Examiners’ reports 2021

Examiners’ reports 2021

LA3003 Property law Level 5 – Zone B

Introduction
The examination paper followed the same format as in previous years. You should
familiarise yourselves with the Assessment Criteria to see the criteria that are
applied to assessed work. This report does not provide model answers. The
comments on the specific questions in the next section offer pointers and
suggestions for you to think about. They are not designed to be prescriptive, nor
should they be read as exhaustive of what answers might contain.
The examiners saw evidence of much preparatory work lost in translation because
of a failure to appreciate that the examination is not simply a test of knowledge and
recall. It looks for understanding, an ability to identify the issues and an ability either
to apply relevant legal ideas to the facts of a problem, or to engage with the terms
of an essay’s title. Too many answers seemed to be pre-prepared set pieces or a
series of disjointed legal snippets. Two things may help address these
shortcomings. The first is to make use of signposts throughout your answer. A way
to do this is to start each paragraph by introducing an issue and rounding off the
discussion of it before moving to introduce the next issue in a fresh paragraph.
Doing this has the added benefit of cutting out the need for a lengthy introduction at
the start of the answer and repetitive conclusions at the end. Second, before you
begin writing, it is important that you plan your answer so that it has a coherent and
sensible structure. The plan can also act as a checklist to help you keep the answer
on track. When planning your answer, it is a good idea to weigh up the range of
issues you need/want to include in your answer. The more valid and relevant points
you include in your answer the greater the potential credit it may attract.
The better answers showed breadth of knowledge, an ability to analyse problems
by reference to legal authority and to critique standard legal materials. In a good
number of cases, there was scope for better integration of legal material into the
body of the advice on the specific issues and facts raised in the scenario. Doing this
well will make sure the advice stays on track. It is important to avoid waffle and
vague generalisations. Neither attracts credit. Make sure you state the law
accurately and appropriately support what you say with ‘authority’. Equally, it is
important to remember that there are no marks for copying out chunks of statutes,
or for littering your answer with the names of cases. By contrast, it is impressive
technique to use relevant facts and judicial views from cases to support your advice
and arguments. In any event, it is crucial that you apply the law to the facts explicitly
and in a carefully reasoned way, avoiding mere assertions of law and facts.
Take care with your use of English, grammar and spelling. As the examination
coversheet indicates these are important. It is not simply about showing you take
care with presentation – impressive as that undoubtedly is. You need to be able to
convey the meaning of what you say clearly and precisely. It is also wise to make it
easy for the examiners to follow what you say. Resort to note form answers should

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be a matter of last resort and only for the final question. Make the notes as telling as
possible by including an indication of how the legal ideas apply to the facts of the
question.
Once again this year, there were a few (but still too many) instances of students
failing to follow the rubric, either by answering too few questions and/or exceeding
the word limit. These are both ways in which marks can be lost and lost
unnecessarily. Answering too few questions risks affecting the class of your degree
or can well make the difference between success and failure.
Please note:
a) references to the module guide are to the Property law module guide
2020/21;
b) any errors that were present in the student extracts in the following section
(‘Comments on extract’) have not been corrected;
c) references to names of statutes commonly encountered in the Property
law module (including the Land Registration Act 2002, the Law of Property
Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996)
are made in abbreviated form.

Comments on specific questions

Question 1
‘Disponees of land are more likely to take the land free of interests under the
Land Registration Act 2002 than they were under the previous registered land
law regime contained in the Land Registration Act 1925. Likewise, disponees
are far better protected in terms of priority than purchasers of land with
unregistered titles were.’
Discuss.
General remarks
This challenging question tests a comparative understanding of the different priority
principles under the LRA 1925, the current regime found in the 2002 Act, and also
those that applied where title to land is unregistered. These provisions are
introduced in Chapters 2 and 3 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Williams & Glyn’s Bank v Boland; Abbey National BS v Cann; City of London BS v
Flegg; Chhokar v Chhokar; Stockholm Finance Ltd v Garden Holdings Ltd;
Thompson v Foy; Link Lending v Bustard; Celsteel v Alton House Holdings; Midland
Bank v Green; Birmingham Midshires Mortgage Services Ltd v Sabherwal; Baker v
Craggs; Peffer v Rigg; Lyus v Prowsa Developments Ltd; Chaudhary v Yavuz; Hunt
v Luck; Re Nisbet and Potts Contract; Midland Bank Trust Co Ltd v Green; Caunce
v Caunce; Kingsnorth Finance Ltd v Tizard; Sections 2 and 27(2) LPA 1925; ss.3, 4
and 10 LCA 1972; FLA 1996; ss.27, 29, 33, and 40 of the LRA 2002 and paras 2
and 3 of Sch.3.
Common errors
Probably the most prevalent error was writing about the priority systems in the
abstract without referring to the specific terms of the quotation. It was also common
for answers to miss out one or more of the three sets of rules.

