the
subsequent purchaser, Iggy.
look at each issue in turn. Your answer should therefore be divided into the
following eight sections after noting that, as Alastair ‘sold’ Grantchester to Iggy, the
latter is presumably a purchaser under the differing requirements of both the LCA
(s.4) and the LRA (s.132).
(a) (i) Under LRA 2002, s.27, a lease over seven years (even if granted by
deed) is not legal unless it has been substantively registered, in which case
it will bind Iggy. If it is not so registered it will only take effect in equity, but
may be protected by means of a notice (s.33) and will, insofar as the
interest is valid (s.32), bind Iggy (s.29). If it is not substantively registered,
nor protected by means of a notice, it will only bind Iggy as an overriding
interest if coupled with discoverable occupation (s.29 and Sch 3, para.2).
As a lease over seven years it cannot also be an overriding interest under
Sch 3, para.1.
(ii) Dawn’s interest might simply be an express licence which, as a personal
right, would not bind Iggy and is not registrable, nor protectable, nor
capable of being an overriding interest. As there is a dominant and servient
tenement, owned by different parties, the shortcut may amount to an
easement provided there is sufficient proximity between the house and the
field, which, on the facts, seems highly likely. Despite the likely use of a
deed (‘grant’), as required under LPA, s.52, in the absence of substantive
registration (LRA, s.27) the express easement would only be equitable
(complying with LPA, s.53(1)(a)). Such an interest is protectable by means
of a notice (LRA, s.33), which will, insofar as the easement is valid (s.32),
bind Iggy (s.29). As an equitable easement, it cannot be an overriding
interest under Sch 3, para.3, which only applies to informal legal easements
arising impliedly or by prescription.
(iii) Provided the written agreement complies with LP(MP)A 1989, s.2, and
is consequently signed by both parties, it is a specifically enforceable
contract to transfer an interest in land, which, as an estate contract, is
protectable by means of a notice (LRA, s.33), in which case Iggy will again
be bound but not otherwise.
(iv) Nick contributed the entire purchase price, and in the absence of
evidence of gift, is likely to hold a beneficial interest under either an express
or, in the absence of any signed written evidence of express declaration
(LPA, s.53(1)(b)), implied trust (either resulting or constructive, s.52). As an
overreachable interest (s.2) it is neither substantively registrable (LRA,
s.27), nor protectable by means of a notice (s.33). However a restriction
might be entered (s.40), requiring that any disposition of the legal title
comply with the requirements of overreaching, mandating any proceeds of
sale be paid to at least two trustees or a trust corporation (LPA, s.27). As
Alastair, as sole legal owner, entered into a disposition transferring title to
5
Iggy, no such restriction could have been in place. Nick’s interest has
consequently not been overreached but will only bind Iggy if coupled with
discoverable occupation (s.29 and Sch 3, para.2). It consequently has to be
established whether, despite his physical absence in hospital, Nick remains
in occupation (which seems likely – Chhokar v Chhokar) and, if so, whether
either: the occupation (rather than the interest) was discoverable (which
appears more problematic); or else, whether the interest (rather than the
occupation) was known personally to Iggy (about which we have no
evidence).
(b) (i) As a legal interest in unregistered title the lease binds the world including
Iggy.
(ii) If it is an express licence, Iggy is not bound by a purely personal
interest. If, on the other hand, it is an easement granted by deed in
accordance with LPA, s.52, it is legal and consequently binds the world
including Iggy.
(iii) If it is an estate contract, Alastair could have registered it as a Class
C(iv) Land Charge (LCA, s.2) in which case Iggy is bound but otherwise
takes free irrespective of his knowledge.
(iv) As an overreachable interest that has not been overreached, Nick’s
interest is governed by the equitable doctrine of notice and Iggy will take
free unless he has actual, constructive or imputed knowledge of Nick’s
interest.
priority or showed little real understanding of how the rules of priority worked. Far
too many students sought to apply the Land Charges Act in the context of
registered title, where it has no application.
Question 3
‘Rather than undermining formalities, proprietary estoppel is the critical
safeguard by which their requirements can be justified.’
Discuss.
General remarks
A question asking students to address the policy issues that unify the seemingly
contradictory requirements of formalities and proprietary estoppel.
Law of Property Act 1925, Law of Property (Miscellaneous Provisions) Act 1989, no
particular cases are expected as there are a wide selection illustrating the policy
considerations underlying formalities and proprietary estoppel.
Common errors
A large proportion of candidates simply wrote generalised essays on either
formalities, proprietary estoppel or both.
begin by considering the reasons why formalities are required including the
evidentiary function (proving what was done), the cautionary function (concentrating
minds as to its import) and the channelling function (ensuring it is done via the
legally prescribed route). Ultimately, therefore, dry, boring formalities turn out to be
critically concerned with the noble cause of transactional justice as they promote
certainty, fairness and circumspection. Yet, despite these rarefied aims there is also
a contradiction at their heart, a problem inherent in all formalities, what Birks
6
described as an ‘inescapable tension [as] formality breeds hard cases’. Thus quite
paradoxically, despite existing to promote justice in exchange, those who are most
vulnerable (be that through poverty, ignorance or stupidity) are the very people
most likely to be caught our by formalities strictures because they cannot afford, do
not take, or only receive sub-standard advice. Thus the very act of promoting justice
creates injustice for the small minority not able to take advantage of what formalities
have to offer. It is to this constituency that proprietary estoppel directs its efforts, by
forgiving a failure to comply with formalities in situations where it would be
unconscionable to do otherwise. That, however, produces further tensions for the
forgiving of such failure is itself dangerous, as it risks causing greater injustice by
undermining formalities generally and the justice they are designed to promote,
whilst also increasing uncertainty; who, after all, would go to the cost and time of
formality if proprietary estoppel was always willing to forgive a failure to comply; or
place much reliance on something that might thereby be undermined? That is why
proprietary estoppel operates under such constraints and the case law ebbs and
flows as the courts battle to maintain a balance that seeks to maximise both justice
and certainty.
simply recited various cases concerned with formalities and/or proprietary estoppel,
producing little more than a list of vaguely relevant authorities, which made no
meaningful attempt to address the issues raised.
Question 4
‘There seems little enthusiasm, or rationale, for the Certainty of Term
requirement in leases.’
Discuss.
General remarks
This is a question on ONE of the TWO substantive requirements of a valid lease
providing students with an opportunity to discuss judicial and academic discussion
on the significance and function of Certainty of Term.
Law of Property Act 1925, Lace v Chantler [1944], Re Midland Railway Agreement
[1971], Ashburn Anstalt v Arnold [1989], Prudential Assurance v London Residuary
Body [1992], Berrisford v Mexfield [2012].
Common errors
The question is not asking for an essay on all the requirements of a lease, yet many
proceeded to discuss exclusive possession, often in great detail and achieved no
credit despite their obvious learning on the topic.
provide an overview of the requirement in standard leases, beginning with Lace v
Chantler and not forgetting the conceptual difficulty in applying the principle to
periodic tenancies. The essay should chronicle examples of judicial disenchantment
with, and glosses on, the rule including Midland Railway Agreement and Ashburn
before charting the return to a very rigid orthodoxy under Prudential and the judicial
ingenuity employed to effectively avoid the rule in certain situations under Mexfield.
A good essay should also consider academic commentary on the subject, including
those who support the rule (e.g. Sparkes (1993) 109 LQR 93) and those who do not
(e.g. Kohler (1993) 46 CLP 69). A good student could gain much credit by having
actually read the important cases. This would, for example, enable you to illustrate
the point (by reference to the particular speeches in the case) that, despite its
unanimity, Prudential is a far weaker authority than that simple fact suggests, with
only Lord Templeman (the losing QC in Midland Railway Agreement) showing any
7
great enthusiasm for a rule for which the majority had little, if any, appetite. Viewed
from that perspective, the lengths to which the Supreme Court was willing to go, in
(somewhat artificially) avoiding the rule in Mexfield, become much more easily
understandable.
wrote generalised essays, usually on the ‘three’ substantive requirements of a
lease, even though exclusive possession is irrelevant to the question asked and
rent is not even a substantive requirement (LPA 1925, s.205) but, at best, only
probative.
Question 5
Sarah was the owner of a piece of land abutting a river. Five years ago she
entered into a contract with David who covenanted to maintain the flood
defences abutting her land for the next twenty years. The following year her
neighbour Romulus divided his large area of land into eight separate plots on
each of which he began building a house to sell. Sarah decided to do likewise
dividing her smaller piece of land into two separate plots and agreed with
Romulus to create a small exclusive estate of ten houses for sale. In order to
enhance their value and prestige, they decided to include covenants to the
following effect in each house sale. The covenants required each purchaser
to agree that:
i) Their property would only be used for residential purposes.
ii) Each owner would pay 10% of the costs of maintaining the estate’s
private road.
iii) Each owner would pay 10% of the costs of providing free boat trips on
the river.
Romulus then sold plots 1 to 8 with each purchaser entering into a covenant
with him on these terms. Sarah then sold plot 9 to Jack who covenanted on
the above terms with ‘Sarah and the present owners of plots 1 to 8’. The
contract also included an assignment of the benefit of David’s covenant to
maintain the flood defences. The following week Sarah sold plot 10 to
Beatrice who covenanted with Sarah in similar terms although this time the
contract made no reference to the owners of the other plots, nor included any
written assignment of the benefit of David’s covenant.
Jack has recently converted his house into a hotel and is refusing to pay for
the maintenance of the road or the provision of boat trips, whilst the entire
estate has become waterlogged after David failed to maintain the flood
defences.
a) Discuss.
b) How, if at all, would your advice differ if Beatrice, rather than Jack,
was acting in breach of these covenants?
c) How, if at all, would your advice differ if Ahmed, a successor in title
to Beatrice, was acting in breach of these covenants?
General remarks
This is a problem on non-leasehold covenants (often referred to in textbooks as
freehold covenants) that tests students’ understanding of the principles that apply in
this area to both the original parties and those to whom either the benefit or burden
has passed.
8
Law of Property Act 1925, 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].
Common errors
This question was answered very poorly by the majority of candidates, with most
answers failing to identify the original parties to the covenant, nor whether a
particular issue involved the passing of the benefit or the burden. It was obvious
that many of those who attempted the question had no real understanding of the
principles that govern non-leasehold covenants, offering formulaic responses that
simply highlighted their confusion.
Be divided into three sections as discussed below.
a) There are four, rather than three, covenants to consider: not only (i), (ii) and
(iii) but also the contract between David and Sarah which we will consider
first.
David and Sarah are the original parties to a covenant to maintain the river
defences under which David, as covenantor, assumes the burden and
Sarah, as covenantee, the benefit. Under normal contractual principles,
David is clearly liable on the covenant (at law but not in equity)
notwithstanding he has no land burdened by the covenant, as illustrated in
Smith & Snipes Hall Farm v River Douglas Catchment Board [1949]. As for
the benefit, Sarah can, as holder of a chose in action that is not exclusively
personal, assign it provided she does so in writing in accordance with Law
of Property Act 1925, s.136. Thus, when Jack bought plot 9, he acquired
the benefit of the covenant under an express assignment and can sue
David, as original covenantor, for his failure to maintain the flood defences.
In contrast, when she acquired plot 10, there was no similar assignment of
the benefit to Beatrice, and thus she can only sue David if the benefit
passed at law because it was annexed to the land she acquired. Under
Rogers v Hosegood [1900], the benefit can only be annexed at law if it, as
the flood defences clearly do, touches and concern the land of Sarah, the
original covenantee; whilst both parties must also, as appears highly likely
here, have had a legal estate in the land (although, under LPA 1925, s.78,
not necessarily the same legal estate). In the absence, as here, of an
express annexation, a statutory annexation under s.78 will then arise, under
Federated Homes v Mill Lodge Properties [1980], unless a contrary
intention is shown (Roake v Chadha [1984]). Therefore Beatrice, as legal
owner of plot 10, can, like Jack, also sue David for his failure to maintain
the flood defences; unlike Romulus, or the owners of plots 1 to 8, who,
despite their practical interest in the flood defences being maintained, have
no contractual nexus with David enabling them to enforce the covenant.
Turning to covenants (i), (ii) and (iii), Jack, as original covenantor, is liable
for their breach irrespective of whether the burdens are positive or negative.
He can, consequently, be sued by Sarah as original covenantee, although,
as she has parted with the benefited land (plot 10), any damages will
probably be nominal, with the court similarly unlikely to grant an equitable
remedy. However, under LPA 1925, s.56, the ‘present owners of plots 1 to
8’ are also regarded as parties to the covenant and can therefore sue Jack
on all the covenants and, insofar as they retain their plots, be awarded
substantial damages and/or injunctive relief. Whilst neither Beatrice, nor
any successors in title to plots 1 to 8, are parties to the covenants under
9
LPA, s.56, they can sue on (i) and (ii) under Federated Homes, provided
they acquire a legal estate, as both covenants, unlike (iii), touch and
concern the land and thus the benefits will, in the absence of contrary
intention, be statutorily annexed under LPA, s.78.
b) Beatrice, as original covenantor, is likewise liable, like Jack, to the original
covenantee, Sarah, but not the owners of plots 1 to 8 under s.56 as they
were not similarly mentioned in the conveyance. Nor is she liable at law to
Jack, as he bought plot 9 before she made the covenant with Sarah and
thus the benefit could not have been annexed at law to the land he
acquired at the time he bought it. However, as they touch and concern the
land, the benefit of covenants (i) and (ii) might pass in equity to the owners
of all the other plots (e.g. plots 1 to 8, Jack and their successors in title
whether they acquire a legal or equitable estate), under a scheme of
development, where the absence of a common vendor is not critical (Re
Dolphin’s Conveyance [1970]), and the necessary reciprocity is clearly
present.
c) Ahmed, as a successor in title to Beatrice, will be similarly liable to the
owners of all the other plots, like her, under a scheme of development but
only in respect of covenant (i), provided the burden has been protected by
means of a notice (registered title) or a Class D(ii) land charge
(unregistered title), as it is negative; unlike covenant (ii) where the burden is
positive and cannot therefore pass either in law or in equity.
talked about the burden passing to Sarah and Jack, seemingly oblivious of the fact
that they were the original parties to the covenant and did not appreciate that (a)
and (b) dealt exclusively with the passing of the benefit and only (c) was concerned
with the passing of the burden.
Question 6
Andy was the registered owner and occupier of a house with an adjoining
commercial garage. In 2007, when Andy retired, he granted Barney a lease of
the garage for a period of five years. For many years there had been a sign
advertising the garage on the side wall of the house next to the main road,
however Andy removed it a few weeks after Barney took possession of the
premises. The forecourt of the garage was quite small and Andy had
occasionally parked cars awaiting repair on the drive of his house, but, when
Barney began doing so, Andy asked him to stop. In retaliation Barney told
Andy that he would no longer be allowed to cross the garage forecourt, which
separated the drive from the main road. This prevented Andy parking his car
on the drive although it was still possible to access the drive on foot via a
footpath that ran between the forecourt and the house. A few weeks later
Andy and Barney decided they were both being petty; Andy allowed Barney
to reinstate the advertising on the side of his house and said he could use the
drive occasionally in return for Andy being allowed to resume driving over the
forecourt. In 2012 the lease was renewed for another 5 years at which point
Barney told Andy he was, once again, no longer permitted to drive over the
forecourt. Andy consequently painted over the advertising sign and refused
to let Barney use his drive.
Discuss.
10
General remarks
This is a standard problem on easements where candidates have two basic
questions to determine. First, is the putative right capable of being an easement
and secondly, if so, how, if at all, has it been created? Although an easement can
arise expressly, impliedly or by prescription, you only need to consider the first two
possibilities in any question, as the third is not currently examinable.
LPA 1925, s.62, Moody v Steggles [1889], Hill v Tupper [1863], Re Ellenborough
[1956], Wheeldon v Burroughs [1879], Wood v Waddington [2015], Ward v Kirkland
[1967], Hillman v Rogers [1998], Wheeler v Saunders [1995], Millman v Ellis [1996],
Platt v Crouch [2003], Alford v Hannaford [2013], Batchelor v Marlow [2001],
Moncrief v Jamieson [2007], R Square Properties v Nissan Motors [2014], Peckham
v Ellison [1998], Re Dodd [1843].
Common errors
Candidates often failed to address both questions in respect of each of the three
potential easements and failed to show a proper appreciation of the differing
requirements under which an easement might be implied under necessity, common
intention, Wheeldon v Burroughs and LPA, s.62. A sizeable minority of students
failed to appreciate the difference between implied grants and reservations in
respect of both when they might arise and the conditions under which they are
governed.
consider each of the potential easements in turn. It is debatable but it is probably
worth postponing discussion concerning the subsequent facts, regarding the
parties’ reconciliation and subsequent further breakdown of relations, to the end of
the essay after first exploring the initial position pertaining at the point the first lease
was granted.
a) Something promoting a business is capable of being an easement and
students should contrast Moody v Steggles [1889] and Hill v Tupper [1863]
in deciding that this interest, in accommodating the land (as opposed to
Barney), does fulfil the necessary Re Ellenborough requirements of a valid
easement (dominant/servient tenement, different owners, accommodation,
subject matter of a grant). Such an easement could have been expressly
granted when the lease was granted, although we have no evidence that
such a grant took place. However, candidates should note the possibility,
as that is what a lawyer should first ask but, on the assumption that there
was not an express grant, we now need to consider whether it arose by
implication. There are four possible means by which an implied grant of an
easement might occur: necessity; common intention; Wheeldon v
Burroughs; and LPA 1925, s.62. Clearly, the grant could not arise under
necessity as it is not possible to argue that Barney could not use his land
without the advertising sign. Likewise, a submission based on common
intention is highly unlikely to succeed as, although there was no doubt a
common intention that Barney would run the garage as a business, it
cannot be argued that the advertising sign was necessary to achieve that
end. Obviously it would help the business, but that is not the test, as the
business could still run, albeit probably less successfully, in the absence of
the advertising sign. Clearly, had there been a more specific common
intention that the sign would be maintained, Barney could succeed on this
ground but there is no evidence to support such a claim on the facts stated.
Under Wheeldon v Burroughs, however, Barney has a greater chance of
success. As the sign existed prior to the granting of the initial lease, it
clearly fulfils the requirement of a quasi-easement, which, due to its very
11
physicality, was most certainly ‘continuous and apparent’. That might be
enough under Wheeldon, although the better view, following the
assumptions of the CA in Wood v Waddington [2015], is that the quasi-
easement must have been both ‘continuous and apparent’ and ‘necessary
for the reasonable enjoyment’ of the land. If that is, as seems likely, the law,
we now need to explore the final condition, although it is possible to argue
they remain alternative, rather than cumulative, conditions, as suggested in
Ward v Kirkland [1967] and, more ambiguously by Wheeldon. Determining
whether a right is ‘necessary for the reasonable enjoyment’ of the land is
not easy. The test is clearly not the same as necessity, as made clear in
Hillman v Rogers [1998] (cf. Wheeler v Saunders [1995] which is poorly
argued on this point), nor is it as specific as in common intention (where the
right must be necessary to achieve the specific common intention relied
upon). In this case, it would be determined by facts on which the question is
silent, regarding the extent of other advertising sites (Wheeler v Saunders
[1995]) and the relative importance of the site he is seeking to retain
(Millman v Ellis [1996]). Finally, candidates should consider LPA, s.62
because, although there was no diversity of occupation before the initial
lease was granted, it seems, according to the CA in Wood v Waddington
[2015] (following Platt v Crouch [2003] and Alford v Hannaford [2013]) that
that is no longer a requirement where, as here, the purported easement is
‘continuous and apparent’. That will, on these facts therefore, generate an
implied easement, provided the initial lease was legally conveyed, without
requiring the court to additionally consider whether it was ‘necessary for the
reasonable enjoyment’ of the land, as they would have had to under
Wheeldon.
b) Even where, as here, the other Re Ellenborough requirements have been
met, a potential easement of parking, will always require an examination of
the subject matter of a grant question as such easement lie on the border
between non-possessory rights and possessory estates in land. You should
therefore be equipped to discuss recent case law and the difference of
views represented by the decision in Batchelor v Marlow [2001] and the
obiter comments of Lord Scott in Moncrief v Jamieson [2007], where even
the ratio, despite being a House of Lords decision, is only of persuasive
authority as the case concerned the (albeit almost identical) Scottish law of
servitudes rather than the English law of easements. Recent case law (R
Square Properties v Nissan Motors [2014]) appears to favour the broad
Batchelor approach, pragmatically seeking to establish whether the servient
owner retains reasonable use, rather than the more formalistic approach of
Scott, who would be willing to find an easement, even if the answer to that
question was in the negative, provided the servient owner had not
abandoned ‘exclusive possession’ (i.e. formal possession and control). On
these facts, however, the use would surely pass both tests and thus one
need not dwell overlong (although briefly showing your erudition on the
point would not go amiss). How the easement might arise, in the absence
of express grant, again requires you to look at the four possible methods
considered above although you can afford to be briefer over the conditions
pertaining to each, as there is never any point repeating yourself in an
answer. Clearly, necessity and common intention will again not apply
(unless, regarding the latter, there was a specific common intention to allow
the cars to be parked, of which we have not been told). Under Wheeldon v
Burroughs, although it might (just) be possible to point to a quasi-easement
(given the occasional previous use by Andy) it was clearly neither
‘continuous and apparent’ nor (even if they are alternative conditions)
12
‘necessary for the reasonable enjoyment’ of the land. In the absence of

