Examiners’ reports 2021

Examiners’ reports 2021

LA3003 Property law Level 6 – Zone A

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 a breadth of knowledge and clear ability to apply it to
analyse problem scenarios in a critical way and present well-structured answers
that reached reasoned conclusions. There was, however, room for many answers
to adopt a much more critical approach to primary and secondary legal sources
(such as journal articles) and integrate the ideas they contain into answers. 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 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

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easy for the examiners to follow what you say. Resort to note form answers should
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
To what extent do you think Lord Templeman’s speech in Street v Mountford
[1985] UKHL 4 and subsequent case law help to clarify the distinction
between a lease and a licence?
General remarks
Essentially, this question asks for an assessment of the extent to which Street and
subsequent case law has or has not clarified the distinction between a lease and a
licence. It relates to material in Chapter 6 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Street v Mountford; Somma v Hazlehurst; Bruton v London and Quadrant Housing
Trust; Antonaides v Villiers; AG Securities v Vaughan; Aslan v Murphy; Mikeover v
Brady; Stribling v Wickham; Clear Channel UK Ltd v Manchester City Council;
National Car Parks Ltd v Trinity Development Co (Banbury) Ltd; 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; ss.54(2) and 149(6) LPA 1925.
Common errors
A large number of answers either rewrote, or simply avoided, the question. This is a
serious error. Credit is given for how well you address the question set. Many
answers fell short in relating the material to some part of the question. Some
answers also relied far too much on recounting the facts in Street and other cases,
without analysis or discussion.
A good answer to this question would…
respond directly from the beginning and throughout the answer to exactly what the
question is asking. It might start by briefly introducing the direction the answer will
take. What Lord Templeman had to say about making the lease/licence distinction
offers an obvious starting point. Good answers will only refer to as much factual

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description of the case as is needed to serve the analysis/argument. What was

novel about Street’s approach to finding exclusive possession? What does it tell us
about for the role of intention, labels and substance? In addition, how should the
approach in Street apply where commercial parties have clearly stated what their
agreement creates (Clear Channel UK Ltd, per Jonathan Parker LJ)? Good
answers might give separate treatment to the clarity Street has, or has not, provided
where the property is in sole occupation (lodger/tenant and provision of services)
and multi-occupation. Is Lord Templeman’s approach less helpful where there is
more than one occupier? Good answers might explore what difficulties have been
found in cases after Street when it comes to making sense of the need for a joint
tenancy. Later rulings also allow analysis of other issues, including how the law
controls terms that are a sham or pretence (are they different ideas?). Is the status
of Street’s exceptional categories, where a lease does not exist even though
exclusion possession exists, clear? Apart from exclusive possession, good answers
would consider: certainty and rent. Although Street was not directly concerned with
defining maximum certainty of term, there have been important developments
since. They have been critical of the requirement and found ways of sidestepping it.
How far have they clarified it? What clarity is there after Street on when the law
needs rent to be payable for a lease to exist? And, finally, good answers would find
an extremely fruitful source for analysis and relevant argument in Bruton’s
controversial non-proprietary lease.
Poor answers to this question…
either provided lengthy narrative accounts that covered irrelevant aspects of the
topic (such as the proprietary/personal divide, formalities, forfeiture of leases and
different kinds of licences) or totally failed to tie potentially relevant legal content to
the question.
Student extract
There has been much discussion about the requirement of certainty of
duration as this rule has been the cause for leases to fail as we saw in Lace
and Prudential. If the leases in those cases were worded differently it would
have survived. This is clearly a preference of form over substance that is not
welcomed. In Berrisford v Mexfield, the Supreme Court had extensively
criticized this rule. The rule for certainty of term can be avoided i.e., with the
inclusion of ‘break clauses’. For example, a lease until the expiry of the war
may be void and rendered a license, but a lease for 3000 years terminable by
either party by notice when the war ends would be valid. In both situations
above, the term of lease in actual fact cannot be determined from the outset
yet the first lease will fail and the second lease will survive. This makes the
rule a bit of a joke. There is no real justification for this rule, and as we have
seen, Parliament had tried to save some of the leases with uncertain term
such as lease for life and perpetually renewable leases by converting them
into 90 years and 2000 years leases.
Berrisford v Mexfield also demonstrated how the court is able to avoid the
certainty of term rule. Here the Court recognized that even in Prudential the
House of Lord expressed hope that the Law Commission might look into
whether there is a continued need for the rule. However, despite the
opportunity to do away the rule, the Supreme Court chose not to do so but
have come up with a way to avoid the rule through the ‘double-step
conversion’ approach. It was held that today, if the uncertain term was
granted to an individual, it could be treated as a lease for life terminable in
the occurrence of the uncertain event according to an old common rule (Doe
v Browne (1807)); a lease for life will then be saved statutorily by s.149(6) of
LPA1925 which automatically convert lease for life into a lease for 90 years.