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 Examiners’ reports 2021

A good answer to this question would…

briefly set out how the essay is going to proceed in the introduction – there being
any number of legitimate approaches. This is important because of the question is
complex. It invites comparison between the operation of priority principles in
registered land before and after the changes in the 2002 Act and between those in
the 2002 Act and the parallel principles that resolved priority disputes in
unregistered title – land charges, overreaching and the doctrine of notice.
Establishing the structure and line of argument early on is also important because
the quotation contains assertions that allow for different viewpoints. These ask for a
discussion of whether the 2002 Act offers dispones/purchasers greater protection
not just than its predecessor in registered land but also was available in
unregistered land. It makes sense to take each sentence in turn. As far as
registered land is concerned good answers may demonstrate how the LRA 2002
has increased the reach of the register in terms of which property rights need to be
registered for validity or protection. Identifying the reconfiguration and reduced
scope of overriding interests (now ‘interests that override’) in Schedule 3 (when
compared with the wider remit of s.70(1)(g) LRA 1925) may also be a fruitful line for
the discussion to take. Exceptional answers might explore how far unprotected
third-party rights may, exceptionally, be enforceable in circumstances of equitable
fraud (Lyus and Chaudhary). This may also be compared with the approach to
enforceability of unprotected land charges in similar circumstances (Midland Bank v
Green). When it comes to the features of unregistered land law good answers
might, among other possibilities, engage with problems with title investigation and
discoverability of third-party rights; the vulnerabilities of a names-based land
charges scheme; the shifting and uncertain demands the doctrine of constructive
notice placed on purchasers. Here, the question allows consideration of whether the
LRA 2002 has displaced the ideas of notice. Good answers would draw
appropriately on secondary sources.
Poor answers to this question…
either described the features of one or other of registered or unregistered land
systems without reference to their priority rules or confused the basic concepts and
principles of registered and unregistered land.
Question 2
‘Not only is it difficult to know whether a joint tenancy or tenancy in common
has been created when land is acquired by co-owners, but it is also often
unclear whether severance has subsequently occurred. In fact, it would only
improve the legal position if it was possible for there to be only one form of
co-ownership.’
Discuss.
General remarks
The contentions in the quotation ask for a discussion of the following: what difficulty
there is in determining which of the two available forms of co-ownership exists
where land is held by co-owners; the methods by which a beneficial joint tenancy
may be severed; and the case for abolition of the joint tenancy in equity. All this is
introduced in Chapter 5 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Goodman v Gallant; Pankhania v Chandegra; Stack v Dowden; Lake v Gibson; Re
Fuller's Contract; Lake v Craddock; Malayan Credit Ltd v Jack Chia; Gould v Kemp;
Williams v Hensman; Burgess v Rawnsley; Neilson-Jones v Fedden; Hawkesley v
May; Re Draper's Conveyance; Harris v Goddard; Kinch v Bullard; Re 88 Berkeley
Road; Fantini v Scrutton; Quigley v Masterson; Davis v Smith; Gore and Snell v

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Carpenter; Hunter v Babbage; Carr v Isard; Re K; ss.1(6), 34, 36 and 196(3) and (4)
of the LPA 1925 and s.34 Trustee Act 1925.
Common errors
There were a number of common errors. They included writing generally about the
forms of co-ownership (including description and discussion of the four unities) and
severance. This ignores the terms of the question and, as far as co-ownership
goes, it looks at the wrong issue. This part of the quotation is really asking about
difficulties in establishing which form exists when co-owned land is acquired. In
addition, relatively few candidates addressed the thrust of the quotation’s final
sentence, which calls for arguments about whether the law would be improved by
having only one form of co-ownership in equity.
A good answer to this question would…
find a coherent structure to respond to each of the claims the quotation makes –
perhaps taking each of the three claims (absence of clarity about which form of
beneficial co-ownership applies, severance and reform) in turn. Throughout, good
answers should use relevant legal information to build arguments. These may agree
or disagree with the quotation or do a mixture of both. What matters is that the
essay engages with the question. There are many ways of doing this. Why does the
law mandate that a legal estate has to be held by co-owners as a joint tenancy?
Would the law be improved if that was changed? Typically, any uncertainty about
whether the beneficial estate is held as a joint tenancy or a tenancy in common
occurs where the parties have not expressly identified their preference as they
should have done as part of the purchase process. Is the approach embodied in the
traditional presumptions (as affected by Stack) difficult or unclear? Good answers
should also be able to find ample to say about whether there is clarity about when
severance may or may not have occurred. This might explore the accumulated
wealth of case law around ss.36 and 196 of the LPA and the methods laid down in
Williams v Hensman. A good answer might: assess the operation of unilateral
severance by written notice; the diverging judicial opinions in Burgess about the
ambit of mutual agreement and course of dealing; the inability to sever by will; and
the difficulties flowing from English law’s apparent preference to rely on severance
in cases of unlawful killing of another joint tenant. The final sentence in the question
opens the way for arguments about improving co-ownership by abolishing the joint
tenancy. This may focus the discussion on the importance of choice, the value of
survivorship and the attractiveness of rendering the complexities of severance
redundant. Here (and elsewhere) good answers can show depth of knowledge from
wider reading.
Poor answers to this question…
showed very little knowledge or understanding of the subject matter referred to in
the quotation, or sometimes dealt only with co-ownership or severance. Some
answers strayed into irrelevancy, writing about such things as the four unities,
constructive/resulting trusts or the statutory framework for trusts of land provided by
TLATA 1996.