prior diversity of occupation, invoking LPA, s.62 is similarly doomed given
the only occasional use.
c) Clearly, the right to cross Barney’s forecourt could be an easement as,
provided the plots are sufficiently proximate and in different hands, a right
of way will always fulfil the Re Ellenborough requirement regarding
accommodation and subject matter. However, as this is a potential
easement in Andy’s favour over the land he leased to Barney, the issue is
one of reservation, not grant, which, in the absence of an express
reservation, can only arise impliedly via necessity or common intention.
Common intention is normally more narrowly prescribed than in implied
grants and will only be a factor where there was a common intention to
reserve the specific easement claimed (Peckham v Ellison [1998]) which is
not the case on these facts. That leaves us with necessity where the
existence of another, albeit inconvenient, route means Andy is unlikely to
succeed (Re Dodd [1843]).
It is likely, therefore, that an implied easement will have arisen at the outset in
respect of the advertising sign but not the parking nor right of way. Consequently,
when Andy painted over it, Barney could rely on the right he acquired at the outset
to seek injunctive relief to restore the advertising sign. While Barney could not do
likewise, re the potential easement of parking, the subsequent licence granted by
Andy, prior to the grant of a new lease, means that under s.62 the licence Andy
granted Barney is likely to have been transformed into an easement. Barney
therefore now has both an implied easement of advertising (dating from the outset)
and an implied easement of parking (dating from the grant of the second lease).
Even though he was not the instigator of the current discord, Andy appears to have
no similar remedy against Barney, as the claimed right of way did not arise at the
outset and, as an implied reservation (rather than grant), cannot now arise under
s.62.
mechanically applied some or all of the various requirements with no real
understanding of what they comprised. It is not enough to learn a requirement by
rote; candidates need to be able to apply the requirement to the given facts and
thereby show the examiners that they understand it how it operates in practice.
Question 7
Ed, who owns a lease over a bar with twenty-two years remaining on the
demise, approached Babylon Brewers after his bank refused to lend him the
money he needed to renovate the bar. Babylon Brewers agreed to lend Ed the
money, repayable over 20 years, secured by way of a legal mortgage over the
bar. The mortgage deed contained the following terms:
i) Ed must buy all his spirits from Babylon Brewers at the prevailing
market price.
ii) Babylon Brewers has the right of first refusal if Ed ever decides to sell
the lease.
iii) Ed cannot redeem the mortgage for the first nineteen years.
In 2016 Ed’s business ran into financial difficulty. When Ed missed one loan
repayment, Babylon Brewers wrote to him with evidence that he had sold
spirits supplied by one of their competitors and indicating that Proud Prinnies
PLC had enquired about the possibility of buying Ed’s bar. Ed is about to
miss a second month’s loan repayment but is keen to stay in possession to
13
arrange his own sale because he believes this will maximise his chances of
realising the best sale price.
Advise Ed about:
a) the validity of the terms of the mortgage; and
b) the rival proposals over possession and sale.
General remarks
This is a standard problem on mortgages, much like the many previous examples in
the University of London Land and property law exam archives. None of the issues
raised should consequently have sprung any real surprises nor given a properly
prepared candidate any great difficulty. Despite that the problem was, unfortunately,
not particularly well addressed, by the vast majority of candidates who attempted it.
As a commercial loan there was little opportunity, or point, to consider the statutory
framework applicable to consumer mortgages.
Law of Property Act 1925, Administration of Justice Act 1970, Biggs v Hoddinott
[1898], Noakes v Rice [1902], Kreglinger v New Patagonia Meat & Cold Storage
[1914], Samuel v Jarrah Timber [1904, Reeve v Lisle [1902], Knightsbridge Estates
v Byrne [1912], Fairclough v Swan Breweries [1940], Mortgage Services v Palk
[1993], Cheltenham & Gloucester BS v Krauz [1997].
Common errors
As in other questions on this paper, many students provided formulaic responses
that betrayed a lack of proper understanding and included subtle but critical
mistakes (such as using ‘unreasonable’ and ‘unconscionable’ as synonyms) that
revealed a failure to read, or properly consider, the leading cases in this area.
be divided as detailed below.
a) In light of the common law’s historic formalism and corresponding failure to
prevent abuse of mortgagors’, often vulnerable, position, equity gradually
developed, a body of case law protecting what became known as, the
equity of redemption. This comprises the totality of rights retained by the
mortgagor during the currency of a mortgage, despite the mortgagee
formally acquiring what appears to be full title and the mortgagor technically
retaining nothing, apart from a contractual right to redeem. Equity’s
determination to ensure there were ‘no clogs or fetters on the equitable
right to redeem’ was the means by which it gave substance to the equity of
redemption and turned, what formally comprised a transfer of title, into
what, in substance, was limited to security for a debt; requiring the
mortgage to be repayable and the security preserved so that it could be
returned in the same state it was when given. Problem questions like this
require candidates to consider case law rooted in, but often extending
beyond, the ‘no clogs or fetters’ doctrine and test students’ understanding
of equity’s historic role and current function, particularly in light of a
willingness, over the last century or so, to increasingly embrace freedom of
contract, mirroring land’s gradual move from feudal relationship to
mercantile resource.
i) Solus ties were traditionally limited to the duration of the mortgage for
otherwise the security was not returned in the same state as when it
was given. Under Biggs v Hoddinott [1898] and Noakes v Rice [1902]
therefore, free houses can be tied to breweries for the duration of a
mortgage but not beyond; for otherwise a free house ends up as a tied
14
one. Under that approach the tie to Babylon Brewers (which appears to
be unlimited) would be limited to the duration of the mortgage.
However, under Kreglinger v New Patagonia Meat & Cold Storage
[1914] a more modern approach was embraced and a solus tie that
lasted beyond the mortgage permitted, provided the tie was in
substance independent of the mortgage transaction. Thus a right of first
refusal, giving the mortgagee the right to purchase any sheepskins the
mortgagor chose to sell, at the market price, was permitted to last
beyond the duration of the mortgage because the transaction was in
substance independent of the mortgage transaction (i.e. stood up on its
own terms). The mortgagor, after all, only sold what he wanted to sell
and received the full market price for what was bought. You might
therefore argue that requiring Ed to buy his spirits from Babylon
Brewers at the market price similarly stands up on its own terms, as Ed
is not forced to buy more than he needs, nor pay more than the market
rate. However the facts are distinguishable from Kreglinger, as this
clause limits Ed to buying his spirits from one supplier and therefore
does not allow him to stock spirits that Babylon Brewers do not supply.
The term would therefore most probably be limited to the duration of the
mortgage with Biggs and Noakes applied and Kreglinger distinguished.
Although solus ties may be challenged as restraints to trade (see Esso
Petroleum v Harpers Garage [1968]) this is unlikely to succeed in
circumstances where the courts recognise the commercial realities;
such as those that operate in this sector where drinks companies
clearly require incentives in provide loan finance to the bar and pub
industry.
ii) The essence of a mortgage is redeemability, whereby the security is
released on repayment of the debt. Equity will consequently not permit
a mortgage to include an option, giving the mortgagee the right to
purchase the security, as that would be the ultimate clog on the Equity
of redemption. It was consequently held in Samuel v Jarrah Timber
[1904] that an option is repugnant to the very notion of a mortgage
(unless contained in a separate and independent transaction – see
Reeve v Lisle [1902]). This is because the option would give ultimate
dominium over the security to the mortgagee who could decide whether
or not the mortgagor ever resumed unencumbered ownership. The
same does not, however, hold for a right of first refusal (also known as
the right of pre-emption) because in that situation the mortgagor retains
dominium and the right to decide whether or not to part with the
security. Under a right of pre-emption the mortgagee cannot force the
mortgagor to sell and the mortgage is consequently not irredeemable.
The term we are considering is therefore distinguishable from Jarrah
Timber and unlikely to be held repugnant, although it would only be
permitted for the duration of the mortgage and would not be
enforceable after repayment of the debt.
iii) Postponement of the right to redeem is not itself repugnant to the
notion of a mortgage provided the mortgagor can eventually get back
what he mortgaged. In Knightsbridge Estates v Byrne [1912], for
example, a 40-year postponement of the right to redeem the mortgage
of a fee simple was consequently not struck down as, at the end of the
mortgage, the mortgagor retained an unencumbered fee simple. That
case should, however, in problems such as this be contrasted with
Fairclough v Swan Breweries [1940], where a postponement lasting
less than half that time, concerning the mortgage of a leasehold estate,
15
was struck down, as the lease would have had no more than six weeks
to run by the time the mortgage could first have been redeemed.
Consequently, with a diminishing asset such as a leasehold estate,
postponement might be struck down on the basis that the right to
redeem is illusory, depending upon the time remaining on the lease at
the point where the mortgage may first be redeemed. Whether,
however, a 19-year postponement, on a mortgage with 22 years
remaining on the demise, would likewise be struck down is open to
debate (and frankly we do not mind which way you decide; provided
you see the issue, do not sit on the fence and give reasons for making
your decision).
b) A power of sale will normally be expressly included in the mortgage but
otherwise implied under s.101 where it will always arise provided the
mortgage is made by deed, no contrary intention appears on its face and
the contractual date for payment has passed or at least one instalment is in
arrears. It then becomes exercisable under s.103 if, alternatively: three
months have passed since notice requiring repayment has been served
and is due; if interest repayments due are in arrears for two months; or (as
here re the solus tie) if another term has been breached. Babylon Brewers
could exercise their right to take possession and organise a sale although a
private sale to Proud Prinnies simply in response to their initial enquiry
would be highly unlikely to fulfil Babylon Brewers equitable duty to get the
best price reasonably obtainable. Babylon Brewers would be best advised
to exercise their right to possession (as vacant possession is likely to
maximise the selling price) and sell by auction, which, provided it is suitably
advertised, would achieve a swift sale whilst fulfilling their duty to Ed. If he,
however, is keen to sell the property himself he would be best advised to
apply to the court for an order of sale under LPA, s.91. In Mortgage
Services v Palk [1993] the Court of Appeal held that in such circumstances
the court had a wide, discretionary power, under s.91 to suspend any
possession proceedings by the mortgagee, and, consequently, provided the
court was satisfied that Ed was seeking possession to effect a sale (rather
than attempting to simply delay the inevitable) and that his plan was
practical it might well be persuaded to exercise its discretion accordingly.
However, according to Cheltenham & Gloucester BS v Krauz [1997], there
is no such power under s.91 and, unless the court has power to do so
under the Administration of Justice Act 1970, s.36, the court cannot
suspend possession proceedings brought by the mortgagee. On that
reading of the law, Ed will consequently not be able to resist any
possession proceedings brought by Babylon Breweries as the bar premises
do not appear to include ‘a dwelling house’ as required under s.36.
failed to see the underlying concepts upon which the case law is built and provided
simplistic answers that often failed to consider the statutory framework under which
the power of sale operates.
Question 8
In 2008 five solicitors, Sam, Tarquin, Ursula, Venus and Zachary bought
Tumbledown House as a place to stay in London during the week as they
worked too many hours each day at Fat Chance, a solicitors firm, to commute
from their homes in the country. Sam and Tarquin each paid 40% of the
purchase price and Ursula 20%, whilst Venus and Zachary paid nothing. The
house was conveyed to the five of them as beneficial joint tenants.
16
In 2011 Sam went to work abroad. He sent a letter to Ursula, Tarquin, Venus
and Zachary saying that he wanted Tumbledown House to be sold
immediately so that he could ‘take his 40%’. The note was sent by standard
post to Tumbledown House and was opened by Ursula who immediately
threw it away without showing it to the others. On emptying the bin Venus
discovered the note and sent an email, which she mistakenly sent to
everyone at Fat Chance, telling them that she was hurt not to have been
consulted and had consequently decided to sell her share of Tumbledown
House with immediate effect. However a few days later she discovered she
was pregnant and decided not to go through with her plans to leave.
In 2012 Ursula died in a car crash on the way to the christening of Venus’s
daughter. Her will left all of her property to Tarquin.
You are consulted by Sam, who has returned to the UK and wants to resume
living in Tumbledown House. However, Tarquin and Zachary have told him
that, since being made redundant, they have agreed to sell Tumbledown
House, although Venus is currently refusing to move out.
Advise Sam:
a) as to the effect of the above events on the legal estate and equitable
interests in Tumbledown House; and
b) whether Tarquin and Zachary are entitled to exclude him and Venus
from living there and whether there is anything he can do to prevent
a sale.
General remarks
This is a standard question on co-ownership which was very popular amongst
candidates and received a wide range of responses including the good, the poor
and the middling. Many answers included diagrams, which can, indeed, assist your
discussion (although poor ones will only hinder it!).
Law of Property Act 1925, Trusts of Land & Appointment of Trustees Act 1996, Re
Drapers Conveyance [1969], Harris v Goddard [1983], Kinch v Bullard [[1998],
Goodman v Gallant [1986], EON UK Plc v Gilesports Limited [2012], Williams v
Hensman [1861].
Common errors
A question like this is full of cunning (and, frankly, often not so cunning!) traps which
you should be on the look out for and do your best to avoid. For example, any
candidate choosing to answer a question on co-ownership should be aware of the
right of survivorship that applies in joint tenancies. However, a sizeable minority of
students still thought there could be severance by testamentary disposition (i.e. a
will), even though that is, of course, utterly incompatible with survivorship. Some
students, despite the express declaration of beneficial ownership, even argued, on
the basis of unequal contributions, that there was a beneficial tenancy in common
from the outset which meant there was, of course, almost nothing further to say
under (a). Whilst others, after likewise finding a beneficial tenancy in common, still
sought to discuss its subsequent severance, which is odd to say the least! Such
mistakes damage the candidate’s credibility in the eyes of the examiner and there is
really very little excuse for falling into such avoidable errors. The trick is to read
through the problem and be on the lookout for what are (to be honest) pretty
predictable traps. It is also important to think about the words you employ. The
notion of shares is incompatible with the logic of joint ownership and thus you
should avoid using the term when dealing with joint tenancies (with the exception of
‘acting upon one’s “share”’ where the logically inappropriate term has been
17
hallowed by time!). By the same logic, the term undivided shares refers to a
tenancy in common (where the shares are physically undivided) but some
students wrongly use the term when referring to joint tenancies.
deal with parts (a) and (b) separately.
a) Under LPA 1925, s.34, the first four named in the conveyance (presumably Sam,
Tarquin, Ursula and Venus) hold as legal joint tenants on trust for themselves and
Zachary as beneficial joint tenants, notwithstanding their unequal contributions, on
the basis of an express declaration of trust under Goodman v Gallant [1986].
Figure 1
Law S+T+U+V
Equity S+T+U+V+Z
In discussing the note you need to establish whether Sam has served a statutory
written severance in accordance with LPA ss.36(2) and 196. You are told that the
letter was sent by ‘standard post’ and thus there is no opportunity to claim (as some
attempted) that the letter was sent by registered post and governed by s.196(4). As
a standard letter it is, in contrast, governed by s.196(3) and deemed served when
left at the remaining joint tenants’ last place of abode (i.e. Tumbledown House) or
place of work (Fat Chance). The letter is not required to take any particular form (Re
Drapers Conveyance [1969]) but must, as here, display an immediate desire to
sever (Harris v Goddard [1983]). Please remember it is deemed to take effect the
moment it is delivered (and not earlier e.g. on posting, nor later e.g. on reading) as
demonstrated in Kinch v Bullard [1998]. Sam consequently served a valid statutory
severance unless you take the Megarry & Wade view that, under a strict reading of
s.36(2), written severance can only occur where the legal and beneficial interest are
vested in the same legal and beneficial owners. If one rejects that, arguably, too
pedantic an approach, severance occurred the moment the letter arrived at
Tumbeldown, before Ursula read it and notwithstanding it subsequently being
thrown away, nor Sam’s mistake regarding the 40 per cent. As many students
appreciated, a joint tenancy is severed in proportion to the number of joint tenants,
and not their initial contribution, and thus Sam now owns a 20 per cent share in the
beneficial interest (despite his 40 per cent contribution) with the others continuing to
jointly own the remaining 80 per cent.
Figure 2
Law
S+T+U+V
Equity 1/5 S 4/5 T+U+V+Z
Turning to the email sent by Venus, there are a number of difficulties in holding that
this also constitutes a valid statutory severance. Under EON UK Plc v Gilesports
Limited [2012], Mr J Arnold sitting in the chancery division held that an email was
not a valid form of notice under s.196(3). Some candidates tried to argue, however,
that it might come with s.196(4) due to the fact that an email’s delivery is recorded
and, while the examiners regarded this as an imaginative argument (for which
18
candidates gained credit), it seems unlikely to succeed in practice as the term