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 This had in some sense blurred the distinction between a license and lease
since leases with uncertain term was saved through various methods above.
Comments on extract
Overall: The extract is taken from an essay that received a low 2:1. This part deals
with the need for a lease to have a maximum duration that is ascertainable from the
outset.
Relevance: The extract looks at significant case law developments since Street;
and the concluding sentence goes some way to tie this section to the terms of the
question. Much of the preceding material, however, is descriptive and unrelated to
the question. Some of it seems to have a different agenda in mind. How might more
of the contents been better used to build arguments that specifically respond to
ideas in the question and its wording?
Substantive knowledge: The text shows a broadly accurate understanding of the
issues and the leading judicial developments relating to them. It touches some
interesting and valid points. There are omissions. What is the impact of contrary
intention on the approach in Berrisford? The answer alludes to the judicial criticism
of the rule. It would be enhanced by drawing on the different academic views to
construct relevant arguments.
Accuracy of information and use of authorities: A good range of modern cases
is selected but they are not always used in ways that maximise their potential in
addressing this question.
Clarity and presentation: Much of the text is quite clearly and appropriately
expressed; and overall the standard of presentation is good. However, there are
lapses on all three counts. In places, the clarity of expression would have been
improved by the use of shorter sentences and maintaining a suitably academic style
of writing throughout (‘bit of a joke’). Abbreviating the names of cases is acceptable
but using italic font for them is good practice.
Question 2
Elle, a dressmaker, owns the registered freehold title of Nuptials, a bridal
gown shop, where she also lives. In 2019 The Harmony Bank refused to lend
her the money she needed to renovate her shop. She therefore approached
one of her suppliers, Fancy Fabrics. It agreed to lend Elle the money,
repayable over 25 years, and secured by way of a legal mortgage over the
registered title to Nuptials.
The mortgage deed contained the following terms:
i. Elle must buy all her supplies of satin from Fancy Fabrics at the
prevailing market price;
ii. Fancy Fabrics has the right of first refusal if Elle ever decides to sell
Nuptials;
iii. Elle’s monthly interest rate will be variable at Fancy Fabrics’ absolute
discretion but it will never be less than 7 per cent above the standard
variable rate charged by The Harmony Bank.
Almost two months ago Elle’s business ran into financial difficulty. When she
failed to make one of her monthly loan repayments, Fancy Fabrics wrote to
notify Elle that it will need to protect its position by increasing the variable
interest rate by 1 per cent for each of the next six months. Fancy Fabrics’
letter also mentioned that it has evidence that Elle has been buying satin from
an overseas supplier. Elle is about to miss a second month’s loan repayment.
Fancy Fabrics is considering taking possession of Nuptials so that it can

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arrange a quick sale at auction. Elle has just had an email enquiry from
Tanya, owner of Forever Weddings, a chain of bridal wear shops, asking if
Elle might consider selling Nuptials. Elle is, therefore, keen to stay in
possession of Nuptials so that she can arrange her own sale because she
believes doing so will maximise her chances of realising the best sale price.
Advise Elle about:
a) the validity of the terms of the mortgage; and
b) the rival proposals over possession and sale.
General remarks
This problem question on mortgages relates to material introduced in Chapter 10 of
the module guide. Part (a) raises issues about the legal protection of the mortgagor
from mortgage terms that might make it more than a security interest. In (b) the
advice should relate to the two remedies mentioned in the rubric.
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, including unnecessarily writing about
irrelevant introductory issues such as the nature of mortgages and their creation.
The rubric to the question signals that the advice on validity may start immediately
without any preliminaries. Some students spent longer on giving advice on part (a)
(or on giving advice on sale rather than possession or vice versa in part (b)). Even
though there is no absolute requirement to split the material 50/50, in a two-part
question it is essential to respond fully to each part. With the advice on sale, there
was a tendency to spend more time in stating and (often inaccurately) applying the
procedural preconditions in ss.101 and 103 of the LPA 1925 at the expense of the
debatable substantive issues suggested by the facts.
A good answer to this question would…
advise E (in (a)) on the possible legal avenues she might have for challenging the
validity of the three terms the mortgage agreement and assess her chances of
success. This may draw on a range of traditional principles and case law on clogs
and fetters as well as those that test whether or not a term is unconscionable or
oppressive. What is the relevance of: the reason why E approached FF and the
(unknown) duration of the tie to buying supplies of satin from FF? Is the validity of
the clause more likely to be upheld because FF must pay the market price? There
is also scope for arguing that this clause operates as a restraint on trade. With
clause (ii) the advice should recognise it is the essence of a mortgage that it is
redeemable and the security should be released on repayment of the debt. But is
the majority approach in Jones v Morgan distinguishable where the term is a right of
first refusal rather than an option? With clause (iii) a good answer would recognise
that a variable interest rate is standard and intrinsically unobjectionable. What is the
yardstick to determine if 7 per cent above the HB’s standard variable rate is
unconscionable? Might FF’s decision to increase E’s interest rate over the six
months be in breach of Dyson LJ’s implied term in Paragon Finance v Nash?