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 Examiners’ reports 2021

Question 3
Alex, a surgeon, lived in No. 1. He also owned the adjoining house, No. 3,
which he rented out to holidaymakers. The two houses share a driveway.
After a pandemic affected tourism, Alex decided to sell No. 3 to Betty. As part
of the sale, they agreed ‘for the benefit of the neighbouring land’ that Betty
would:
i. only use No. 3 as a private residence;
ii. contribute half the annual cost of maintaining the shared driveway
between No. 1 and No. 3; and
iii. keep the shutters on the ground floor windows of No. 3 in good order.
In April 2021 Alex sold No. 1 to Candice. Three weeks later Betty sold No. 3 to
Denzil. After Denzil moved in, he immediately started to use No. 3 for his
interior designer business. The increase in traffic and visitors annoyed
Candice and also Ena, who lives in No. 5 on the opposite side of the street. In
May 2021 Candice noticed that one of the shutters on the living room window
of No. 3 was broken and hanging off the wall. When she spoke to Denzil about
it, he simply ignored her and walked away. He tore up Candice’s letter
requesting his contribution to the cost of repairing the potholes in the
driveway, which she claimed were largely caused by cars belonging to
visitors to his business.
Advise:
a) Candice, as to whether or not she can enforce the freehold covenants
against Denzil; and
b) Ena, if she can enforce covenant (i) against Denzil.
General remarks
Freehold covenants, the subject matter of this problem question, is introduced in
Chapter 9 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Tulk v Moxhay; Austerberry v Oldham Corporation; Rhone v Stephens; Haywood v
Brunswick PBS; P&A Swift Investments v Combined English Stores Group; Smith
and Snipes Hall Farm Ltd v River Douglas Catchment Board; Federated Homes v
Mill Lodge Properties; Roake v Chadha; Crest Nicholson v McAllister; Newton
Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd; ss.56, 78, 79 and
136 of the LPA 1925; and s.1 of the Contract (Rights of Third Parties) Act 1999.
Common errors
Common errors included: (i) advising on only passing the benefit or the burden in
equity but not both and confusing and conflating the role of law and equity; (ii)
stating legal principles without giving fully reasoned advice on how they apply to the
facts; (iii) misunderstanding how the mutual benefit and burden principle applies;
(iv) overlooking the need for the burden of a restrictive covenant to be protected
under on the Land Register; and (v) misdiagnosis of the issues in part (b).
A good answer to this question would…
give a systematic and clear structure to the advice so as not to repeat material on
passing the benefit and burden of the three covenants. It is important to apply all
the principles and authorities to the facts explicitly. Advice might start with the
common law’s unwillingness to let the burden of freehold covenants pass with the
land when it changes ownership: Rhone v Stephens. This will give context to
construing which of the three covenants are, in substance, restrictive, the burden of
which may pass in equity. As D’s use of No.3 as an interior design business is in
breach of restrictive covenant (i), good answers will apply each of the well-

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established preconditions on passing the burden (including protection under the
LRA) developed since Tulk v Moxhay to the facts in turn. The other two covenants,
requiring expenditure, are positive. There is nothing in the facts to suggest that
covenant (iii) is enforceable indirectly by means such as a chain of indemnity
clause. In which case, it is unenforceable against D even if C has received the
benefit of it. With covenant (ii), might D be bound by virtue of the requirements of
the mutual benefit principle as it has been developed since Halsall v Brizell?
When it comes to the transmission of the benefit of covenant (i), most of the advice
to C may be about annexation and, in particular, whether the requirements in
Federated Homes and Crest Nicholson for the operation of statutory annexation
under s.78 of the Law of Property Act 1925 are satisfied. Has the benefited land
been identified sufficiently in the words used in the covenant (‘for the benefit of the
neighbouring land’)? Good answers would do well to make the advice on how the
benefit may or may not have reached C as comprehensive as possible. This can be
done by briefly canvassing other potential methods, such as assignment and
building schemes, even if the paucity of facts may rule them out. With part (b), the
advice can be disposed of quite swiftly. It should focus on the prospect of E being
able to claim the benefit of covenant (i) by relying on s.56 of the LPA 1925 and/or
(depending on the date when the covenants were created) more readily under the
Contract (Rights of Third Parties) Act 1999.
Poor answers to this question…
showed insufficient or muddled knowledge of the relevant principles and concepts
and limited problem-solving skills. Sometimes the advice faltered because it
wrongly interpreted which of the covenants are positive and which are restrictive.
Question 4
‘The Land Registration Act 2002, in conjunction with more recent legal
developments, has fundamentally altered the way the law balances the
interests of a registered proprietor and those of an adverse possessor.’
How far do you agree this is, and should be, so?
General remarks
Adverse possession is introduced in Chapter 11 of the module guide.
Law cases, reports and other references the examiners would expect you to use
J A Pye (Oxford) Ltd v Graham; Buckinghamshire County Council v Moran; Powell
v McFarlane; IAM v Chowdrey; Zarb v Parry; Best v The Chief Land Registrar;
Dowse v Bradford Metropolitan District Council; J.A. Pye (Oxford) Ltd v The United
Kingdom; Leigh v Jack; s.144 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012; ss.15 and 17 LA 1980; ss.96 and 97 and Schedules 6 and 12,
para.18 of the LRA 2002. Chapter 17 of Updating the Land Registration Act 2002
(Law Com 380, 2018).
Common errors
There was little, if any, attempt to use legal information to build arguments to
address the quotation. Often answers merely described the LRA 2002’s process by
which an adverse possessor can apply to become registered proprietor of the land.
There was also a tendency to write extensively about the principles and case law
that define adverse possession without explaining how this was relevant. A
significant number of answers also failed to address that part of the rubric, which in
effect asks whether you agree with the altered approach of the law.
A good answer to this question would…
acknowledge that the shift in the balance referred to in the question is consistent
with the LRA 2002’s promotion of the reliability of the Land Register signalled by the