registered letter, as used in the Act, clearly refers to the form, rather than the
substance, of the communication. Even if the court was unwilling to follow EON,
there is doubt as to whom the email was addressed. It is therefore questionable, in
the absence of evidence showing that Venus deliberately and specifically
communicated with Tarquin, Ursula and Zachary, to submit that she had fulfilled the
conditions of s.36(2) and ‘give[n]’ them notice of her desire to sever. Whilst her later
change of mind would have no bearing on a validly served notice, it could possibly
be used in these circumstances to buttress the argument that she failed to give
them formal notice and lacked any serious intent to do so. Taking all this into
account, it seems likely that a court would hold that Venus has not severed her
interest (but students who determined otherwise would not be penalised provided
their analysis remained internally consistent). A number of candidates sought to
argue that, whilst the email was not a valid form of statutory severance, it came
within one of the three forms of common law severance as recognised in Williams v
Hensman [1861] even though: it was not irrevocable (as required under operating
on one’s ‘share’); there was no agreement (as required under mutual agreement)
nor a continuing negotiation/dialogue (as required under mutual conduct).
Proceeding on the basis that Venus did not sever her share, the next issue
concerns Ursula’s death, where her interest consequently dies with her under the
right of survivorship as held in Re Caines [1978]. As a joint tenant, both at law and
in equity, she therefore disappears from both titles (which is a better way of putting
it than saying her share(!) passed to the others). The legal title is henceforth
vested jointly in Sam, Tarquin and Venus, who hold on trust for Sam, who retains
his 20 per cent as a tenant in common, alongside just Tarquin, Venus and Zachary
who now jointly own the remaining 80 per cent. Ursula’s testamentary gift to Tarquin
is, of course, an irrelevance in respect of her interest in Tumbeldown as, once the
will became operative, she no longer had any interest.
Figure 3
Law
S+T+ U +V
Equity 1/5 S 4/5 T+ U +V+Z
b) This section simply requires students to apply TOLATA 1996. Under ss.12 and
13, Tarquin would not be able exclude the other two trustees, Sam and Venus,
whilst Zachary, who is only a beneficiary, would appear to have even less standing
in the matter. A consultation with the beneficiaries under s.11 would not get very far
although there would be a small technical majority in favour of sale. Practically,
however, that would have little bearing as, where there is disagreement amongst
the trustees, the only way to effect a sale would be for Tarquin and/or Zachary to
apply to the court under s.14. In exercising its discretion the court would be required
to consider: the reason why Tumbledown was acquired (s.15(1)(a)); the extent to
which the purpose had changed (s.15(1)(b)); and the welfare of Venus’s child (s.15
(1)(c)), along with any other factors the court considered relevant. It is consequently
difficult to determine what the court would decide without knowing more about the
parties and their relative position. However, in light of Tarquin and Zachary’s
redundancies, it seems likely that the court would lean towards sale, sooner rather
than later, provided there were no exceptional circumstances. Given that no one
had been made bankrupt, there was no opportunity, as a number of candidates
unfortunately did, to turn to s.335A Insolvency Act 1986.
19
became increasingly muddled, fell into the various traps and often failed to mention
TOLATA.
Student extract
S, T, U and V as the first 4 named on the conveyance hold the legal title
jointly under s.34(2) LPA which states that a legal title in land may only be
held jointly by up to 4 persons. The facts state that the parties contributed
unequally to the purchase price and therefore there would usually be a
presumption that the beneficial interest was held under a tenancy in common
in proportion to their contributions under a resulting trust or possibly some
other proportions under a constructive trust. It was however stated in the
conveyance that the beneficial interest is to be held jointly and thus S,T,U,V
and Z hold the equitable interest under a joint tenancy as the contributions
are then an irrelevance (Goodman v Gallant)...
…S sent a letter stating he wanted Tumbledown sold immediately. S.36(2)
says severance must be in writing. It must be properly served and this occurs
when it is received. The communication must indicate a wish to server
immediately (Burgess v Rawnsley). When severance occurs only the
severing party becomes a tenant in common. The others remain as JTs So S
acquires a 20% share and U, T, V, Z hold the remaining 80% as JTs….
…V sent an email indicating that she wanted to sell with immediate effect.
However this was sent to everyone at Fat Chance. One might not think that
the notice was not served on all the other joint tenants but the facts state they
all worked there. It does not matter whether they have read it as it was
delivered. The effect of V’s email is a severance and she gets a 20% share in
the beneficial interest similar to S.
U dies in a car crash leaving her property to T. Severance cannot be by will
(Re Caines)….
Comments on extract
This is an extract from a clear and succinct essay that achieved a sound 2:1 overall.
The candidate clearly knows the law although the answer would benefit from more
discussion re the issues. On V’s possible severance, for example, the candidate
needed to think about the policy issues regarding the recognition of emails under
s.196 and should also have discussed EON. There is also an incorrect citation of
Burgess, which is not an authority regarding statutory severance. The essay would
also have profited from the candidate briefly explaining why each authority cited is
relevant. Please note the candidate was not penalised for deciding that V’s email
amounted to a severance, as essays are not marked down when there is room (as
there often is) for disagreement in applying the law to the facts under consideration.
20
LA3003 Property law – Zone B
Introduction
Despite recent Property law Examiners’ reports beginning with practical tips on how
students might leverage their knowledge and do well in the examination, far too few
of you heed our advice. Thus this year, as in previous years, the examiners were
confronted by large numbers of students who, despite evident hard work, failed to
achieve their potential because of poor technique. As we have said repeatedly (in
the vain hope that you will believe us!) please remember that the examination is not
a test of knowledge but of the application of knowledge and, before considering the
substantive advice on each question below, make sure you have assimilated the
following general advice. We estimate that over 90 per cent of the scripts we see
each year would be improved if students took on board these various simple yet
critically important practical points.
alternate lines as this invariably makes reading (and therefore marking)
easier.
hone your skills before the examination by reading articles and cases while
the internet.
not and just irritates the examiner. Focus on the question asked, and the
have said in your essay. Here is your chance to reflect on what went before
1
number of possible ratios on which jurists might well disagree, whilst those
lawyers rich!
spending on your last answer.
writing a judgment that has come to you in case stated form. You are there
to apply the law to the given facts, willing to reject first instance decisions,
overturn CA precedents and, although nominally bound by HL/SC
decisions, still able to criticise or distinguish them.
juristic writings).