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As far as (b) is concerned, FF’s power of sale has arisen under s.101 but why
exactly? As E is about to default on a second monthly repayment and has breached
clause (i) then it has also become exercisable under s.103. But can FF exercise
their right to organise a quick sale by auction, provided it is suitably advertised and
the exercise of its power of sale is in good faith? FF will still need to take care to
achieve the true market value (Cuckmere Finance). Selling with vacant possession
may be problematic if E succeeds in persuading the court to exercise its discretion
under s.36 of the AJA for her benefit. When is the statutory provision available, how
does it work and how can E best argue that the statutory discretion should be
exercised in her favour – particularly given Nuptials’ financial difficulties? Given E’s
reason for staying in possession of Nuptials, good advice would explore the
availability of the wide discretion in s.91 LPA 1925 to let her stay put in these
circumstances: Palk. But this will depend on how definite the prospect of T buying
the property is and what, if any, legal impediment may exist because of the
approach in Krausz.
Poor answers to this question…
identified very few of the issues and/or had a vague, superficial and inaccurate
knowledge of the basic legal principles and how to apply them to the facts.
Question 3
Imran is considering buying The Wreck, a piece of land located in the centre
of Weatherfield. The Wreck is a disused playground. Audrey is currently its
registered proprietor. She purchased it from Rita in 1985, who at that time
was also the registered freehold owner of the adjoining newsagents’ shop,
The Kabin. When Rita died in 2010 she left The Kabin in her will to Mavis.
When Mavis retired in 2017 she sold The Kabin to Norris.
Imran has discovered a deed dating from 1985 when Audrey acquired The
Wreck. It contained two covenants ‘for the benefit of the neighbouring
premises’.
The covenants are:
Clause (a) To keep The Wreck free from buildings and other
structures.
Clause (b) Not to let the line of shrubs planted between The
Wreck and The Kabin exceed two metres in height.
The deed contained a further provision, Clause (c). It stated that the
covenants in Clauses (a) and (b) ‘will not benefit any subsequent purchaser of
the benefited land unless the benefit is expressly assigned to them’.
Imran is planning on building a house on The Wreck. To protect its privacy,
he intends letting the shrubs between The Wreck and The Kabin grow to at
least three metres in height. Imran, therefore, wants to know, if he were to
acquire The Wreck, whether the covenants in Clauses (a) and (b) would be
binding on him.
Advise Imran.
General remarks
Chapter 9 of the module guide on Freehold Covenants is relevant to this relatively
straightforward problem question.
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

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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 only passing the benefit or the burden but not
both and also referring to law or equity but not both; (ii) stating legal principles
without giving reasoned advice on how they might apply to the facts; (iii) failing to
appreciate the effect of clause (c); (iv) misunderstanding the mutual benefit and
burden principle; and (v) overlooking the need for the burden of a restrictive
covenant to be protected under on the Land Register.
A good answer to this question would…
recognise that I wants advice about the enforceability of the covenants in the event
that he decides to buy The Wreck from A and proceeds with his plans for house
building and increasing the height of the shrubs. The advice should be framed
accordingly. It needs to establish if I would be subject to the burden of the two
covenants in the 1985 document and also if N, the current owner of The Kabin, has
the benefit of them. Advice on whether the burden will pass depends, first, on
identifying whether covenants (a) and (b) create negative or positive burdens – a
question of substance and not form. With covenant (b), Rhone is good news for I,
because the burden of this positive covenant would only be enforceable against A
as the original covenantor. Therefore, if I purchased The Wreck it would not be
enforceable against him, a successor in title to the covenantor’s land. The covenant
would not prevent him from increasing the height of the boundary fence. It may be
worth adding that I should avoid entering into an indemnity provision as part of the
purchase transaction. Is there any scope for the application of the principle in
Halsall v Brizell?
Might I be subject to the burden of covenant (a) if he buys The Wreck? This
depends on advising I about whether its benefit may have passed from R to N and if
he (I) would get the burden in equity from A. Good advice would look at each of the
requirements for the burden to run in equity (including registration) in turn and apply
them as far as the silent facts allow. If the burden passes to I if he decides to buy
The Wreck, he will want to know if N can enforce it. Theoretically, this opens a
variety of potential legal avenues for advice on the transfer of the benefit – both at
law and in equity. Good answers may seek to balance comprehensive coverage
with giving discriminating advice that emphasises the most productive possibilities
(and possibly briefly ruling others out). This is where the advice will do well to use
the words of the covenants quoted in the scenario. First, the generic reference in
the 1985 document to the land that is benefited by the covenants will be useful in
exploring statutory annexation. Second, the way clause (c) refers to the need for
assignment may rule out reliance on statutory annexation (Federated Homes;
Roake and Crest Nicholson). This may open the way to consider if there might
conceivably have been a successful equitable assignment of the benefit by R to N
via her testamentary gift to M (Newton Abbot Co-operative Society Ltd v Williamson
and Treadgold Ltd).
Poor answers to this question…
showed insufficient knowledge of the relevant principles, including wrongly
diagnosing which covenant was positive and which was restrictive and conflating or
confusing the roles of law and equity