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Law Commission Report (Law Com 271) that paved the way for its enactment. This
is most obviously embodied in the LRA 2002’s abolition of the limitation period.
Previously the end of this period would have resulted in a true owner’s unregistered
title being barred (s.17 LA 1980) or their registered title being conveyed to the
squatter via a statutory trust. It may also be seen in the way that the 2002 Act uses
10 years of adverse possession as a precondition for gaining access to the LRA.
For the first time, the onus is squarely on the adverse possessor to apply to become
the new owner. If the registered proprietor makes a timely objection but then fails to
act to recover possession in the time allowed, why shouldn’t the register be
changed to mirror the position on the ground and favour the interests of the
squatter? Good answers would analyse the scope and role of the three exceptional
circumstances in Sch.6, para.5 (most particularly, the boundary exception and
associated case law) because they allow the squatter to gain title even in the face
of objections by the registered owner. Do the exceptions all relate to adverse
possession and what do any of them tell us about the shifting balance between the
parties? Admittedly, the changes, and therefore the shifting balance, only apply to
cases where 12 years of adverse possession of registered land was not completed
before the 2002 Act entered into force. The Act also has no effect on adverse
possession claims to land with unregistered title. But how significant are either of
these exemptions in 2021?
Given the terms of the question good answers will need to justify explicitly
discussing case law about how to prove adverse possession. Even if it is possible
to discern shifts in favour of one or other of the parties in how the courts have, at
different times, approached the various tests and their application (intention to
possess; future use and the implied licence) the definition of adverse possession is
essentially unchanged by the 2002 Act. Similarly, it is important to justify writing
about (now settled) legal arguments around the human rights compatibility of the
pre- and post-2002 processes. In any event, how relevant are either of these issues
to this question?
By contrast, it is important for good answers to analyse shifts in the justifications for
adverse possession and how far you agree with them. This may highlight its
diminishing value in resolving uncertainty to title which increasingly rests on
registration rather than possession. In this, and elsewhere, good answers may
show evidence of wider reading. The reference the question makes to other recent
legal developments most obviously suggests consideration of the interplay between
s.144 of LASPOA and the doctrine of adverse possession of residential properties
(Best v Chief Land Registrar).
Poor answers to this question…
wrote about adverse possession without reference to the changes introduced by the
LRA 2002; or focused entirely on how the 2002 Act made other changes to
registered land law.
Student extract
In the new law offering more protection against squatters, the LRA 2002 left
unaffected the elements required to be proved for AP, such as factual
possession and intention to possess, as well as discontinuance and
dispossession of land rules; failing to codify it into statute in the new law.
According to the LRA 2002, the squatter needed to demonstrate
uninterrupted AP that lasted at least ten years. In that regard, one
fundamental alteration that emanated from the LRA 2002 was that it
shortened the duration of time that an adverse possession was required to be
in possession of the squatted land. However, although the new law shortened

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 the time required, its regime made it harder for an AP claim to succeed
unless the disputed area was about boundaries.
On assumption that the squatter satisfied all the AP elements for registered
land, the procedure was revamped and the squatter would have to make an
application to the Land Registry for consideration to be registered with
possessory title to the property, as long as he or she was not defending
possession proceedings, which was a major change.
It would be for the Registrar to decide on the application’s disclosure of a
reasonable case. Upon receipt of the application, the registry would alert the
owner, registered chargees and others parties of interest about the
application. Issuing notices to the PTO was another major change brought
about as a result of the LRA 2002 was this in the answer? It was a
fundamental alteration that tipped the law in the favour of the interest of the
registered owner since landowners might be unaware that someone else was
attempting claim their land.
In order to prevent registration, PTO could object to applicant’s request to
register serve a counter notice, or both object and serve the counter notice,
which was a third change that the LRA 2002 brought about.
Should no objections be made after 65 days, then the applicant would be
entered as the new registered proprietor.
Under the new law, the passage of time alone would no longer result in a
registered owner losing his or her title. The concept of limitation was not
applicable nor was the title barred. Therefore, there was no need to take
action to stop the clock running against them, which served as an example of
the change that had occurred under the LRA 2002 to change the balance of
interests between adverse possessors and registered owners in favour of the
latter.
Unlike the old provisions, the adverse possessor would attain no legal rights
in the land unless the landowner and other related parties of interest failed to
raise an objection to the adverse possessor’s application within a three-
month period after being served notice about the claim for adverse
possession. The objection was a veto. It did not have to be justified. Should
those notified raise an objection, then the Registrar would decide on rejecting
the applicant’s claim, unless the applicant satisfied one of three exceptions
set out in LRA 2002 Schedule 6 Paragraph 5, which were narrow.
These three scenarios were such that it was unconscionable to remove the
applicant, the applicant could show another reason to be registered as
proprietor; or there was a reasonable mistake over boundaries. In all three,
the applicant could be registered immediately. However, the first two
situations were of limited effect (Baxter v Mannion). Both were useful, in
practice, but were not of satisfaction, according to Law Commission report.
Nonetheless, the Commission decided against recommending their
reformation. In contrast, disputes about boundaries were most likely to give
rise to claims.
Therefore, there was no reason for a registered proprietor to lose title
provided that he or she received notification about the application. To me, all
three should be scrapped exceptional circumstances that ruled in favour of a
squatter’s adverse possession claim over registered title through Schedule 6
Paragraph 5. It seemed to encourage theft. Theft was a crime and it should
be punished rather than rewarded. It involved one person taking something

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belonging to another without the other’s consent. It was an anomaly to the

absolute right to ownership.
In Pye, at the first instance, Justice Neuberger said, ‘It is hard to see what
principle of justice entitles the trespasser to acquire the land for nothing from
the owner simply because he has been permitted to remain there for 12
years.’ The enactment of the LRA 2002 made it much harder to be successful
in a claim of adverse possession of registered title, subject to three
exceptions, one alone of which seemed most likely. The reformation of the
principles of adverse possession in the LRA 2002 also made it harder for the
owners of registered land to lose their title since they were given notice about
the claim. With the new law in place, the procedure was more full and
complete and ensured the rights of the registered owner and maintained the
balance. In that regard, the Law Commission seemed to have achieved its
objective. Regardless, the use of economic and commercial reasons to
deprive a legitimate owner of the title to his or her land was wrong. How the
owner decided to make use of his or her own land was his or her own
prerogative regardless of him or her neglecting or abandoning his or her own
land.
Comments on extract
Overall: This extract forms a substantive part of an answer that scored a low 2:1
overall.
Relevance: Much of what is said about the LRA 2002’s new process for claiming
registered tile by adverse possessors is relevant and reflects a good understanding
of the topic. The extract covers a range of substantive points, many of which identify
how the law has changed. It also alludes to the balance between the parties having
been altered. How could this have been done more explicitly? Here, and elsewhere,
the extract provides a great deal of descriptive material without optimising its use as
evidence in support of tightly constructed arguments that make the assessments for
which the rubric asks. Could some of the legal detail about how the application
process works be reduced (or even omitted) without denting the impact of the
assessment? That would be one way of creating space for greater analysis and
argument on other points. More might be made about the ambit and function of the
boundary exception, including the case law. The extract seems to ignore the claim
in the quotation that changes other than those in the LRA have also affected the
balance. The extract is least successful in tackling head on the ‘should’ part of the
rubric. Does the final paragraph address this in coherent and convincing way? This
is challenging, which is why it attracts considerable credit if it is done well. For one
thing it gives an excellent opportunity to display wider reading and thinking about
the justifications for the changes in the 2002 Act.
Accuracy of information and use of authorities: Much of the content is accurate.
There is, however, capacity to increase the citation and use of authority in support
of what is said. It is not clear to which Law Commission Report the text is referring.
Clarity and presentation: Much of the text is clearly expressed (but why use
abbreviations: ‘AP’ and ‘PTO’?). The structure could be more tightly constructed
and coherent. It would help to signal clearly which part of the question is being
addressed when. Otherwise, there are no serious problems with presentation or the
referencing (as far as it goes). Using italic font for the names of parties in a case is
preferable to underlining them.