Question 1
Sarah and Molly are the owners of a small cottage and garden that they
bought in 1990. As they wanted to use the garden to grow organic vegetables
they erected a climbing frame, for their daughter Nikita, a few metres into a
large area of wasteland at the end of their garden. The wasteland was owned
by European Nuclear Fuels (ENF) who, as the registered proprietors, had
unsuccessfully applied for planning permission to build a nuclear power plant
on the site. Nikita invited children from the local village to play on the
climbing frame and, as a keen footballer, began playing football on the
wasteland with her new friends. As there was no football pitch in the village
Sarah and Molly installed goalposts and, a little later, planted turf to improve
the playing service. They also dismantled the fence separating their garden
from the wasteland and, after hearing rumours that an area beyond had been
contaminated by radiation, installed a new fence beyond the football pitch to
2
stop Nikita and her friends wandering further. On discovering what had
happened ENF’s public relations department issued a press statement
welcoming the fact that the wasteland was being used to provide sporting
facilities for the local community.
In May 2007 Nikita left home and the football pitch soon became overgrown. A
couple of months later, Dillon, a new age traveller who toured the country
protesting against nuclear energy arrived with the intention of setting up
camp on the wasteland. Because of his fear of radiation he pitched his tent on
the football pitch which he knew, from consulting the land registry website,
also belonged to ENF despite appearing to be part of the cottage garden.
Sarah and Molly decided not to confront Dillon about his intrusion although
they soon reinstated the former fence, separating their garden from the
wasteland, when he began helping himself to their vegetables. As he had no
other source of food or income Dillon removed the football posts and dug up
the pitch to plant vegetables, much to the consternation of ENF’s public
relation’s department who issued another statement condemning the anti-
social activities of the anti-nuclear movement.
Last week ENF were granted planning permission to build a nuclear power
plant.
a) Advise ENF on their rights regarding the wasteland.
b) How, if at all, would your advice differ if title to the wasteland was
unregistered?
General remarks
This was a comparatively difficult question and students could consequently
achieve high marks, even where they were tripped up by some of the detailed
points, provided they had a good general grasp of the differing potential outcomes
under the various possible scenarios.
Land Registration Act 1925 s.75, Limitation Act 1980, Land Registration Act 2002,
Sch 6, Land Registration For The Twenty-First Century A Conveyancing
Revolution Law Com No 271, Pye v Graham [2002], Powell v MacFarlane [1979],
Techbild v Chamberlain [1969], Hounslow v Minchinton [1997], Bucks CC v Moran
[1990], Wallis’s Clayton Bay Holiday Camp v Shell Mex [1975].
Common errors
Too few candidates went through the issues in a chronological order or explained
the principles upon which they were proceeding.
begin by establishing when the adverse possession began as, on a question such
as this, it is important to determine whether 12 years of adverse possession had
been completed before the Land Registration Act 2002 came into force, on 13
October 2003. The critical date is therefore 12 years earlier as, if the adverse
possession began on or before 13 October 1991, and lasted continuously for at
least 12 years, the situation is governed by the Land Registration Act 1925, s.75. In
contrast, if the adverse possession began after that date, the process under the
Land Registration Act 2002 Sch 6 would apply. Adverse possession requires both
intent to possess and factual possession and you need to consider, by reference to
the facts and case law, what acts would constitute evidence of each. As is often the
case, Sarah and Molly’s use of ENF’s land becomes more intensive over time and
you need to demonstrate to the examiner that you realise that, at some point after
Sarah and Molly bought their cottage in 1990, the threshold was crossed and
adverse possession began. Factual possession is a contextual assessment (Powell
3
v MacFarlane [1979]) and you could conceivably argue therefore that it arose near
the outset, when the climbing frame was installed and the children started playing
on it, as that is, after all, the type of use consistent with the possession of a garden.
On the contrary, however, it might be suggested, on the basis of Techbild v
Chamberlain [1969], that those acts are too equivocal and transitory, in which case
perhaps the installation of the goal posts, the laying of the turf or maybe only the
erection of the new fence will suffice (whilst, the fact it was installed to keep the
children in, rather than the world out, does not preclude it evidencing the necessary
factual possession, as demonstrated in Hounslow v Minchinton [1997]). In addition
to factual possession, the squatter must, of course, also establish intent to possess
as the clock does not start clicking until both have arisen. This is a somewhat
artificial enquiry in which the court tries to establish the necessary intent to exclude
the world. The building of a fence, as established in Bucks CC v Moran [1990] will
often furnish such an intent, although in this case we have the difficulty, as
discussed above, that the fence was not erected for that purpose. Somewhat
paradoxically, however, could you not argue that in dismantling the old fence, Sarah
and Molly demonstrated the necessary intent to possess, as they only did so to
increase the area they used as a garden? Whatever you decide (and, please
remember, we do not need to agree on what the critical events were) you should
make the point that, because we have not been told when these subsequent events
occurred, it is not clear whether adverse possession commenced before or after 13
October 1991. You should consequently make clear to the examiner that a court
would need to establish these facts. In the meantime, you are best advised to
answer in the alternative, after first establishing that ENF’s press release probably
did not establish an implied licence (something that can still arise, as a question of
fact, even though it can no longer be implied as a question of law, following the
reversal of Wallis’s Clayton Bay Holiday Camp v Shell Mex [1975] by the Limitation
Act 1980, Sch 1, para.8(4)). If the adverse possession began before 13 October
1991, ENF held the registered title from 12 years after that date, on trust for Sarah
and Molly, under LRA 1925, s.75. In which case they can now assert their equitable
title, against both ENF and the subsequent squatter, Dillon, who has not been in
adverse possession for the necessary 10 years as discussed below. If, on the other
hand, adverse possession did not commence until after 13 October 1991, no
statutory trust would have arisen against ENF under the LRA 1925. In that situation
Dillon’s position would be governed by LRA 2002 and the clock will have reset,
either because Sarah and Molly abandoned their possession in May and the
adverse possession was therefore interrupted, or because they maintained it until
dispossessed by Dillon a few months later, in which case the clock resets under
s.11. Clearly, therefore, in either case, Dillon does not currently (i.e. in May 2016
when the question was examined) have the requisite 10 years of adverse
possession under his belt to make a first application to be registered under the LRA
2002 and is therefore liable to ENF who may sue for possession. Surprisingly
perhaps, in the latter situation he is likewise also liable to Sarah and Molly because,
as dispossessees, they retain a right, as prior possessors of the land, to maintain
an action for possession against their dispossessor, Dillon for 12 years (i.e. until
2019) under the Limitation Act 1980 (see Asher v Whilock [1865]). This is because
their possessory (but still legal) fee simple, which dates from the moment they
commenced adverse possession in the early 1990s, is not a registered title
governed by the LRA 2002 and therefore treated like any other unregistered title.
b) If the wasteland was unregistered, ENF’s title would, of course, have been
extinguished after 12 years of continuous possession by one or more adverse
possessors. Provided Sarah and Molly commenced their adverse possession
before May 1995, ENF’s title would therefore have come to an end before they went
out of possession in 2007. In the unlikely event that their adverse possession did
4
not begin until after May 1995 you again need to ask (at least in determining the
fate of ENF’s title) whether they abandoned their possession in May 2007 or were
dispossessed by Dillon a few months later. In the former case, the clock will have
reset, as the adverse possession was not continuous, and ENF will therefore retain
their title, as Dillon has not yet established 12 years of adverse possession since
the clock started ticking afresh from 2007; while, in the latter case, the two periods
of continuous adverse possession are aggregated and ENF’s title extinguished after
a total of 12 years. Provided Sarah and Molly are not held to have abandoned their
possession in May 2007, they (as already discussed above) have until 2019 to
commence possession proceedings against Dillon, irrespective of whether ENF’s
title was extinguished by the time they were dispossessed. In contrast, if they did
abandon their possession beforehand, they have no rights against Dillon, this time
irrespective of whether ENF’s title is now extinguished (Mount Carmel v Smee
[1988]).
simply regurgitated the law on adverse possession to varying degrees of accuracy
and with little if any attempt to address the complexities.
Question 2
Alastair was the registered owner of Grantchester, where he lived with his
long term companion, Nick, who paid the entire purchase price. Grantchester
is a country estate that includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair granted Stephen by deed a ten year lease of White Field.
ii) Alastair agreed in writing to grant Dawn the right to use a shortcut
iii) Nick was detained in a secure hospital having suffered a nervous
breakdown.
Last month Alastair sold Grantchester to Iggy who is now the registered
owner of Grantchester. After moving in, Iggy asked Stephen to leave White
Field and refused Dawn permission to cross Gold Field. In the meantime
Roger has asked his solicitors to complete his purchase of Grantchester,
whilst Nick is planning to return to Grantchester on his discharge from
hospital tomorrow. Alastair has now disappeared with the proceeds of the
sale, whilst Iggy has asserted that he is not bound by Roger’s interest and
has changed the locks to ensure Nick cannot let himself into the house.
a) Advise Stephen, Dawn, Roger and Nick.
b) Explain briefly how, if at all, your advice would differ if all the above
unregistered title.
General remarks
This is a standard problem question on priorities in registered and unregistered title
and is testing your ability to apply the statutory provisions that govern each.
Law of Property Act 1925, Land Charges Act 1972, Law of Property (Miscellaneous
Provisions) Act 1989, Land Registration Act 2002, Chaudhary v Yavuz [2011],
Chhokar v Chhokar [1984].
5
Common errors
Despite warnings in previous Examiners’ reports, many students waste time on
irrelevancies. In (i) for example you have been told that a lease has been granted
by deed and thus it is a complete waste of time (for which you will gain no credit) to
detail the requirements of a valid deed and/or lease. There is no issue here as the
question categorically states that point and thus it must follow that the requirements
for both a valid lease and deed have been met. The point in (i) is not to second
guess the examiners, by doubting our word as to what occurred, but to consider
how and in what circumstances the formal lease granted by Alastair will bind the
subsequent purchaser, Iggy. In contrast under (ii), it is acceptable to briefly detail
the requirements of a valid easement as the right described could either be an
easement or a licence and, as you have not been told which, it is important to
consider the possibility of either and the factors by which one or other would be
established. But please remember the main issue in (ii), as in (i), (iii) and (iv),
remains the question of priority and thus each answer should concentrate primarily
on how and in what circumstances the right granted by Alastair will bind the
subsequent purchaser, Iggy.
look at each issue in turn. Your answer should therefore be divided into the
following 8 sections after noting that, as Alastair ‘sold’ Grantchester to Iggy, the
latter is presumably a purchaser under the differing requirements of both the LCA
(s.4) and the LRA (s.132).
(a) (i) Under LRA 2002, s.27, a lease over seven years (even if granted by
deed) is not legal unless it has been substantively registered, in which case
it will bind Iggy. If it is not so registered it will only take effect in equity but
may be protected by means of a notice (s.33) and will, insofar as the
interest is valid (s.32), bind Iggy (s.29). If it is not substantively registered,
nor protected by means of a notice, it will only bind Iggy as an overriding
interest if coupled with discoverable occupation (s.29 and Sch 3, para.2).
As a lease over seven years it cannot also be an overriding interest under
Sch 3, para.1.
(ii) Dawn’s interest might simply be an express licence which, as a personal
right, would not bind Iggy and is not registrable, nor protectable, nor
capable of being an overriding interest. As there is a dominant and servient
tenement, owned by different parties, the shortcut may amount to an
easement provided there is sufficient proximity between the house and the
field, which, on the facts, seems highly likely. Despite the likely use of a
deed (‘grant’), as required under LPA, s.52, in the absence of substantive
registration (LRA, s.27) the express easement would only be equitable
(complying with LPA, s.53(1)(a)). Such an interest is protectable by means
of a notice (LRA, s.33), which will, insofar as the easement is valid (s.32),
bind Iggy (s.29). As an equitable easement, it cannot be an overriding
interest under Sch 3, para.3, which only applies to informal legal easements
arising impliedly or by prescription.
(iii) Provided the written agreement complies with LP(MP)A 1989, s.2 and is
consequently signed by both parties, it is a specifically enforceable contract
to transfer an interest in land, which, as an estate contract, is protectable by
means of a notice (LRA, s.33), in which case Iggy will again be bound but
not otherwise.
(iv) Nick contributed the entire purchase price, and in the absence of
evidence of gift, is likely to hold a beneficial interest under either an express
or, in the absence of any signed written evidence of express declaration
6
(LPA, s.53(1)(b)), implied trust (either resulting or constructive, s.52). As an