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Question 4
‘It is important for the law to set tightly defined boundaries both as to what
amounts to an easement and also about when an easement can be impliedly
created. It is questionable how far the law fulfils these requirements.’
Discuss.
General remarks
Clearly, there are two aspects of substance indicated in the question – eligibility for
a right to qualify as an easement and the four modes by which they can be impliedly
created. Both aspects of the topic are 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; Law Commission Making land work:
easements, covenants and profits à prendre (Law Com No 327, 2011).
Common errors
A great many answers ignored the propositions in the quotation, preferring to make
a general survey of the two areas mentioned. Indeed, some candidates wrote more
generally about the law of easements, not relating their answers to the question set.
This meant that some candidates failed to maximise the full potential of relevant
knowledge. Others recast the question to consider the need for reform of the
implied methods of creation. Often, it seemed these answers were pre-prepared in
the hope that a different question would appear on the examination paper.
A good answer to this question would…
address the various claims the quotation makes. There is scope for differing
stances on all of them but good answers will engage with the question’s terms and
build arguments throughout. It would be worth starting by exploring if and why
tightly defined boundaries are important in this context. Here, the idea of certainty
and its link to marketability of land most obviously spring to mind. Good answers
may argue about whether these ideas can be said to exist in the two areas of the
law of easements to which the question refers. Here, there are many relevant
issues flowing from Re Ellenborough Park and the other ideas about the nature of
an easement that can be fruitfully explored and tested against the quotation. For
instance, good answers might choose to consider the shifting boundaries on
recognising recreational rights as easements. This opens a broader line of enquiry
into the extent to which the reasoning in Regency Villas has moved the law on from
Re Ellenborough Park’s four guidelines. Other matters that merit discussion include:
when and why rights may promote the business use of land; the bar on easements
in gross; and the ouster principle. The treatment of implied creation should look at
both reservation and grant and examine the details of each of the available
methods. Once again, what matters most is how this is done. Good answers will
argue about the absence of tight boundaries between the four methods, perhaps
focusing especially on the interpretation of s 62 and Wheeldon. The better answers
incorporated ideas drawn from primary and secondary sources – including the
views of the Law Commission and academic commentary.
Poor answers to this question…
contained too little by way of legal content, or strayed, sometimes completely, off
topic to write about such things as express creation, formalities and registration
requirements. Others wrote only about the characteristics, or only about implied
creation but not both.