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Question 5
In 2017 Joe purchased the registered freehold title to a bungalow for
£360,000. He granted Ready Lending a charge by way of legal mortgage in
return for a loan of £350,000. The agreement set Clause (i) a variable monthly
interest rate, which would never be less than 10 per cent above the Bank of
Ireland base rate. Clause (ii) set the earliest date for redemption as being six
months before the end of the mortgage term. In 2020, after Joe lost his job, he
began to struggle to keep up with the mortgage interest payments and only
managed to do so by selling his two vintage cars.
Joe is now three months in arrears with the mortgage repayments and Ready
Lending is seeking orders for possession and sale of the property. Joe is
determined to resist the lender’s application. He believes that the interest rate
on the mortgage is unfair and would like to switch to a lower interest rate
mortgage with another lender, Friendly Finance. He is attending job
interviews and his grandfather has just written to tell him he is leaving him
£20,000 in his will. The house has recently been valued by Millie, a local
estate agent, as being worth £400,000. Joe is concerned that the agents for
Ready Lending have advertised the property for a quick sale at an auction of
repossessed properties with a guide price of £340,000.
Advise Joe.
General remarks
This problem question is concerned with a number of issues on the law of
mortgages. First, it calls for advice on how the law may allow the mortgagor, J, to
challenge two of the terms in the mortgage agreement. Second, J will want to know
about the prospects that he can successfully block RL’s plan to take possession
and sell the house at auction. Chapter 10 of the module guide provides an
introduction to each of these areas of law.
Law cases, reports and other references the examiners would expect you to use
Biggs v Hoddinott; Noakes v Rice; Kreglinger v New Patagonia Meat & Cold
Storage Co Ltd; Samuel v Jarrah Timber; Jones v Morgan; Cityland and Property
(Holdings Ltd) v Dabrah; Multiservice Bookbinding v Marden; Esso Petroleum Co
Ltd v Harper's Garage Esso; Paragon Finance v Nash; s.36 of the Administration of
Justice Act 1970; ss.101 and 103 LPA 1925; Cheltenham & Gloucester BS v
Norgan; Palk v Mortgage Service Funding; Cheltenham & Gloucester plc v Krausz;
Cuckmere Brick Co Ltd v Mutual Finance Ltd; Standard Chartered Bank Ltd v
Walker.
Common errors
There were a number of common errors. A number of answers wasted words on
irrelevant introductory issues such as the nature of mortgages and their creation.
The advice on validity can start immediately without any preliminaries. There were
also answers that gave greater prominence to advice on the validity of mortgage
terms than the two remedies, or which gave more advice on one of the two
remedies. With sale there was a tendency to spend more time stating and (often
inaccurately) applying the procedural preconditions in ss.101 and 103 of the LPA
1925 at the expense of advising fully on the substantive issues suggested by the
facts.
A good answer to this question would…
give advice on the application of common law rules and statutory provisions that
determine whether or not terms (i) and (ii) in J’s mortgage are valid. The key
question is whether the rate is unconscionable – imposed in a morally reprehensible
manner (Multiservice Bookbinding). By that standard, there is nothing inherently

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objectionable in a mortgage term providing a variable interest rate that is linked to

the base rate charged by an overseas bank. Would it be enough for J to show that
RL is charging a higher interest rate than is otherwise available in the market at that
time? Again, a good answer will advise J if clause (ii) amounts to an invalid
restriction on the mortgagor’s equity of redemption, making sense of the different
outcomes suggested by Knightsbridge Estates Trust Ltd v Byrne and Fairclough v
Swan Brewery.
As J’s property is residential, the advice can consider if/how he may benefit from
the court’s discretionary power in s.36 of the AJA (as amended) to defend any
proceedings RL brings to gain possession. How does it operate? What is a
reasonable period? Which factors influence the exercise of the discretion? How do
the judgments in Norgan (and other cases) help to advise J how the forensic nature
of the court’s enquiry in balancing the respective interests of the parties may work
for him? Here, good advice will make use of the relevant facts in the scenario. What
will help J to show what his prospects are of being able to pay the arrears and keep
on track in meeting future monthly repayments? Is it enough that he is going for job
interviews and has the prospect of inheriting under his grandfather’s will? What
might M’s valuation (if reliable) of J’s house mean to the risk to RL’s security?
The advice needs to probe whether R’s plan to sell the house in an auction of
repossessed properties might be in breach of its duties as mortgagee. Has the
mortgagee’s power of sale arisen under s.101 of the LPA 1925? Which facts are
provided that help determine if it has become exercisable under s.103? These are
non-contentious matters that can be disposed of briefly. Good answers will deal
fully with how RL’s decisions about timing and mode of sale might be open to
challenge but only if they are made in good faith. That apart, what will determine if
RL has taken sufficient care to ensure it achieves the true market value (Cuckmere
Brick Co v Mutual Finance)? J will want to know how this may apply if the price paid
were at the guide price and below M’s valuation.
Poor answers to this question…
typically identified very few of the issues or contained a great deal of inaccurate
legal knowledge and inadequate understanding of how it applied to the facts.
Question 6
Ben is the registered freehold owner of Cherry Pickers, a farm growing fruit
and vegetables. During the summertime Cherry Pickers opens for the public
to visit and pick fruit. In January 2016 Ben sells Jack the registered freehold
title to a plot of land adjacent to the main road, which Jack plans to use for
his catering van. As part of the sale transaction Jack expressly agrees that
Ben has the right to erect an advertising board for ‘Cherry Pickers’ just inside
the boundary of Jack’s land.
In March 2017 Ben grants a four-year lease of a second plot of land on Cherry
Pickers to Oliver, the owner of Peckish, a roadside café. Oliver wishes to use
the land to create a children’s playground for his customers. After granting
the lease, Ben continues driving his tractor along a track at the rear of the
plot of land to reach part of Cherry Pickers that is otherwise difficult to reach.
Ben also tells Oliver he can use a barn at Cherry Pickers to store surplus
tables and chairs for which he does not have space in the café. Oliver is so
delighted he invites Ben’s children to use Peckish’s playground at any time.
In March 2021 Ben renews Oliver’s lease for a further four years. Shortly
afterwards he falls out with Jack and Oliver. After a furious row, Jack
removes the sign for Cherry Pickers and replaces it with one advertising
Peckish. Oliver refuses to let Ben drive his tractor over the track and tells

