Examiners' Report 2014: LA3003 Land Law - Zone A Specific Comments On Questions

Examiners’ report 2014
LA3003 Land law – Zone A
Specific comments on questions

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
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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.
Law cases, reports and other references the Examiners would expect you to
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.
A good answer to this question would…
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
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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.
Poor answers to this question…
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
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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?
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 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?
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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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.
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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?
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 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).
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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
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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
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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.
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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
ALTERNATIVE circumstances:
(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
reference to any trust was made in the conveyance;
(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

Examiners' Report 2014: LA3003 Land Law - Zone A Specific Comments On Questions

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Examiners' Report 2014: LA3003 Land Law - Zone A Specific Comments On Questions

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Examiners’ report 2014

LA3003 Land law – Zone A

Specific comments on questions

possible limits of Chaudhary v Yavuz). The subject guide includes a diagram to

Covenant (ii): probably succeeds on (2) and definitely (1).

prompting the court to refuse to find an easement? Is the advertisement

Poor answers to this question…

contrary) rather than adopting a resulting trust based upon their

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