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Question 5
Mike is the registered proprietor of Button Manor, a rundown historic country
house. In 2010 he invested his life savings to buy the property. As they were
insufficient to meet the full sale price, Mike’s father, Julian, contributed the
shortfall. Alison moved into Button Manor in 2013 when she married Mike.
In 2017 Julian’s wife died. He sold their bungalow and accepted Mike and
Alison’s invitation to come and live with them in Button Manor. In 2019 Julian
went off to New Zealand to visit his daughter, Kitty, after she gave birth to his
first grandchild, Larry. Julian decided to extend his stay so that he could
spend time watching Larry grow up.
By 2020 Mike was having great difficulty in meeting the running and repair
costs of Button Manor. He therefore reluctantly decided to put the property on
the market. Robin has been considering buying Button Manor to add to his
chain of boutique hotels. He visited the property several times. On the first
occasion he bumped into Pat, the leader of the local Boy Scout troop. Pat
explained that he was using a shortcut across the grounds of Button Manor to
reach his nearby house. On his second visit, Bunty, who lives in a
neighbouring house, presented him with a document containing a covenant
that appears to say Button Manor must only be used as a private residence.
Advise Robin about the legal position should he go ahead and purchase
Button Manor.
General remarks
The advice needs to focus on the potential enforceability of the various third-party
rights against R, the prospective purchaser/disponee of land with registered title.
The relevant principles and cases about determining priority under the LRA 2002 in
such are introduced in Chapter 3 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Sections 2 and 27(2) LPA 1925; Family Law Act 1996; ss.27, 29, 33 and 40 of the
LRA 2002 and paras 2 and 3 of Sch.3; 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.
Common errors
By far the most common mistake was spending time on a detailed exploration of the
nature of each claimant’s property rights when there is little, if anything, in the facts
of the problem to justify doing so. This inevitably curtailed the space for giving R full
advice on the real issues presented by the facts, namely, the priority of each
claimant’s rights if R goes ahead with the purchase of Button Manor.
A good answer to this question would…
recognise that the advice should be framed on the basis that R is a prospective
purchaser of Button Manor. As R would be taking a disposition of M’s legal estate
under s.27 LRA 2002, he would need to be advised of the potential impact of the
statutory rules of priority under s.29(1) LRA 2002 in respect of any property rights
interests J, A, P and B may be able to claim. Good answers should recognise how
the LRA 2002 provides for the same type of land law right to be differently protected
according to such things as its legal/equitable status and whether it was created
formally or not. The range of advice to R about enforceability can therefore be
increased through careful use of the facts and any ambiguities they contain.
Julian: J’s financial contribution to the purchase of BM is the basis of a claim to a
beneficial interest behind a trust of land. Has it been protected by a restriction? R
could then insist on M arranging for the appointment a second trustee to conduct
the sale and ensure that overreaching takes place. R should also be advised about

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the likelihood that J might be able to show that he can claim an overriding interest.
Good answers will explore how the detailed requirements laid down in Sch.3, para.2
of LRA 2002 might apply, using case law (particularly on actual occupation).
Alison: as A may not be able to claim a beneficial interest in BM (and therefore to
have an overriding interest) the advice may turn to consider her spousal right of
occupation, or home right, under the Family Law Act (FLA) 1996. How is it capable
of being protected, and would it affect R if he takes a disposition of Button Manor?
Pat: as P’s house is nearby his right to use the shortcut across BM may be an
easement and not just a licence, which would not be enforceable. The facts are
silent on how P’s shortcut was created. Good advice would therefore consider
priority under the LRA 2002 on the alternative assumptions that P’s easement was
created as: an expressly granted legal easement; an impliedly created legal
easement within the limits in Sch.3, para.3; or an equitable easement.
Bunty: it is not clear when the covenant was created but as a restrictive covenant R
will only need to discover if its burden has been protected via the register.
Poor answers to this question…
failed to give any advice on the priority of the various rights or confused the priority
principles relevant to land with registered title (Button Manor) with those that apply
where title to land is unregistered.
Question 6
‘As implied trusts are important in resolving disputes about ownership of
land, particularly the family home, it is unsatisfactory that there is
considerable uncertainty both about their creation and also the quantification
of the beneficial interests so created.’
Discuss.
General remarks
The subject matter referred to in the question is dealt with in Chapter 5 of the
module guide. It concerns claims by resulting and constructive trusts in the context
of disputes between cohabitants.
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.
Common errors
By far the most common error was to ignore the language and ideas in the
quotation and produce a detailed survey of the topic. Many answers seemed to be
pre-prepared essays and therefore received limited credit.
A good answer to this question would…
lay out a clear pathway through the various claims – explicit and implicit – in the
quotation. One obvious way is to use the distinction it makes between acquisition
and quantification (and the extent to which these are perhaps conflated) to help
structure the answer. Answers may justifiably refer to decisions before and after
Stack and the difference of views expressed by different members of the House of
Lords (notably Baroness Hale and Lord Neuberger). Good answers would inject a
critical dimension to the discussion of the current legal principles drawing on the
wording in the quotation, such as the linked contentions that there is uncertainty
that is unsatisfactory. Here, one possible tack is to explore whether the judicial
activity has led to a straining of property law principles in dealing with questions
about the acquisition of beneficial interests in the family home and whether this