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him that his children are no longer welcome to use the playground at
Peckish. Ben now wants Oliver to remove the café’s furniture from his barn.
Advise Ben.
General remarks
This problem question is concerned with the characteristics of easements and their
acquisition. All this is introduced in Chapter 8 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Re Ellenborough Park; Regency Villas v Diamond Resorts; Batchelor v Marlow;
Moncrieff v Jamieson; Hill v Tupper; Moody v Steggles; Phipps v Pears; Nickerson
v Barraclough; Wong v Beaumont; Stafford v Lee; Wheeldon v Burrows; Ward v
Kirkland; Wood v Waddington; s.62 LPA 1925.
Common errors
These included glossing over contentious aspects of the legal definition of
easements and mixing up grant and reservation.
A good answer to this question would…
advise B that he can insist on the reinstatement of the advertising board if it has
been created as an easement. First, it will need to satisfy the terms of the
guidelines for set down in Re Ellenborough Park and considered by the Supreme
Court in Regency Villas. Rather than run through all of them in detail, good answers
will give advice that emphasises the moot issue. Does it matter that the right
accommodates B’s business on the dominant land (Hill, and Moody)? If B is likely to
succeed then the advice should turn to if/how he acquired it. Did B expressly
reserve it (and as part of which transaction) or how might it have been formally
created as an equitable easement? The advice on whether B’s right to continue
driving his tractor on the track behind Peckish can be an easement does not need
to be lengthy. Most of the advice should consider when and if B might successfully
claim that the right has been impliedly reserved. Good answers will use the limited
facts to explore the possibility that it has been acquired by necessity or common
intention. B can insist on the removal of the café furniture from his barn unless O
has an easement of storage. Does O’s use of the barn for storing surplus furniture
accommodate the dominant land? If so, is the claim too extensive as a matter of law
and on the facts to exist as an easement (ouster)? Why might it matter if B is also
using the barn? On acquisition, the arrangement, which started informally after the
2017 lease, seems to have initially existed as a licence. Might O have been
impliedly granted it as an easement when his lease was renewed? Here the advice
may focus is on applying s.62 LPA 1925 but good answers would also find ways of
giving appropriate emphasis to the other three methods. The final claim – the
recreational right to use the sandpit – allows for a consideration of the reach of the
ruling and reasoning in Regency Villas. Even if B were to succeed in showing the
right qualifies as an easement, there is presumably little prospect that he can show
that he has acquired it as an easement.
Poor answers to this question…
contained one or more of the following: an inadequate appreciation of the issues;
insufficient knowledge of the topic; and poor problem-solving skills.

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 Examiners’ reports 2021

Question 7
Pauline is the registered proprietor of three properties in East London’s
Victoria Square: a two-bedroomed house; a launderette; and a public house,
The Prince Albert.
In September 2020 Tim and Una, two textile students at the East End College,
answered Pauline’s advertisement in their student newspaper that she had a
house available for rent. Before moving into the house in Victoria Square,
they signed separate ‘residency agreements’ with Pauline allowing them to
occupy the house for three years. The agreement provided that:
a) the ‘residents must jointly pay an annual residency fee of £4,200’;
b) Pauline reserved the right to require the residents to swap bedrooms
during the three years; and
c) Robbie, Pauline’s cleaner, would have a key to allow him to clean the
house once every week. Tim told Pauline that as he and Una are in a
relationship they would be sharing the same bedroom. Pauline said
she understood and that in any case they need not worry about her
relying on Clause (b) in the agreement. She also explained that she
had asked Robbie to email to let them know before he came to clean
the house each week. Una replied they would prefer to do the cleaning
themselves.
In March 2021 Pauline agreed in writing with Dot that she could lease the
launderette for ‘three years or until such time as Dot gives notice that she
wants to retire’. Dot moved into the launderette immediately and started
paying the £6,000 per annum rent in monthly instalments.
In December 2021 Pauline agreed that her stepson, Reggie, could live in the
self-contained flat above The Prince Albert, rent free, for two years. Reggie
had taken up a temporary position as trainee manager at the nearby
greyhound stadium. Pauline insisted that their agreement was put into a
deed. Reggie told Pauline he would arrange for his solicitor, Manny, ‘to sort
the paperwork out’. He moved into the flat but Manny never got around to
putting the agreement into a deed.
Advise Tim, Una, Dot and Reggie about the legal status of the agreements
they have with Pauline.
General remarks
This question relates to material in Chapter 6 of the module guide. The problem
focuses on the characteristics of leases, formalities for their creation and the
distinction between leases and occupational licences.
Law cases, reports and other references the examiners would expect you to use
Street v Mountford; Bruton v London and Quadrant Housing Trust; Antonaides v
Villiers; AG Securities v Vaughan; Somma v Hazlehurst: Aslan v Murphy; Mikeover
v Brady; Stribling v Wickham; Huwyler v Ruddy; Lace v Chantler; Ashburn Anstalt v
Arnold; Prudential Assurance Co Ltd v London Residuary Body; Berrisford v
Mexfield Housing Co-operative Ltd; Southward Housing Co-operative Ltd v Walker;
Jones v Padavatton; Nunn v Dalrymple; Walsh v Lonsdale; and s.149(6) LPA 1925.
Common errors
There was a tendency to give limited and superficial advice on the detailed facts
and issues about whether T and U enjoy exclusive possession. A considerable
number of answers failed to recognise and properly explore the legal significance of
the lack of a failure to execute a deed for R’s use of the Prince Albert. Broadly
speaking, the legal status of the use of each property raised distinct issues –