overreachable interest (s.2) it is neither substantively registrable (LRA,
s.27), nor protectable by means of a notice (s.33). However, a restriction
might be entered (s.40), requiring that any disposition of the legal title
comply with the requirements of overreaching, mandating any proceeds of
sale be paid to at least two trustees or a trust corporation (LPA, s.27). As
Alastair, as sole legal owner, entered into a disposition transferring title to
Iggy, no such restriction could have been in place. Nick’s interest has
consequently not been overreached but will only bind Iggy if coupled with
discoverable occupation (s.29 and Sch 3, para.2). It consequently has to be
established whether, despite his physical absence in hospital, Nick remains
in occupation (which seems likely – Chhokar v Chhokar) and, if so, whether
either: the occupation (rather than the interest) was discoverable (which
appears more problematic); or else, whether the interest (rather than the
occupation) was known personally to Iggy (about which we have no
evidence).
(b) (i) As a legal interest in unregistered title the lease binds the world including
Iggy.
(ii) If it is an express licence, Iggy is not bound by a purely personal
interest. If, on the other hand, it is an easement granted by deed in
accordance with LPA, s.52, it is legal and consequently binds the world
including Iggy.
(iii) If it is an estate contract, Alastair could have registered it as a Class
C(iv) Land Charge (LCA, s. 2) in which case Iggy is bound but otherwise
takes free irrespective of his knowledge.
(iv) As an overreachable interest that has not been overreached, Nick’s
interest is governed by the equitable doctrine of notice and Iggy will take
free unless he has actual, constructive or imputed knowledge of Nick’s
interest.
priority or showed little real understanding of how the rules of priority worked. Far
too many students sought to apply the Land Charges Act in the context of
registered title, where it has no application.
Student extract
(a)(ii) Provided that the easement was granted by deed complying with LPA
1925, s.52 and substantively registered under LRA 2002, s.27 it will be a
legal easement that binds Iggy. On the other hand if Dawn fails to
substantively register the easement it will only be equitable even if granted by
deed and must be protected by means of a notice under s.32 LRA 2002.
However if it has not been protected by means of a notice it is not an
overriding interest under Sch 3 Para 2, as this was rejected in Chaudhary v
Yavuz, nor under Sch 3 Para 3 which only applies to implied legal
easements.
(b)(ii) Dawn’s easement would bind Iggy since legal easements bind the
whole world.
Comments on extract
This is a good clear technical answer. The candidate clearly understands how the
rules of registered and unregistered conveyancing apply and although the answer
does not explore the possibility of the, assumed, easement being a licence that is a
7
minor issue and, provided the same high standard had been maintained throughout
the answer, would have achieved a clear first.
Question 3
‘The relationship between constructive trust and proprietary estoppel remains
difficult to discern with any great degree of confidence.’
Discuss.
General remarks
This is a standard question that should not come as a surprise to any well prepared
student.
Law of Property Act 1925, Law of Property (Miscellaneous Provisions) Act 1989, no
particular cases are expected as there are a wide selection illustrating the
overlapping doctrines of constructive trust and proprietary estoppel.
Common errors
Were repeated failure to engage with the question ask and offer a coherent,
reasoned and supported thesis.
note that a common intention constructive trust occupies similar territory to
proprietary estoppel; for, whilst the latter requires an assurance coupled with
detrimental reliance, the former arises where there is a common intention again
coupled with detrimental reliance. There is a very useful academic discussion on
this in Crossco No 4 Unlimited v Jolan [2011]. Despite occasional judicial comments
to the contrary (e.g. Lord Walker in Yaxley v Gotts [2000], which he later recanted in
Stack v Dowden [2007]) and the obvious similarities in their ingredients, they
represent two separate causes of action. Somewhat confusingly, one of the
remedies that might be awarded under proprietary estoppel is a constructive trust;
but when used in this sense it is referring to a trust imposed by operation of law and
not the separate cause of action whose full title is the common intention
constructive trust. It is sometimes said that, whilst proprietary estoppel arises on the
basis of a unilateral assurance, a constructive trust arises on a bilateral agreement
and, whilst this is superficially attractive, it is not really supported by case law in
which the courts have often interpreted unilateral assurances as common intention
constructive trusts (e.g. Grant v Edwards [1986]). The reality is that both can be
triggered by some form of assurance coupled with detrimental reliance and thus can
be (and often are) pleaded together in the alternative. As you will see again in the
Trusts course, the constructive trust tends to be relied upon in family home
situations (e.g. Stack v Dowden [2007]) whereas proprietary estoppel is the
favoured cause of action in respect of testamentary disputes. There appears to be
no logical reason for the relative absence of proprietary estoppel in much of the
family home case law. This is probably just an historical accident and is not without
exceptions. In Southwell v Blackburn [2014], for example, an estoppel arose in a
family home scenario where, in the absence of common intention, the court
awarded £28,000 to a woman on the basis of the equity that arose in respect of the
assurances on which she had detrimentally relied. In contrast, the preference for
proprietary estoppel in the field of testamentary dispositions does seem more
understandable. This is in part because the fact scenario in such cases often
involves a hierarchical familial setting to which the unilateral nature of the
proprietary estoppel assurance seems more attuned; and also because its more
flexible range of remedies is much better suited to addressing the inequities that
might arise, given the array of assurances that testators might make. In contrast,
the only remedy under a constructive trust is a beneficial share of the equitable
8
interest; although in the family home context there seems no great need for
anything more. Finally (although there is much more that might be written on this
interesting but far from resolved area of the law), reference is sometimes made in
some of the cases to which you have been referred (e.g. Cobbe v Yeoman’s Row
Management Ltd [2008]) to the fact that there is often a specific statutory exemption
for constructive trusts, but never for proprietary estoppel, in some of the formality
statutes (e.g. LPA 1925, s.53(2); LP(MP)A 1989, s.2(5)). This occasionally leads
the courts to favour using a constructive trust rather than proprietary estoppel to
overcome some defect in the statutory formalities, although the better view is surely
that as a creature of equity it requires no statutory saving (although that begs the
question why constructive trusts do!).
simply recited rote learnt pre-prepared essays on formalities and/or constructive
trusts with no attempt to address the question asked.
Question 4
‘In Street Mountford the House of Lords assured us that a valid lease has
three elements: certainty of term; exclusive possession; and rent. Yet one is
entirely unnecessary; another, although technically necessary, can be
avoided by either the draftsman’s or the court’s sleight of hand; and the third,
whilst absolutely necessary, is not always sufficient.’
Discuss.
General remarks
This is a question on the TWO substantive requirements of a valid lease and the
third probative ingredient, often wrongly cited by students (and the occasional Law
Lord!) as the third substantive requirement.
Law of Property Act 1925, Lace v Chantler [1944], Re Midland Railway Agreement
[1971], Ashburn Anstalt v Arnold [1989], Prudential Assurance v London Residuary
Body [1992], Berrisford v Mexfield [2012], Street v Mountford [1985], AG Securities
v Vaughan [1990], Antoniades v Villiers [1990], Ashburn Anstalt v Arnold [1989],
Bruton v London Quadrant [1999], Facchini v Bryson [1952].
Common errors
A fair few candidates assumed the three elements were listed in the same order as
the three comments and then tied themselves in knots trying to argue that certainty
of term is unnecessary, exclusive possession avoidable, and rent necessary but
insufficient. We deliberately avoided using the same order to ensure candidates
thought about their answer and believed we had placed them in an order that made
this absolutely clear. We were surprised anyone, knowing recent case on the
subject, could do otherwise.
be divided into three sections. Rent, as unequivocally stated in LPA 1925, s.205, is
unnecessary despite the comments of Lord Templeman in Street as confirmed, in a
somewhat disingenuous manner, by the CA in Ashburn Anstalt v Arnold [1989].
While a review of certainty of term would surely conclude that it was technically
necessary but easily avoided. This would require a discussion beginning with Lace
v Chantler, and covering the conceptual difficulty in applying the principle to periodic
tenancies, chronicling examples of judicial disenchantment with, and glosses on,
the rule including Midland Railway Agreement and Ashburn and charting the return
to a very rigid orthodoxy under Prudential. You should then conclude your
assessment by considering the judicial ingenuity employed in effectively avoiding
the rule in certain situations under Mexfield and how a lease could be drafted to
9
likewise avoid the rule (e.g. a one billion year maximum term subject to a condition
limiting the term to the duration of the war). Finally, you would turn to exclusive
possession and explain how it is necessary but not conclusive as discussed in
Facchini v Bryson where Denning reviewed the areas where a lease might not exist
notwithstanding the grant of exclusive possession including a service occupation
contract, an act of charity or friendship, absence of intent to create legal relations, a
mortgagee in possession and a purchaser in occupation under an enforceable
contract of sale. A good essay might also cover the discussion of exclusive
possession in Bruton and the House of Lords flirtation with a non-proprietary lease.
wrote generalised essays that showed little if any understanding of the points
raised.
Student extract
Rent is one that is probably entirely unnecessary. In Ashburn Anstalt v Arnold
it was held that rent is not necessary for a lease. However sometimes it will
be critical, for example if one wants to establish a short lease under LPA
s.54(2) in which case a market rent is required. Whilst under a periodic
tenancy rent is also required.
Certainty of term is an important element. In Lace v Chantler a lease for the
duration of the law did not constitute a certain term and was not a valid lease.
However in Mexfield v Berrisford, where certainty of term could not be shown,
the court held there to be a valid lease as it could constitute a lease for life,
converted to a 90 year lease under LPA s.149(6). Does it mean that certainty
of term is unnecessary if we can easily rely on s.149(6)? Some academic
commentators hold a contrary view. Howard & Cowan in ‘Mexfield and
Beyond’ state that the case is only applicable to social housing situations. If
that is the case certainty of term will no longer be easily avoided.
Exclusive possession will always be an essential element for proving a valid
lease. In Facchini v Bryson however there are three categories where, even if
all the elements under Street v Mountford are present there will not be a
lease. These are…
Comments on extract
This is a short extract from a good essay that clearly addressed the issues raised in
the quotation. The student had correctly identified each element in Street to which
each epithet in the quotation referred and takes a reasoned and critical approach.
The essay is not perfect, of course, and fails to consider the important issue of how
a draftsman might avoid certainty of term, and would also be improved if reference
were made to the level at which the more important precedents were established
(e.g. SC, HL, CA, HC). However, the candidate shows a good mastery of the
subject and evidence of reading (and understanding) academic articles. This would
get at least a high 2:1 if the standard was maintained throughout despite the failure
to consider that important element re certainty of term.
Question 5
Sarah was the owner of a piece of land abutting a river. Five years ago she
entered into a contract with David who covenanted to maintain the flood
defences abutting her land for the next twenty years. The following year her
neighbour Romulus divided his large area of land into eight separate plots on
each of which he began building a house to sell. Sarah decided to do likewise
dividing her smaller piece of land into two separate plots and agreed with
Romulus to create a small exclusive estate of ten houses for sale. In order to
enhance their value and prestige, they decided to include covenants to the
10
following effect in each house sale. The covenants required each purchaser
to agree that:
i) Their property would only be used for residential purposes.
ii) Each owner would pay 10% of the costs of maintaining the estate’s
private road.
iii) Each owner would pay 10% of the costs of providing free boat trips on
the river.
Romulus then sold plots 1 to 8 with each purchaser entering into a covenant
with him on these terms. Sarah then sold plot 9 to Jack who covenanted on
the above terms with ‘Sarah and the present owners of plots 1 to 8’. The
contract also included an assignment of the benefit of David’s covenant to
maintain the flood defences. The following week Sarah sold plot 10 to
Beatrice who covenanted with Sarah in similar terms although this time the
contract made no reference to the owners of the other plots, nor included any
written assignment of the benefit of David’s covenant.
Jack has recently converted his house into a hotel and is refusing to pay for
the maintenance of the road or the provision of boat trips, whilst the entire
estate has become waterlogged after David failed to maintain the flood
defences.
a) Discuss.
b) How, if at all, would your advice differ if Beatrice, rather than Jack,
was acting in breach of these covenants?
c) How, if at all, would your advice differ if Ahmed, a successor in title
to Beatrice, was acting in breach of these covenants?
General remarks
This is a problem on non-leasehold covenants (often referred to in textbooks as
freehold covenants) that tests students’ understanding of the principles that apply in
this area to both the original parties and those to whom either the benefit or burden
has passed.
Law of Property Act 1925, 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].
Common errors
This question was answered very poorly by the majority of candidates, with most
answers failing to identify the original parties to the covenant, nor whether a
particular issue involved the passing of the benefit or the burden. It was obvious
that many of those who attempted the question had no real understanding of the
principles that govern non-leasehold covenants, offering formulaic responses that
simply highlighted their confusion.
Be divided into three sections as discussed below.
a) There are four, rather than three, covenants to consider: not only (i), (ii) and
(iii) but also the contract between David and Sarah which we will consider
first.
David and Sarah are the original parties to a covenant to maintain the river
defences under which David, as covenantor, assumes the burden and
Sarah, as covenantee, the benefit. Under normal contractual principles
11
David is clearly liable on the covenant (at law but not in equity)
notwithstanding he has no land burdened by the covenant, as illustrated in
Smith & Snipes Hall Farm v River Douglas Catchment Board [1949]. As for
the benefit, Sarah can, as holder of a chose in action that is not exclusively
personal, assign it provided she does so in writing in accordance with Law
of Property Act 1925, s.136. Thus, when Jack bought plot 9, he acquired
the benefit of the covenant under an express assignment and can sue
David, as original covenantor, for his failure to maintain the flood defences.
In contrast, when she acquired plot 10, there was no similar assignment of
the benefit to Beatrice and thus she can only sue David if the benefit
passed at law because it was annexed to the land she acquired. Under
Rogers v Hosegood [1900], the benefit can only be annexed at law if it, as
the flood defences clearly do, touches and concern the land of Sarah, the
original covenantee; while both parties must also, as appears highly likely
here, have had a legal estate in the land (although, under LPA 1925, s.78,
not necessarily the same legal estate). In the absence, as here, of an
express annexation, a statutory annexation under s.78 will then arise, under
Federated Homes v Mill Lodge Properties [1980], unless a contrary
intention is shown (Roake v Chadha [1984]). Therefore Beatrice, as legal
owner of plot 10, can, like Jack, also sue David for his failure to maintain
the flood defences; unlike Romulus, or the owners of plots 1 to 8, who,
despite their practical interest in the flood defences being maintained, have
no contractual nexus with David enabling them to enforce the covenant.
Turning to covenants (i), (ii) and (iii), Jack, as original covenantor, is liable
for their breach irrespective of whether the burdens are positive or negative.
He can, consequently, be sued by Sarah as original covenantee, although,
as she has parted with the benefited land (plot 10), any damages will
probably be nominal, with the court similarly unlikely to grant an equitable
remedy. However, under LPA 1925, s.56, the ‘present owners of plots 1 to
8’ are also regarded as parties to the covenant and can therefore sue Jack
on all the covenants and, insofar as they retain their plots, be awarded
substantial damages and/or injunctive relief. Whilst neither Beatrice, nor
any successors in title to plots 1 to 8, are parties to the covenants under
LPA, s.56, they can sue on (i) and (ii) under Federated Homes, provided
they acquire a legal estate, as both covenants, unlike (iii), touch and
concern the land and thus the benefits will, in the absence of contrary
intention, be statutorily annexed under LPA, s.78.
b) Beatrice, as original covenantor, is likewise liable, like Jack, to the original
covenantee Sarah but not the owners of plots 1 to 8, under s.56, as they
were not similarly mentioned in the conveyance. Nor is she liable at law to
Jack, as he bought plot 9 before she made the covenant with Sarah and
thus the benefit could not have been annexed at law to the land he
acquired at the time he bought it. However, as they touch and concern the
land, the benefit of covenants (i) and (ii) might pass in equity to the owners
of all the other plots (e.g. plots 1 to 8, Jack and their successors in title
whether they acquire a legal or equitable estate), under a scheme of
development, where the absence of a common vendor is not critical (Re
Dolphin’s Conveyance [1970]), and the necessary reciprocity is clearly
present.
c) Ahmed, as a successor in title to Beatrice, will be similarly liable to the
owners of all the other plots, like her, under a scheme of development, but
only in respect of covenant (i), provided the burden has been protected by
means of a notice (registered title) or a Class D(ii) land charge
12
(unregistered title), as it is negative; unlike covenant (ii) where the burden is