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means that there is a need for legislative reform. Here and elsewhere, the
discussion can draw effectively on the wealth of scholarly sources and relevant
proposals of law reform bodies. The reference to the ‘importance’ of trusts may
allow some justified and carefully targeted reference to proprietary estoppel – but
the leeway should not be stretched.
There are many specific issues that may be included in a good answer. They
include the impact of Stack (along with Jones v Kernot, and Abbott) on the much-
criticised decision in Rosset – and its continuing status as starting point in ‘sole
ownership’ cases. (Should there be a single regime for joint and sole cases?) Other
matters that may be assessed are: the role of wider evidence than financial
contributions; the diminution of the role of resulting trusts and adoption of a more
sensitive and wide-ranging approach in cases involving the breakdown of a
relationship; the impact on the importance and difficulties in establishing common
intention; and rejection by the majority in the House of Lords in Stack of Oxley’s
approach of imputing rather than inferring an intention.
Poor answers to this question…
disregarded the quotation, showed very little knowledge/understanding of implied
trusts, or dwelt on irrelevancies such as express trusts or a comparison between
constructive trusts and proprietary estoppel.
Question 7
Charlotte bought the registered title to a small cottage in May 2004. The
house used to be the gatekeeper’s lodge for a country property, Branwell
House. As the cottage did not have its own garden, Charlotte agreed with her
neighbour, Anne, to make use of a neglected secret garden at the rear of
Branwell House. Anne is the registered proprietor of Branwell House.
Charlotte used the secret garden to grow vegetables. When Charlotte’s
licence of the secret garden expired in December 2011, Anne was not
prepared to renew it because she had plans to replace the garden with a
maze. Shortly afterwards Anne, who was not in the best of health, boarded up
Branwell House and moved to live in her cottage in Yorkshire. In Anne’s
absence, Charlotte continued to use the secret garden to grow vegetables. To
deter the birds, she installed a sonic device to scare them and erected a
Perspex roof to protect the soft fruit.
In March 2021 Anne sold Branwell House to Emily. A few weeks after she
moved in, Emily discovered that Charlotte was using the secret garden to
grow vegetables. Emily has written to Charlotte insisting she vacate the
garden immediately. A few days later, Charlotte received a letter from the
legal department of Wuthering Council. The letter instructed Charlotte to
remove the picket fence at the front of her cottage so that Wuthering Council
can make use of the land inside the fence to build a pavement. It claimed that
a previous owner of the cottage must have wrongly enclosed the strip of land,
which Wuthering Council’s plans show rightly belongs to it.
Advise Charlotte.
General remarks
Chapter 11 of the module guide is the introductory resource for this quite
straightforward question on adverse possession under the LRA 2002.
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; Hounslow v Minchinton; Boosey v Davies; IAM v Chowdrey; Zarb v
Parry; ss.15 and 17 LA 1980; ss.96 and 97 and Sch.6 and Sch.12, para.18 of the
LRA 2002.

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Common errors
A good number of answers did not take enough care to state and/or explicitly apply
the central principles that govern a successful claim to be in adverse possession of
the secret garden. It was also common for the advice to assert that the 10-year
period for C to be eligible to apply to become registered proprietor under the 2002
Act had been completed. Some answers wrongly saw the letters from Emily and
Wuthering Council in 2021 as raising the possibility that the adverse possessor
might have acknowledged the owner’s title. Advice sometimes included legal
irrelevance to C’s claim to the secret garden (human rights; and s.144 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012).A considerable number of
answers ignored the boundary exception.
A good answer to this question would…
recognise that C’s claim falls squarely within the LRA 2002 because C bought her
cottage in 2004 and title to the secret garden is registered. For C to be eligible to
apply to become the registered owner of title to the secret garden she needs to
prove factual possession, an intention to possess and that her possession is
adverse. Good advice would take care to apply the legal ideas and case law
(notably Pye; Moran and Powell v Macfarlane) to the facts. C’s claim can only have
started after A refused to renew the licence in December 2011. Is C’s continuing
gardening use allowed under the licence enough or too trivial to satisfy the
requirements of adverse possession? Does installing the sonic scarecrow and the
roof to protect the fruit assist C’s claim to possess the land with intention and
sufficient physical control? If so, how does C’s protectionist motivation for doing
these actions, and A’s plans to replace the secret garden with a maze, affect C’s
claim to being in adverse possession?
Good advice would move on to cover the procedure in Schedule 6. When did the
10-year period of adverse possession start and has it yet been completed? Once it
has then C can apply to become registered proprietor. E will be notified. If, as
seems certain, she objects that will effectively be the end of the matter, unless C
can mobilise one of the three conditions in Schedule 6, para.5 (for which the facts
seem to provide little if any prospect). By contrast, WC’s letter allows advice to be
given both about the elements of an adverse possession claim to the land enclosed
by the picket fence and also on whether C can rely on LRA 2002’s so-called
boundary exception.
Poor answers to this question…
contained inadequate knowledge of the principles and concepts of adverse
possession and/or lacked evidence of basic problem-solving skills. Some answers
wrongly identified the question as being about something other than adverse
possession (e.g. easements).
Question 8
Trystan, Bryn, Mari, and Jonas formed The Queens Singers, a group of
classical singers. They were spotted at a concert in Cambridge by a talent
scout for a record label. In 2016, after the group signed a record deal, they
decided to buy an old country house just outside Cambridge as an
investment and a place for them to live. They purchased King’s High, a house
with a recording studio in the basement. To raise the £480,000 purchase price
all four used £120,000 from the monies the record company paid them as an
advance on the release of their first album. The title to King’s High was
conveyed to all four friends ‘as beneficial joint tenants’.
Unfortunately, their debut album was a total flop. Bryn and Jonas found the
negative critical response so difficult to deal with they started to drink
heavily. In September 2018 Jonas died after he fell in the river after a drinking