13
exclusive possession, certainty of duration and equitable leases. Yet, commonly,
some answers made far too much of those requirements in Street for which the
facts in the scenario were either clear cut or insufficient.
A good answer to this question would…
give advice from the start and take each of the three properties in turn. Do T and U
have a lease or a licence of P’s two-bedroomed house? With an agreed term of
three years there is no call to say more about the need for certainty of term. The
advice, as suggested by the detailed facts, should be on arguing if, as multi-
occupiers, T and U have exclusive possession. Good advice would give careful
attention to the terms of the agreement and relevant surrounding factors to
establish if T and U enjoy exclusive possession. It should use the wealth of case
law to address the issues. As substance is more significant than labelling, what
advice can be given about the use of wording such as ‘residency agreements’ and
‘residency fee’? Other points worth exploring include the legal significance of P’s
ability to ask T and U to swap bedrooms and her retention of a key for Robbie’s
access to clean the house at the specified times. Good advice would start by
considering the impact of these clauses on the assumptions that they are genuine.
But facts (such as P’s assurance that she would not rely on Clause (b)) prompt
advice on the application of the legal idea of sham/pretence. What would the status
of the agreement be if one of the clauses is found to be a sham? Answers should
also probe the significance, if any, of U saying she prefers to do her own cleaning
(although the facts are silent on what happens once they have moved into the
house). Finally, good advice should cover if T and U are joint tenants. How is
determining that affected by: T and U’s status as a couple (which P knew about);
their having signed separate copies of agreements with identical terms; and the
wording of Clause (a) on rent liability? Any advice on whether any lease they may
have is legal rather than equitable (and its protection under the LRA 2002) should
be brief.
With D’s written agreement the principal issue is certainty of duration. Here the
advice might start by exploring ambiguity about the maximum duration in the
agreement’s wording. Is the only way to interpret them that three years is the
maximum duration of D’s entitlement to the launderette? If not, good advice should
consider the application of Prudential/Mexfield, and also Southward on the place of
intention. If the arrangement is void as a lease then what is the legal status of D’s
occupation?
As M has not executed a deed, Reggie’s status may rest on the possibility that he
has an equitable lease (Walsh). What is the significance of the factual silence about
whether P and R’s agreement is or is not formal? If it isn’t then could the absence of
payment and the family connection be used to contend that R’s occupation is only
by way of a licence rather than a tenancy?
Poor answers to this question…
contained very limited or inaccurate legal information or failed to engage sufficiently
with the problem’s facts and issues.
Student extract
Dot has a monthly periodic tenancy since she is liable to pay the annum rent
in monthly instalments (Hammersmith & Fulham LBC v Monk).
The issue for Dot would be the lack of certainty of term. In Lace v Chantler,
the lease was expressed to last until the end of World War II and this was
held to be too uncertain.

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 Examiners’ reports 2021

The issue for Dot would be the lack of certainty of term. In Lace v Chantler,
the lease was expressed to last until the end of World War II and this was
held to be too uncertain. [sic]
In the present case, the lease for Dot is three years or until she wants to
retire which would also be classified as uncertain. However, Ashburn Anstalt
v Arnold held that certainty need not be predicted at the commencement of
the term of years, but could be sufficiently established with reference to the
circumstances pertaining to its termination, i.e. when Dot gives her notice.
The case was overruled in Prudential Assurance v London Residuary Body
where the House of Lords reasserted a strict interpretation of the certainty of
term rule. In the case of Berrisford v Mexfield Housing, the Supreme Court
showed no great enthusiasm for the certainty of term requirement and held
that such lease can be converted into a tenancy of 90 years under s.149(6)
LPA 1925.
Thus, Dot may wish to rely on Mexfield to argue for a lease. However,
Mexfield was doubted in Southward Housing Co-operative v Walker. The
judge distinguished Mexfield and suggested that it should only apply to
situations where the parties genuinely intended a lease for life. The
application of the rule in Southward where the landlord granted the tenants a
weekly tenancy would contradict the parties’ intentions. In Southward, the
court found that a tenancy that looked like a Mexfield tenancy was actually a
contractual licence which could be ended via termination upon non-payment
of rent or notice to quit. The terms allowing notice to quit show that it was not
the intention of the parties to grant a life tenancy.
Further in Gilpin v Legg, the judge questioned the rule itself. The case
involved beach hut owners arguing for a 90-year lease citing Mexfield as the
original landowners had promised they could stay indefinitely provided that
they paid and kept to the agreed terms of tenancies. The judge took the
opportunity to cast ‘respectful doubt’ on whether the authorities considered by
the Supreme Court in Mexfield supported the rule as ‘these authorities do
not, with respect, show that a term of years in the form of a periodic tenancy
expressed to be not determinable by one side was to be treated before 1926
as a term of years for life but determinable earlier. So s.149(6) of the 1925
Act could have no application to such as case’. However, this was made in
obiter and at first instance.
On the fact that Dot is able to give notice to quit shows that it was not the
intention of the parties to create a life tenancy. Hence, it is likely that
Southward should be applied and it would be a contractual licence between
Dot and Pauline.
Comments on extract
Overall: The extract is part of a wide-ranging answer that achieved a 2:2. It
concerns the current approach English law takes to the requirement that the
maximum duration of a lease must be ascertainable at the start.
Relevance: Much of the legal information is relevant to the issue. However, the
extract relies heavily on providing a narrative account of the cases. In places,
particularly the section on Gilpin, it is far from clear how this contributes to advice
on the specific issue. The advice tends to be somewhat limited and based on
assertion rather than reasoned application of the law to the facts. It would be far
better to make selective use of the key judicial developments mentioned as
evidence to support fully reasoned advice that specifically tests the validity of the
term in P and D’s agreement.

