When the building plot is sold, which form is used?
TP1 —> part
TR1 —> whole
Restrictive covenant must be created by deed? If so, you include where? ;)
YES - TP1 is a deed anyways. So you include it inside
Where do you register the restrictive covs?
Charges Register for registered land
Land Charge for unregistered land
If created pre-1926, what applies?
Doctrine of Notice, so even if not registered, if the buyer had notice of such covenant, they will take with it.
Post-1926, what is the principle for non registered covenants?
Bona fide purchaser for value will get the property free of equitable interest even if he had notice of it.
Not to let a fence fall into disrepair? What type of covenant and how can you bind successors in title?
Positive Covenant;
Either Compulsory Renewed Covenants with a restriction in title: buyers require any successive buyers ti enter into a direct agreement with the benefiting land. You secure it with title restriction, preventing registration until the covenantee confirms the new covenant. OR
Estate rentcharge: Annual sum that must be paid by the buyers to the owner of the benefiting land. This must be created by a deed and registered in the charger register to be legal. Not very used.
Where do you write the easements?
AGAIN to TP1
both in the:
burdened land –> Charges Register
benefiting land –> Property Register
Staple sentence for sale of land where you want to incorporate covenants and easements
“Upon the sale of the building plot, a transfer of part (Form TP1) will be executed as a deed. Relevant provisions in the TP1 and corresponding entries in the registers of the two titles can mitigate the concerns.”
What does it mean that “the easement must be capable of forming the subject matter of the grant”
A right that is sufficiently definite. Cannot be too vague.
What is the principle called that an easement should not create exclusive possession?
Ouster principle
Where do you register the express easement in the registered land?
In the Charges Register AND the Property Register of the respective lands
What about express easement in unregistered land?
No need for registration, it is an overriding easement.
When an express easement is created, it may also include a covenant to repair or maintain the way which will set out the resp. of each party. If that is not included?
Neither the servient nor the dominant landowner is under the obligation to construct the way and neither party can claim any contribution from the other.
The dominant landowner can go and repair while bearing the whole cost.
What are the rights of mortgagees if mortgagor defaults?
1) Right of foreclosure
2) Right of possession
3) Power of sale
What is right of foreclosure?
It extinguishes the mortgage
What is right of possession? when is it exercisable?
At common law, mortgagee can exercise this at any time, regardless of default, but, in practice, if mortgagor adheres to the mortgage deed, they are protected.
Power of sale?
Legal power:
1) must exist –> this is the case for any registered chargee
2) has arisen –> on the redemption date (money is due)
3) became exercisable –> when a notice that requires repayment has been served and payment not been made for 3 months or interest due unpaid for 2 months.
(A written notice requiring payment was served, AND 3 months have passed without repayment) !
What are the interests overriding a registered disposition?
1) short leases (<6 months)
2) interests in person in actual occupation at the time of disposition
- only if when an inquiry was made they did not hide; or
- whose presence would be discoverable upon reasonable inspection
3) unregistered easements created by implication or prescription
4) profit a prendre
Where do you register the restrictive covenants?
Class D land charge in unregistered land
Charges register in registered land
What effect does registration of restrictive covenant will have to the world?
Registration of the restrictive covenant as a land charge means that everyone is deemed to have actual notice of it,
therefore,
it is not possible to rely on a lack of knowledge as a means of arguing that the right does not have effect.
If the property is subject to a mortgage, can you transfer equity without the consent of the charge holder?
NO unless;
there is no restriction in the title.
What does severance effect? Legal or Beneficial interest?
BENEFICIAL!
Legal estate can ONLY be held as joint tenants.
Therefore when you sever, you only sever the beneficial ownership.
How can you transfer legal title of a property, for instance two parties are joint tenants and one of them wants to transfer it to the other?
You execute a transfer deed (TR1)
When you pay off a mortgage, what do you need from the mortgagee to pay the correct amount for them to release their rights?>
Redemption statement