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bout at the Student Prince public house. In his will Jonas left his entire estate
to his cousin, Placido. In November 2018 Bryn sold his share in King’s High
to Rhys, a friend and investment broker, in order to fund a residential
programme to treat his addiction. Rhys did not move into King’s High, which
he considered to be a financial investment.
In 2019 Trystan resigned from The Queen’s Singers so that he could go to
America and restart his recording career as a tenor soloist. He held a
conference telephone call with Rhys and Mari to tell them about his plans. He
added: ‘I no longer want to be a joint tenant in King’s High, and I need to
finance my career plans so the house will have to be sold’. Several days later
Trystan wrote a letter to both of them confirming the terms of his telephone
call. He posted the letter to Mari at King’s High and sent a copy of the same
letter by registered post to Rhys’s office. Before the letter arrived, Mari texted
Trystan with the news that she is expecting his baby. Shocked, Trystan
immediately replied telling her to ignore his letter as he would be staying to
look after her and the baby. Trystan’s American record company agreed that
he could use the recording studio at King’s High to make his first solo album.
A few days later, the registered letter Trystan sent to Rhys was returned
undelivered.
In 2020 Mari gave birth to a son, Llyr. He was born premature with a severe
congenital heart problem that required regular visits to the local hospital.
In 2021 Rhys immediately defaulted on the loan repayments for a mortgage of
his interest in King’s High that he granted to the Rough Bank to fund his
ailing investment business. He left the country.
Advise the Rough Bank about:
a) who is entitled to King’s House; and
b) the prospect it can succeed in obtaining a court order for its sale.
General remarks
Chapter 5 of the module guide covers severance and disputes between co-owners
of land about the sale of land held on a trust of land, which are the topics raised in
part (a) and (b) of this problem question.
Law cases, reports and other references the examiners would expect you to use
Goodman v Gallant; Pankhania v Chandegra; Gould v Kemp; Williams v Hensman;
Burgess v Rawnsley; Neilson-Jones v Fedden; Hawkesley v May; Harris v
Goddard; Kinch v Bullard; Re 88 Berkeley Road; Fantini v Scrutton; Bank of Ireland
v Bell; Mortgage Corporation v Shaire; First National Bank v Achampong; White v
White; Edwards v Lloyd's TSB Bank plc; ss.36 and 196(3) and (4) of the LPA 192;
and ss.14 and 15 of TLATA 1996.
Common errors
In part (a), many students gave overcomplicated or muddled advice on how the four
co-owners held the beneficial estate in King’s High when they acquired it in 2017.
Similarly, T’s statements during the conference call were wrongly seen as the basis
of mutual agreement or mutual course of conduct. Some answers to part (b) made
too little use of the case law relating to disputed sales under ss.14 and 15 of
TLATA.
A good answer to this question would…
quickly establish the legal and equitable co-ownership status of the parties in 2016,
before moving chronologically through the facts to identify how their status may
have changed and who owns the legal and beneficial title to KH in 2021. At each
juncture, it is good technique to spell out how, if at all, the events may have altered
the ownership pattern at law and equity. T, B, M and J start out as joint tenants of