15
Accuracy of information and use of authorities: As a brief survey of the modern
case law, it is largely accurate. Do the conclusions at the beginning and end of the
extract agree? The citation and use of authorities is fit for purpose. Using italic font
for the names of parties in a case is preferable.
Clarity and presentation: The extract is quite clearly expressed and well-
presented. Paragraphs could be better used to give the essay greater coherence.
And why is the second paragraph repeated?
Question 8
In 2001 George met Martha when he was studying at university in Oxford.
Martha was working as a personal assistant to the managing director of a
pharmaceutical company. After graduating in 2002, George set up in business
as a freelance set designer for TV and theatrical productions. A year later,
George purchased a house in London for them to live in together, using his
savings for the deposit and obtaining the balance of the purchase price by
granting a mortgage to the Angry Bank. Martha gave up her rented
accommodation to move in with George. However, title to the house was
registered in George’s name only. At the time, Martha suggested that
registration should be in their joint names but George persuaded her not to
press the point. He told her, ‘Come on Martha, you don’t need to be
concerned about legal niceties. You know how you can trust me.’ George,
who was inundated with work, paid the mortgage instalments. Martha used a
small inheritance from an aunt to furnish and redecorate the house.
George and Martha decided not to marry. In 2006 Nick, their son, was born. In
2010 George started to experience difficulty in finding design work. Although
he was earning enough to continue meeting the mortgage repayments, they
decided it would make sense for Martha to return to work part time as a
Personal Assistant to her old boss. Since then Martha has paid all the
household bills and Nick’s school fees.
Earlier this year George and Martha split up. George insisted that he is going
to sell the house and is adamant that Martha has no entitlement in respect of
the family home.
Advise Martha.
General remarks
This question calls for advice on claiming a beneficial interest by way of either an
implied trust or the operation of proprietary estoppel. The law on these topics is
introduced in Chapters 5 and 7 of the module guide respectively.
Law cases, reports and other references the examiners would expect you to use
Dyer v Dyer; Pettitt v Pettitt; Gissing v Gissing; Burns v Burns; Lloyds Bank v
Rosset; Stack v Dowden; Jones v Kernott; Abbott v Abbott; Oxley v Hiscox; Marr v
Collie; Geary v Rankine; Grant v Edwards; Taylor Fashions Ltd v Liverpool Victoria
Trustees Ltd; Jennings v Rice; Gillett v Holt; Thorner v Major; Layton v Martin;
Pascoe v Turner.
Common errors
Writing in detail and at length about constructive trusts in the abstract rather than
giving prominence to using the relevant principles and cases to advise on the
specific issues and facts.
A good answer to this question would…
recognise that the advice should look at how M might be able to claim an equitable
interest in the house and its size. In the absence of an express/formal declaration,
M needs to establish that an implied trust has arisen in her favour or that she can

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 Examiners’ reports 2021

make a successful proprietary estoppel claim. Students would do well to separate

the advice on creation of the beneficial interest and its quantification. As M did not
make a direct financial contribution when the house was acquired in 2003, there is
no basis for her to claim an interest by resulting trust since Stack is not seen as
appropriate in disputes concerning the family home. Good advice will therefore
consider M’s prospects of making a claim that G holds the registered title on
constructive trust for them both. M will need to prove a common intention that she
was to have an interest and her detrimental reliance. Can she successfully argue
that G’s reassuring statements, made around the time of acquisition, are enough to
be regarded as express common intention (Rosset)? Good advice would move to
consider the circumstances in which common intention may be inferred. Here there
is scope to discuss uncertainty in the law on the sufficiency of indirect as opposed
to direct contributions and use the case law and facts to assist the advice. If M
succeeds in establishing the existence of a constructive trust, the court will look to
quantify her equitable interest according to what the parties agreed. As they did not
discuss the question, the court should try to ascertain the parties’ intentions from
the whole course of dealings. And here credit can be given for drawing on the
judicial views in Stack, Jones v Kernott and more recent cases to add nuance and
depth to the advice.
M could also be advised about the way she may successfully seek a remedy
through proprietary estoppel. Can she show that it would be unconscionable for G
to deny the assurance in his words in 2003 and that she had relied on them to her
detriment (Gillett v Holt)? Alternatively, would it suffice if M argued that G had stood
by passively while she acted to her detriment in the belief that she had an interest?
Then it is a question of whether her expenditure on furniture and redecoration,
along with paying the household expenses and school fees, will satisfy the law’s
need for detrimental reliance. Finally, good advice should highlight how and why M
may not get a beneficial interest or life interest in the house, the court may instead
exercise its discretion to award her a financial remedy – or possibly none at all.
Poor answers to this question…
showed very limited, and sometimes inaccurate, knowledge/understanding of the
relevant principles and issues. Some paid far too little attention to giving advice.

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