positive and cannot therefore pass either in law or in equity.
talked about the burden passing to Sarah and Jack, seemingly oblivious of the fact
that they were the original parties to the covenant and did not appreciate that (a)
and (b) dealt exclusively with the passing of the benefit and only (c) was concerned
with the passing of the burden.
Question 6
Andy was the registered owner and occupier of a house with an adjoining
commercial garage. In 2007, when Andy retired, he granted Barney a lease of
the garage for a period of five years. For many years there had been a sign
advertising the garage on the side wall of the house next to the main road,
however Andy removed it a few weeks after Barney took possession of the
premises. The forecourt of the garage was quite small and Andy had
occasionally parked cars awaiting repair on the drive of his house, but, when
Barney began doing so, Andy asked him to stop. In retaliation Barney told
Andy that he would no longer be allowed to cross the garage forecourt, which
separated the drive from the main road. This prevented Andy parking his car
on the drive although it was still possible to access the drive on foot via a
footpath that ran between the forecourt and the house. A few weeks later
Andy and Barney decided they were both being petty; Andy allowed Barney
to reinstate the advertising on the side of his house and said he could use the
drive occasionally in return for Andy being allowed to resume driving over the
forecourt. In 2012 the lease was renewed for another 5 years at which point
Barney told Andy he was, once again, no longer permitted to drive over the
forecourt. Andy consequently painted over the advertising sign and refused
to let Barney use his drive.
Discuss.
General remarks
This is a standard problem on easements where candidates have two basic
questions to determine. First, is the putative right capable of being an easement
and secondly, if so, how, if at all, has it been created? Although an easement can
arise expressly, impliedly or by prescription, you only need to consider the first two
possibilities in any question, as the third is not currently examinable.
LPA 1925, s.62, Moody v Steggles [1889], Hill v Tupper [1863], Re Ellenborough
[1956], Wheeldon v Burroughs [1879], Wood v Waddington [2015], Ward v Kirkland
[1967], Hillman v Rogers [1998], Wheeler v Saunders [1995], Millman v Ellis [1996],
Platt v Crouch [2003], Alford v Hannaford [2013], Batchelor v Marlow [2001],
Moncrief v Jamieson [2007], R Square Properties v Nissan Motors [2014], Peckham
v Ellison [1998], Re Dodd [1843].
Common errors
Candidates often failed to address both questions in respect of each of the three
potential easements and failed to show a proper appreciation of the differing
requirements under which an easement might be implied under necessity, common
intention, Wheeldon v Burroughs and LPA, s.62. A sizeable minority of students
failed to appreciate the difference between implied grants and reservations in
respect of both when they might arise and the conditions under which they are
governed.
13
Consider each of the potential easements in turn. It is debatable but it is probably
worth postponing discussion concerning the subsequent facts, regarding the
parties’ reconciliation and subsequent further breakdown of relations, to the end of
the essay after first exploring the initial position pertaining at the point the first lease
was granted.
a) Something promoting a business is capable of being an easement and
students should contrast Moody v Steggles [1889] and Hill v Tupper [1863]
in deciding that this interest, in accommodating the land (as opposed to
Barney), does fulfil the necessary Re Ellenborough requirements of a valid
easement (dominant/servient tenement, different owners, accommodation,
subject matter of a grant). Such an easement could have been expressly
granted when the lease was granted, although we have no evidence that
such a grant took place. However, candidates should note the possibility,
as that is what a lawyer should first ask but, on the assumption that there
was not an express grant, we now need to consider whether it arose by
implication. There are four possible means by which an implied grant of an
easement might occur: necessity; common intention; Wheeldon v
Burroughs; and LPA 1925, s.62. Clearly, the grant could not arise under
necessity as it is not possible to argue that Barney could not use his land
without the advertising sign. Likewise, a submission based on common
intention is highly unlikely to succeed as, although there was no doubt a
common intention that Barney would run the garage as a business, it
cannot be argued that the advertising sign was necessary to achieve that
end. Obviously it would help the business, but that is not the test, as the
business could still run, albeit probably less successfully, in the absence of
the advertising sign. Clearly, had there been a more specific common
intention that the sign would be maintained, Barney could succeed on this
ground but there is no evidence to support such a claim on the facts stated.
Under Wheeldon v Burroughs, however, Barney has a greater chance of
success. As the sign existed prior to the granting of the initial lease, it
clearly fulfils the requirement of a quasi-easement, which, due to its very
physicality, was most certainly ‘continuous and apparent’. That might be
enough under Wheeldon, although the better view, following the
assumptions of the CA in Wood v Waddington [2015], is that the quasi-
easement must have been both ‘continuous and apparent’ and ‘necessary
for the reasonable enjoyment’ of the land. If that is, as seems likely, the law,
we now need to explore the final condition, although it is possible to argue
they remain alternative, rather than cumulative, conditions, as suggested in
Ward v Kirkland [1967] and, more ambiguously by Wheeldon. Determining
whether a right is ‘necessary for the reasonable enjoyment’ of the land is
not easy. The test is clearly not the same as necessity, as made clear in
Hillman v Rogers [1998] (cf. Wheeler v Saunders [1995] which is poorly
argued on this point), nor is it as specific as in common intention (where the
right must be necessary to achieve the specific common intention relied
upon). In this case, it would be determined by facts on which the question is
silent, regarding the extent of other advertising sites (Wheeler v Saunders
[1995]) and the relative importance of the site he is seeking to retain
(Millman v Ellis [1996]). Finally, candidates should consider LPA, s.62
because, although there was no diversity of occupation, before the initial
lease was granted, it seems, according to the CA in Wood v Waddington
[2015] (following Platt v Crouch [2003] and Alford v Hannaford [2013]) that
that is no longer a requirement where, as here, the purported easement is
‘continuous and apparent’. That will, on these facts therefore, generate an
14
implied easement, provided the initial lease was legally conveyed, without
requiring the court to additionally consider whether it was ‘necessary for the
reasonable enjoyment’ of the land, as they would have had to under
Wheeldon.
b) Even where, as here, the other Re Ellenborough requirements have been
met, a potential easement of parking, will always require an examination of
the subject matter of a grant question as such easement lie on the border
between non-possessory rights and possessory estates in land. You should
therefore be equipped to discuss recent case law and the difference of
views represented by the decision in Batchelor v Marlow [2001] and the
obiter comments of Lord Scott in Moncrief v Jamieson [2007], where even
the ratio, despite being a House of Lords decision, is only of persuasive
authority as the case concerned the (albeit almost identical) Scottish law of
servitudes rather than the English law of easements. Recent case law (R
Square Properties v Nissan Motors [2014]) appears to favour the broad
Batchelor approach, pragmatically seeking to establish whether the servient
owner retains reasonable use, rather than the more formalistic approach of
Scott, who would be willing to find an easement, even if the answer to that
question was in the negative, provided the servient owner had not
abandoned ‘exclusive possession’ (i.e. formal possession and control). On
these facts, however, the use would surely pass both tests and thus one
need not dwell overlong (although briefly showing your erudition on the
point would not go amiss). How the easement might arise, in the absence
of express grant, again requires you to look at the four possible methods
considered above although you can afford to be briefer over the conditions
pertaining to each, as there is never any point repeating yourself in an
answer. Clearly, necessity and common intention will again not apply
(unless, regarding the latter, there was a specific common intention to allow
the cars to be parked, of which we have not been told). Under Wheeldon v
Burroughs, although it might (just) be possible to point to a quasi-easement
(given the occasional previous use by Andy) it was clearly neither
‘continuous and apparent’ nor (even if they are alternative conditions)
‘necessary for the reasonable enjoyment’ of the land. In the absence of
prior diversity of occupation, invoking LPA, s.62 is similarly doomed given
the only occasional use.
c) Clearly, the right to cross Barney’s forecourt could be an easement as,
provided the plots are sufficiently proximate and in different hands, a right
of way will always fulfil the Re Ellenborough requirement regarding
accommodation and subject matter. However, as this is a potential
easement in Andy’s favour over the land he leased to Barney, the issue is
one of reservation, not grant, which, in the absence of an express
reservation, can only arise impliedly via necessity or common intention.
Common intention is normally more narrowly prescribed than in implied
grants and will only be a factor where there was a common intention to
reserve the specific easement claimed (Peckham v Ellison [1998]) which is
not the case on these facts. That leaves us with necessity where the
existence of another, albeit inconvenient, route means Andy is unlikely to
succeed (Re Dodd [1843]).
It is likely, therefore, that an implied easement will have arisen at the outset in
respect of the advertising sign but not the parking nor right of way. Consequently,
when Andy painted over it, Barney could rely on the right he acquired at the outset
to seek injunctive relief to restore the advertising sign. While Barney could not do
likewise, re the potential easement of parking, the subsequent licence granted by
15
Andy, prior to the grant of a new lease, means that under s.62 the licence Andy
granted Barney is likely to have been transformed into an easement. Barney
therefore now has both an implied easement of advertising (dating from the outset)
and an implied easement of parking (dating from the grant of the second lease).
Even though he was not the instigator of the current discord, Andy appears to have
no similar remedy against Barney, as the claimed right of way did not arise at the
outset and, as an implied reservation (rather than grant), cannot now arise under
s.62.
mechanically applied some or all of the various requirements with no real
understanding of what they comprised. It is not enough to learn a requirement by
rote; candidates need to be able to apply the requirement to the given facts and
thereby show the examiners that they understand it how it operates in practice.
Question 7
‘The modern mortgage of land is less a creature of doctrine than statute.’
Discuss.
General remarks
This is a standard essay on mortgages, much like the many previous examples in
the University of London Land and property law exam archives.
Meat & Cold Storage [1914], Samuel v Jarrah Timber [1904, Reeve v Lisle [1902],
Common errors
As in other questions on this paper, many students provided formulaic responses
that failed to address the question asked.
describe how the modern-day mortgage is doctrinally a product of the interplay of
common law and equity but, in the context of residential mortgages at least, cannot
be understood without a detailed knowledge of the statutory framework within which
they now operate. The essay should consequently begin with a critical assessment
of the equity of redemption and the no clogs and fetters jurisprudence before
documenting the increasing intervention of statute, referencing for example the
LPA, AJA, CCA, FSMA, etc.
simply wrote all they knew about mortgages, much of which might have been
relevant, if only it had been properly focused on answering the question posed.
Question 8
Samia decided to sell her nightclub to David, a financier who had made a
number of offers to purchase it over the years as it was his favourite venue in
which to entertain clients because of its unique décor and excellent
reputation. On purchasing the fee simple and taking possession David is
alarmed to discover that Samia has removed the following items:
i) silk printed wallpaper, the quality of which had recently been
mentioned in a review of the club in Time Off, a weekly magazine that
lists places to go in London;
16
ii) the bar stools and built-in seating that had been designed by a famous
interior designer especially for the club;
iii) mirrors on the interior walls installed to make the club look larger;
iv) antique mirrors hanging on hooks in the toilet areas;
v) the CCTV camera network that had been installed at the request of
police when a licence was originally granted to sell alcohol;
vi) the till system; and
vii) a large number of trees and shrubs growing in an outside smoking
area and in a number of tubs in the entrance hall of the club.
David seeks your advice on what, if any, items he may recover from Samia on
the basis they were fixtures forming part of the fee simple.
Advise David.
General remarks
This is a problem question on fixtures, one of the areas you are asked to investigate
in Chapter 1 of the subject guide. However, as this question was hardly attempted
by any candidates, we are going to go into more detail than is usual in the general
remarks. The problem question is designed to bring out the following broad themes,
although in the context of a problem, rather than as is more usual, an essay.
Whether something is or is not a fixture is determined by the application of two
tests: the degree of annexation and the purpose of annexation. Let us begin with
the first and try to work out why we bother to utilise such a simplistic approach at
the outset. Calling it simplistic sounds like a criticism but in fact that is the very
reason why we use it. Put simply, the annexation test is pretty black or white,
something is or is not attached to the land and, while there might occasionally be a
few doubts, generally we will have no problem in deciding whether or not something
is deemed to be a fixture by applying that criteria. It is important to acknowledge
that simple tests are extremely important for they are certain, easy/swift to apply
and, as a consequence, cheap to administer for there is little room for argument.
Provided they achieve the right result they are therefore very useful and non-
lawyers often ask why the law cannot always utilise black and white tests to provide
clear unambiguous answers. The problem is, however, that while tests can be black
and white, life most certainly is not; there are many shades of grey that cannot be
addressed by a simple binary process (something you saw last year when you
studied Criminal Law and the inappropriately inflexible mandatory life sentence for
every type of murder; from serial killers to mercy killings). One could therefore
simply reject black and white tests on this basis. However, in so doing, we would be
throwing the baby out with the bath water; by forsaking all the advantages we
began by listing. Provided the black and white test usually gives the right result it
would be ludicrous to reject it simply because it occasionally fails so to do.
In contrast to the degree of annexation, the purpose of annexation test is far more
nuanced. Such tests are extremely important to the law as they allow us to do
justice when faced with the complexities of a world where we often encounter
various shades of grey. But justice in this form comes at a high price as this form of
test lacks the same degree of certainty, is harder/slower to apply and expensive to
administer for there is much room for argument. One could, therefore, simply reject
this approach on that basis but it would again seem ludicrous to abandon a test that
works; particularly when it does so in exactly those situations where the black and
white test fails to provide a sensible solution. So how do we square this circle to
achieve both justice and certainty? The answer of course, as we have already seen,
is to employ both tests. Thus the simple quick and certain test is applied first.
Usually, that gives the right result and we stop there and stick with the presumption.
17
While if it is contended that an injustice has occurred and the wrong result achieved
(e.g. an ornamental garden comprising statues resting by their own weight) the
burden of proof is placed on the party seeking to remedy that injustice. In reality it is
a compromise between certainty and justice. The application of one or other test
would maximise one factor to the detriment of the other; only by employing both
tests in this way do we achieve a degree of certainty and justice which, in sum,
achieves more than the maximum either would achieve individually.
We could stop there but I would like you to take two further steps in this analysis for
what I have offered you is arguably an idealised account. First, the application of
the second test is more problematic than I have admitted. Not only is the purpose
test nuanced it is also subjective for, despite the fact the court is seeking to find the
objective purpose of the annexation (and not the subjective intent of the person who
made the annexation), it is still subjective because different judges will come to
different decisions on the same facts; that is why the case law in this area is
inconsistent. We consequently pay a high price for such subtlety and risk achieving
justice via the injustice of inconsistent judgments. Secondly I would ask you to be
really critical for a moment; could you argue what has gone before is little more than
smoke and mirrors? Try reading TSB v Botham and look at what really happens in
the case for, while purporting to apply the two tests, doesn’t the court simply seek to
achieve what, in its view, the market expects (a point also made by Blackburn
toward the end of his judgment in Holland). After all, the second test presents a
false dichotomy as to whether the thing was placed there to improve the thing or to
improve the land when in reality it is both (in the sense that the thing and its location
are important to the enjoyment of each) and neither (in the sense that it is not the
land nor the thing that is improved but the users enjoyment of each that is
enhanced). In short, one can get to the result one wants simply by changing how
one phrases the question and/or answer.
Holland v Hodgson [1872], Botham v TSB [1996], Hamp v Bygrave [1983], Leigh v
Taylor [1902], Berkely v Poulett [1977], Elitestone v Morris [1997], D’Eyncourt v
Gregory [1866] although there are many more you could use instead.
Common errors
A failure to attempt the question!
apply the two tests as discussed above making appropriate reference to relevant
case law and drawing out the themes I have raised in my general comments.
would apply the two tests with no real attempt to explain how they interrelate.
18