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the legal estate in the house and, because they expressly agreed, they are also
beneficial joint tenants. Their equal contributions to the cost of acquisition are
therefore irrelevant. Their co-ownership of KH operates within the framework of a
statutory trust of land provided by TLATA 1996.
J’s death in September 2018 leaves only three joint tenants both at law and in
equity – survivorship operating because the gift in J’s will to P cannot sever the
beneficial joint tenancy. B’s sale to R in November clearly severs as an act on B’s
own share. In 2019 the first issue involves determining if and how T’s telephone call
might sever his interest. An oral notice does not fit within s.36 and there is little, if
any credible, authority for unilateral declarations being capable of severing within
the common law methods in Williams v Hensman. Is T’s letter that follows the call a
valid s.36 notice? Good advice would consider if the contents disclose an
immediate and binding intention (Harris v Goddard) and if and when it was
given/served on the others. With M this involves applying s.196(4) LPA 1925 before
considering if it can be revoked before the letter reached KH (discussed in Kinch). If
it can, should revocation by text be permissible? As R’s registered letter has been
returned undelivered, service has not been made under s.196(3) (Fantini v
Scrutton). But did R need to be served under s.36? If T’s informal ‘revocation’ is not
effective then all the co-owners are now tenants in common in equity. If it is
effective then the joint tenancy of the beneficial estate in King’s High continues
between T and M.
The advice for part (b) needs to consider the terms and application of ss.14 and 15
of TLATA 1996. In particular, it might explore the relevance of the purpose(s) of the
trust of the house, L’s welfare and the involvement of the secured creditor. As a
secured creditor, RL’s wish for a sale will figure prominently in the court’s weighing
of the factors identified in s.15. The advice may choose to bring in the approaches
in case such as Shaire and Bell. Good answers will take care to offer detailed
advice to RB on possible outcomes under s.15 by using the body of case law and
the facts creatively.
Poor answers to this question…
wrongly determined that when the four co-owners acquired KH in 2016 they did so
as beneficial tenants in common. This removed the basis for advice on the
severance issues in part (a). Some answers did not take the events chronologically,
or otherwise showed an inadequate understanding of how the principles of
severance work. There were some answers that thought sale depended upon
applying the statutory regime in the IA 1986 rather than that in TLATA.
Student extract 1: Part (a)
OTF, the title to King’s High was conveyed to all four friends ‘as beneficial
joint tenants’. According to s.1(6) LPA 1925 and s.34(2)(a) LPA 1925, T, B, M
and J own King’s High at law and in equity as joint tenants (JT). According to
the case of Goodman v Gallant, when the parties declare that they hold as
legal and beneficial JT, the courts will give effect to this intention regardless
of the contributions made by the parties.
Comments on extract 1
Overall: This brief paragraph sets up the main body of the advice in part (a) well.
The text states relevant legal ideas, indicates how they apply to the facts and
concludes the point. A compact style/technique is, to some extent a matter of taste,
and can be taken too far. With this issue it is justified because it is relatively
straightforward and non-contentious. What is important is that the advice on the
issues and facts is reasoned and supported by authority. How might the extract
have done that better? A neat introduction has the advantage of easing the

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pressure on limited space/time. This will allow for fuller advice on the moot points in
the question.
Relevance: The extract establishes the legal and beneficial co-ownership of KH
when the four first acquired it in 2016. It does not drift away by adding unnecessary
description of the differences between the two forms of co-ownership. The advice
might also have dealt with the imposition of a statutory trust of land governed by
TLATA, which will become relevant to the advice in part (b).
Accuracy of information and use of authorities: It is accurate and the citation of
authorities is fit for purpose.
Clarity and presentation: It is quite clear, appropriately expressed (is there a need
to say ‘OTF’?) and well-presented. There is no need to underline references to
statutes. Using italic font for the names of parties in a case is preferable.
Student extract 2: Part (b)
In accordance with s.14 of the Trusts of Land and Appointment of Trustees
Act (TOLATA) 1996, trustees of land or any person having an interest in the
property in question may apply for a court order. The court has a wide
discretion in making the order, for instance the court may grant an order for
sale, or monetary compensation. S.15 TOLATA 1996 lays out the various
considerations by the courts in making the order, including intentions of the
parties involved in the trust of land, welfare of minors and interest of
creditors.
In sales disputes involving a creditor, the court is more likely to order for a
sale of the property concerned in order for the creditor to realise the debts to
do justice, for example as in Bank of Ireland v Bell. However, in this question,
the fact that Llyr, the young son of T and M, is occupying King’s House as his
home is also likely to be taken into consideration by the courts, based on the
provisions in s.15 TOLATA 1996. Llyr’s health condition may also add to the
weight of the consideration for retaining property rights for T and M.
On balance, in order to do justice to all parties, it is thought that the courts
may award monetary compensation from T and M to Rough Bank only to
recover the original share of R, entitled to Rough Bank (i.e. one-third of the
beneficial interest in land); and allow T and M to retain the ownership of the
land for the reason of children welfare.
Comments on extract 2
Overall: This extract correctly identifies the central issue raised by part (b) of the
question. It concerns a dispute over whether KH, as co-owned land, should be sold.
The treatment tends to be brief and in places superficial. It achieved a low 2:2 mark.
Relevance: As far as it goes, the content is relevant. It correctly recognises the
court’s discretion and some of the guidelines in s.15 of TLATA 1996 on how it might
be exercised. There are gaps in the coverage. The advice would also benefit from
greater legal detail and depth and more in the way of reasoned application to the
facts.
Accuracy of information and use of authorities: Although the content is broadly
accurate, much of the law could be more carefully and fully stated. The number of
authorities used is lacking.
Clarity and presentation: Using italic font for the names of the parties in a case is
preferable to underlining them.

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