LLB
BSc DEGREES WITH LAW
Property law
Candidates will have THREE HOURS AND FIFTEEN MINUTES in which to

answer the questions.
Permitted materials
Students are permitted to bring into the examination room the following
specified document: one copy of Blackstone's Statutes on Property Law
(OUP).
UL16/0650
Page 1 of 6
1. Medicare plc, owns the registered freehold title to a central city site it
used as a hospital until 1998 when it re-located to the outskirts of the
city. Medicare decided to hold onto its central city site because it
anticipated that the land would increase in value once RailFare started
its planned expansion of the nearby railway station. Before it relocated,
Medicare secured all the buildings and the perimeter fence of the
central city site.
After many years of delay, the railway expansion is now going ahead
and Medicare is planning to sell the central city site to RailFare. In
preparation for the sale, Medicare’s surveyor, Seth, makes a site
inspection and he discovers the following:
(a) Abby is using one of the buildings as an advice centre for

homeless people. Abby explains to Seth that she formulated her
plan when she first noticed the disused building in 2005. Early
in 2006, she broke down the door and installed a generator to
supply power. She also re-decorated the building. Ahead of
opening in January 2007, she publicised the centre’s services
on the local radio. Abby told Seth that she had no idea who
owned the building but had they asked her she would have
moved out.
(b) Bob, a mechanic, is using the garage previously used by the

ambulances, to operate his vehicle repair business. Bob shows
Seth a copy of a contract for sale (dated 1998) together with a
receipt for the purchase price he paid to Medicare.
(c) The high hedge between Medicare’s site and the back garden of
a neighbouring public house, The Engine House, appears to be
in a different place from that shown on Seth’s plan of the central
city site. Consequently, a small piece of Medicare’s land is now
on the wrong side of the hedge. Cynthia, the owner of The
Engine House, tells him that in 1999 a previous owner of the
pub had planted the hedge to replace the remnants of a broken
down fence. She believes that the previous owner had taken his
lawyer’s advice on where the boundary lay.
Advise Medicare as to whether Abby, Bob and Cynthia can

make a successful claim to be registered as proprietors of the
respective parts of its central city site they occupy.
Indicate briefly how, if at all, your advice about Abby’s claim

would be different if her legal position was governed by (i)
unregistered land law rules; and (ii) the Land Registration Act
1925.
UL16/0650
Page 2 of 6
2. ‘Land law needs its formality rules just as much it needs exceptions
such as proprietary estoppel to mitigate the harshness with which the
rules might otherwise operate. What is problematic is striking the
appropriate balance between the operation of the rules and the
exceptions.’
Discuss.
3. In May 2015, Alfie moved to London to start work as a teacher at

Abbey Grove, a boarding school, of which his uncle, Fraser, is the
owner. Fraser agreed to allow Alfie to live in one of two empty houses
in Abbey Grove’s grounds for ‘four years or as long as you are teaching
at Abbey Grove’. Fraser hoped that if Alfie lived on the school premises
it would deter local children from committing acts of vandalism as well
as ensure that Alfie was never late for work in the morning.
A month later, Fraser recruited three more new teachers, Rosie,

Martin, and Isobel. They also needed somewhere to live. Fraser
offered them the other empty house in the grounds of Abbey Grove. All
three signed the same deed with Fraser. It was headed: ‘Licence
Agreement’, and provided that each of them would pay Fraser £150
per week as an ‘occupation fee’. The agreement was for two years
from the date the three moved in to the house. It also contained a
clause by which the occupiers were to let Fraser’s son, Leslie, stay
overnight whenever he came to visit his father. As the house only has
three bedrooms Rosie asked Fraser how this could possibly work.
Fraser mentioned that there was a sofa bed in the living room and
added that, as Leslie was working as a surfing instructor in Western
Australia, he was not expected to visit any time soon. The licence
agreement also provided for Fraser to retain a key to the house.
Advise Fraser, who wants to know if Alfie, Rosie, Martin and Isobel are
licensees or tenants of their respective houses.
UL16/0650
Page 3 of 6
4. In August 2015, Alex obtained a loan of £200,000 from Fred, a friend
who owns the local butcher’s shop. Alex was relieved to get the money
from Fred because his poor credit rating meant that five banks had
refused to lend him the money. Alex used the loan to buy a seaside
guesthouse, The Dunes, and in return he granted Fred a legal charge
over its registered title. Alex agreed to make monthly repayments
throughout the 10-year period of the mortgage, and also to the
following terms:
‘(a) Fred may vary the monthly interest from time to time
whenever he decides and for whatever reason.
(b) Alex must buy all his organic sausages from Fred for the
period of the mortgage and five years after its
redemption.’
Within months, Alex’s business started to struggle financially. Fred

therefore offered to pay Alex £10,000 in return for an option to buy the
car park at the rear of The Dunes. In December 2015, Alex agreed
and they executed a deed containing the option.
By August 2016, Alex had fallen into arrears with his monthly loan
repayments. In September, Fred wrote to him doubling the sum due for
the next monthly repayment and indicating that he was considering
taking possession of The Dunes, leasing it out to the local council for
six months for it to be used as temporary accommodation for homeless
people, and then selling it. Alex has just received an email from
Travelfare, a hotel chain, expressing interest in buying the hotel this
December.
Advise Alex:
(a) whether all or any of the terms of the mortgage and the option
agreement with Fred are enforceable; and
(b) on what, if any, legal grounds he may be able to resist Fred’s

plans to take possession of The Dunes, lease it to the council
before selling it with vacant possession next year.
5. What, if any, changes do you think should be made to the law on: (a)
the methods of severing a beneficial joint tenancy; and (b) the
settlement of disputes between co-owners?
UL16/0650
Page 4 of 6
6. Consider whether or not EACH of the following creates a valid
easement:
(a) Arthur’s grant to Bertram of a right to park a motorcycle in a

locked garage that Arthur owns.
(b) Colette’s claim to use the open drain located on a field that
separates her house from the main drain. Last year, Colette
leased the field to her neighbour, Doug.
(c) Ethel’s written agreement that Fran may erect a flag on the wall
of Ethel’s house. The flag advertises Fran’s tearoom which is in
a village several miles away.
(d) Gavin’s agreement with his neighbour, Henry, allowing Henry to

use the hot tub in Henry’s back yard.
(e) Ivor’s claim to use a track on land belonging to his neighbour,

Jon, as a short-cut to the local railway station. When Ivor
purchased the house from Jon last year nothing was said about
use of the track.
7. ‘The current legal position on the passing of the benefit and burden of
non-leasehold (also known as freehold) covenants is flawed,
unnecessarily complicated and should be reformed.’
How far do you agree with this statement? What, if any reforms, would
you advocate?
UL16/0650
Page 5 of 6
8. Roy is negotiating to sell his café, title to which is registered, to Anna.
Having checked the Land Register and visited the café several times,
Anna has discovered the following:
(a) Gail, a neighbour, tells Anna that she has an easement to

use the drains belonging to the café. She explains that
last year, a month before Roy renewed the lease of her
house, he gave her permission to use the café’s drains.
(b) Tracey, a local bistro owner, meets Anna in the street

outside the café and shows her a copy of an option
agreement by which Tracey may buy the café at any time
during the next five years.
(c) Hayley, Roy’s partner, paid half of the purchase price

when Roy acquired the café some years ago. Roy tells
Anna that Hayley is currently in New Zealand where she
is helping a friend start a catering business.
(d) Rita, the owner of the local newsagents shop, has four
years left to run on a lease to use a shed in the backyard
of the café in which she stores newspapers and
magazines.
(i) Advise Anna, who wants to know about the impact of all of the
matters she has discovered if she goes ahead and buys the
registered title of the café from Roy.
(ii) Indicate briefly how your advice would differ if the proposed
purchase of the café could be undertaken solely subject to the
principles of unregistered title.
END OF PAPER
UL16/0650
Page 6 of 6
LA3003 Property law – Zone A
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
1
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.
2

Question 1
Fiona owned the freehold title to business premises from which she operated
the offices of a small charity providing counselling for homeless people. The
premises are registered land. At the rear of the property there was an
outbuilding. The outbuilding was on the opposite side of the long yard hidden
behind a row of tall trees. The outbuilding was on two storeys. The yard was
only used occasionally, mainly by employees of the charity who wanted to
smoke during working hours. Otherwise it was neglected.
Fiona decided to use the outbuilding to provide emergency care for homeless
people during the Christmas period in 2003. Fiona opened a soup kitchen on
the ground floor of the outbuilding. On the upper storey, she provided
temporary accommodation for two homeless people. These arrangements
were only supposed to last for one month until 31st January 2004. The
homeless occupants were Alan and Colleen. Each of them was provided with
a new bed which was advertised by the manufacturer as being ‘a temporary
bed designed only to be used for one or two nights at a time’.
On 1st February 2004, Fiona gave permission for Alan to continue to occupy
the outbuilding rent-free until the local authority provided him with permanent
accommodation. Fiona expected that this would only take one or two months.
She assumed, mistakenly, that Colleen had left the property because Colleen
had been absent from the premises for two months. Colleen went travelling
on occasion for about two months at a time. Alan spent £100 on fixing an
electrical problem on the upper floor of the premises which he occupied and
spent small amounts of money throughout his occupancy maintaining the
property in a habitable condition.
On 1st March 2004, Ed broke the padlock on the door to the outbuilding and
began to occupy the empty rooms on the ground floor of the building. Fiona
met Ed by accident in the yard on 1st April 2007 and told him that he would
have to leave the premises. Ed refused to leave on the basis that he was
homeless. Fiona said that Ed could remain in the property rent-free for one
month if he painted the ground floor of the outbuilding. Ed agreed. He bought
some paint and brushes but never finished painting the property.
All three occupants have remained in occupation, having nowhere else to go.
Advise Fiona (a) as to the claims of Alan, Colleen and Ed to adverse
possession, and (b) how your advice would differ if the land was
unregistered.
General remarks
The general remarks made in the Introduction to this report apply to this question, in
particular the comments relating to problem questions. A good answer to a problem
question involves the identification of issues in a problem, a layout of the law which
is relevant to addressing those issues (not simply a discussion of all the law), an
application of that law to the facts of the problem, and the identification of a
conclusion. Very few candidates did this. Instead they often wrote unstructured,
undirected summaries of the case law that they could remember.
3
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 problem in a structured fashion
and, in the case of some candidates, a simple failure even to discuss the question.
have divided between the various factual issues in the problem and would then
have identified the key principles in the law relating to adverse possession before
applying them to the facts of the problem.
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 just
wrote as many notes as possible without addressing the question.
Student extract
The question concerns the area of adverse possession and whether Fiona
(F), the paper title owner will lose her title through adverse possession to
Allen (A), Colleen (C) and Ed (E) in the respect land they each occupy.
…According to Powell v McFarlain [sic] to prove adverse possession the
burden of prove [sic] is on the squatter in this case A. A must prove that he
during his stay at the premises he had factual possession and also had the
intent to possess.
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.
…Regarding the issue of intent to possess on the part of A, the fact that A
was given a licence to stay will amount to permission. Possession must be
adverse as established in BP Properties v Buckler.
Comments on extract
The opening paragraph is good in the sense that it identifies the general issue – of
adverse possession – which arises here; but it is less good in the sense that it
contains grammatical errors (e.g. ‘in the respect land they each occupy’). It is not
helpful to make such errors at the start; although it should be noted that this
question still scored a 2:1 despite that.
The second paragraph is good at setting out the legal tests. The third paragraph is
also clear on setting out the law. In both paragraphs there are numerous
grammatical errors, but the main point is clear.
The fourth paragraph is good because it turns around to applying the legal test to
the facts of the problem and asserts the argument that there cannot be adverse
possession here because there was permission. One of the strengths of this answer
is that there are lots of cases cited and that some of those cases (it would be better
if it had been all of them) are then applied to the facts of the problem.
4
Question 2
EITHER
a) ‘The Land Registration Act 2002 has failed to achieve its objectives.
Those objectives were necessary for the orderly administration of
land ownership in England and Wales but they are failing to
anticipate all of the problems which are connected with land
transactions.’
Discuss by reference to any aspect of the law except adverse
possession.
OR
b) ‘The principal strength of the system of unregistered land was the
balance it struck between flexibility and certainty. Unlike the land
registration system, the law on unregistered land enabled the courts
to reach a fair outcome in difficult cases. Nevertheless, it also
permitted the protection of the most significant rights.’
Discuss by reference to any aspect of the law except adverse
possession.
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 the law they could remember without any attempt to address the
question that they were asked to discuss.
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 the question that was asked (where
candidates preferred instead simply to write out all the law they could remember)
and a failure to identify a clear thesis as set out in section C in the Introduction.
(A) have identified the objectives of the Land Registration Act 2002. It would then
have considered the problems with land registration. The Pre-exam update for this
year identified case law relating to indemnities for errors on the Land Register – that
was one example of a shortcoming in the system. Cases like Midland Bank v Green
and Peffer v Rigg also identified situations in which issues of fairness intruded into
the land registration system.
(B) A good answer to this essay would have considered cases in relation to
unregistered land, which provided for fair outcomes to cases, as opposed to
applying rigid rules. Cases such as Kingsnorth Finance v Tizard demonstrated the
need for old concepts of notice and constructive trusts to achieve fair outcomes in
particular cases.
(there were many very poor answers) were (a) unstructured, (b) simply wrote out all
the law their authors could remember, and (c) did not even mention the issues
raised in the essay title.
5
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 is the opening of an essay. It fails to set out a thesis which addresses the
question that was asked. Instead it makes general, waffly reference to the names of
the different Acts. The second long sentence makes grammatical mistakes. It also
summarises the purpose of the legislation in an ungainly way. It makes no mention
of things like the plan to create e-conveyancing and how great the change was in
2002 from the 1925 legislation.
Question 3
Jack was the sole owner of the freehold title to a house on registered land.
After meeting on holiday, Jack and Diane began a relationship in August
2013. In March 2014, Jack asked Diane to move into his house with him. This
required Diane to sell her home for £125,000.
Diane was concerned about her rights after she moved into Jack’s house. In
April 2014, after an evening drinking wine at Diane’s birthday dinner, Jack
said to her: ‘You can think of this as being your home too. I want us to have a
meaningful relationship.’
Diane had a son, Billy, from a previous relationship. Billy was aged 5. He had
to move school as a result of this move.
Diane wanted to pay for the house to be redecorated so that it was more to
her taste. In March 2015, she asked Jack to give her permission to do this
because, as she put it: ‘That would make me feel more like this is my home
too’. Jack allowed her to refit the kitchen, the master bedroom and its en suite
bathroom at a total cost of £40,000. Diane paid for the entire £40,000. The
house had five bedrooms and eight other rooms.
In March 2016, Jack decided to construct a guest house on the land attached
to his house. Diane was a qualified architect. She designed the bungalow. It
was a single bedroom bungalow in the modernist style, with a kitchen and a
living-room looking over the large gardens. The bungalow was special in that
it required no heating and received all of its power from solar panels on the
roof. These features were the result of Diane’s special knowledge and skills
as an architect.
Diane supervised the construction of the bungalow. The construction work
cost £100,000, which was funded half by Jack and half by Diane. Diane
supervised every stage of the construction process and fitted the solar
panels herself. The construction work was completed four months ago. On
regular occasions during the construction work, Jack said to Diane: ‘You are
amazing. No one else could do what you do. This really is your guesthouse’.
Recently, Jack has begun a new romantic relationship and wants Diane and
Billy to leave the property.
Advise Diane on her rights under proprietary estoppel principles.
6
General remarks
particular the comments relating to problem questions. A good problem question
identifies issues in the problem and then deals with them one-at-a-time, applying
the appropriate law to them in sequence, and coming to clear conclusions on each
issue.
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 or
any structure. Many candidates failed to mention the issue of remedies at all.
have begun with a search for: (i) representation (or assurance); (ii) reliance on that
representation; and (iii) detriment by looking at the facts. A good answer would
have divided between the circumstances in 2014, 2015 and 2016 one after the
other so as to examine whether each year gave rise to an estoppel. In 2014, there
was no detriment and the representation was weak because it did not offer property
rights. In 2015, there might have been detriment because Diane paid for the work,
but there is need for analysis about whether or not Jack makes a meaningful
representation. In 2016, the work done by Diane was more substantial but it could
be argued that it was only slightly more than Mrs Rosset did in Lloyds Bank v
Rosset. A good answer would then have considered the potential remedies: here,
that might have led merely to a payment of money as under Jennings v Rice.
failed to go through the three stages of the estoppel and consider the facts of the
problem through that lens. Poor answers failed to consider the available remedies.
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
7
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.’
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
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.
8

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.
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.
9
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
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.
problem.
10

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
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
11
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
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
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
12
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…
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
‘The rights of mortgagees are too extensive. The law on mortgages is simply
oppressive of mortgagors and is insufficiently concerned with the needs of
the occupants of ordinary homes. Traditional mortgage law is simply not fit
for the 21st century.’
Discuss.
General remarks
question that they were asked to discuss.
13
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).
Common errors
The most common error was simply not addressing the question.
have addressed the key factors in the question: whether the rights of mortgagees
are ‘too extensive’, whether the law here is oppressive (as discussed in Palk), and
whether that law relates to the ‘needs’ of occupants. Almost no candidates did that,
and consequently their marks were poor.
failed to address the precise terms of the question. Poor answers failed to set out
the appropriate law and also failed to evaluate whether or not that law was
‘oppressive’, ‘excessive’ and so forth.
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…
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…
14
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 reference in the question to
‘oppressive’ use of rights in this context is a quote from Nicholls VC in Palk – a
good student might have noticed that reference. In this essay there is only one
mention of the concept of oppression. (4) Importantly, this essay also fails to
consider whether there is anything ‘oppressive’ – an extreme word – about the way
the law operates as present. It is essential to discuss the language in the question
and to answer the question you have been asked. The student should have
discussed whether or not the law was truly ‘oppressive’ (as some judges have said)
or merely part of what one might expect from the open market in housing in
England and Wales. (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 law on co-ownership of the home is of limited application in the modern
world. The concepts of joint tenancy and tenancy in common belong to
another age. However, the Trusts of Land and Appointment of Trustees Act
1996 did achieve a progressive recognition of the rights of beneficiaries
under trusts of land which empowers the court to protect the vulnerable in
their homes. Unfortunately, the case law has not yet shown sufficient concern
for the protection of occupants over other interests.’
Discuss.
General remarks
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.
Trusts of Land and Appointment of Trustees Act 1996, ss.2, 14 and 15; Jones v
Kernott; Re Citro; Re Holliday.
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.
15
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.
16
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
1
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.
2

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
write out all of 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.
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.
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.
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.
3
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.
4

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.
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
5
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.’
6
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
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.
problem.
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.
7
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
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
8
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.
problem.
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
9
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
10
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
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
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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Examiner’s report 2009

Examiner’s report 2009

2660003 Land law Zone A

A significant number of scripts contained no more than three full

Specific comments on questions

of Schedule 6 of the 2002 Act: what, if any, legal significance is there

Examiner’s report 2009

2660003 Land law Zone B

A significant number of scripts contained no more than three full

Specific comments on questions

This was quite a popular question, which attracted answers of uneven

typographical error in line 6, and invariably correctly recognised that it

This problem concerns issues about which of the competing property

Examiner’s report 2010

266 0003 Land law Zone A

Specific comments on questions

Advise Dylan on the basis of each of the following alternative assumptions:

examination of how, if at all, the benefit and the burden of the

Examiner’s report 2010

266 0003 Land law Zone B

Specific comments on questions

Advise Dylan on the basis of each of the following alternative assumptions:

some answers successfully displayed an up-to-date appreciation of the

assignment. The facts do not, as some thought, legitimately allow for

Examiners’ report 2011

Specific comments on questions

To what extent, if at all, do you agree with this proposition?

Poor answers to this question…

to Whiteacre. Rory is so annoyed at Jennifer’s behaviour that he padlocks his

‘The transferee hereby covenants on behalf of himself and his successors in

(ii) to keep the front garden in a neat and tidy condition;

In 2008 Sally and Kevin’s daughter, Tracey, was confined to a wheelchair

In 2009, distressed by Tracey’s disability, Kevin began to gamble heavily. To

Advise Sally on each of the following matters:

(a) her status as co-owner of Headroom.

Examiners’ report 2011

Specific comments on questions

‘The current law on freehold covenants is defective in a number of respects.

Poor answers to this question…

A good answer to this question would…

proposed exercise of the mortgagee’s power of sale by Rugland in favour of one of

In 2011 Danny decides he no longer wants to keep Seaview as a holiday

Examiners’ report 2012

LA3003 Land law – Zone A

Specific comments on questions

A good answer to this question would…

Poor answers to this question…

A good answer to this question would…

Examiners’ report 2012

LA3003 Land law – Zone B

Specific comments on questions

A good answer to this question would…

A good answer to this question would…

Discuss. (Do not consider adverse possession in your answer)

Examiners’ report 2013

LA3003 Land law – Zone A

• Avoid inventing new facts in problems – there is more than enough to

Specific comments on questions

ii) Alastair granted Dawn, by deed, the right to use a shortcut

iii) Alastair agreed, in writing, to give Roger the right to purchase

iv) Nick went to Tibet for an indefinite period.

(a) Advise Stephen, Dawn, Roger and Nick.

Poor answers to this question…