Unit 6 Prop

Question 1

Land Law - Unregistered Land

How must the owner of unregistered land prove their ownership?

What does the epitome of title start with? Requirements?

Answer 1

By producing documents to show that the owner has uninterrupted possession of the land for 15 yrs (epitome of title).

Starts with good root of title - a document which:
- shows ownership of the whole of the legal and equitable interest in the land;
- contains a recognisable description of the land;
- does not cast any doubt on the title; and
- is at least 15 yrs old.

Question 2

Land Law - Unregistered Land

Which estates/interests create a legal estate/interest in unregistered land?

Exception?

Answer 2

• capable of bring legal; and
• has been created using correct formalities.

Exception - pusine mortgages - protected by a Land Charge (but still a legal mortgage).

Question 3

Land Law - Unregistered Land

When are interests equitable?

How are they protected?

Answer 3

• the interest is not capable of being legal; or
• the interest is capable of being legal but has not been created using the correct formalities.

protected by either:
- a land charge; or
- the doctrine of notice.

Question 4

Land Law - Unregistered Land

Key classes of land charges?

Answer 4

C(iv) estate contract
D(ii) restrictive covenant
D(iii) equitable easement
(F) home right
C(i) puisne mortgage

Question 5

Land Law - Unregistered Land

How to register a land charge?

Who has the onus of registering the charge at the Land Charges Department?

Effect?

What if a buyer has knowledge of the charge but it is not registered?

Answer 5

Registered against the estate owner in the version of their name as it appears in the title deeds.

The person holding the equitable interest.

Deemed to constitute actual notice of the interest as from the date of registration. Therefore, any buyer will be bound (whether or not they know).

If buyer has knowledge but it is not registered, the charge will not be protected.

Question 6

Land Law - Unregistered Land

What does the doctrine of notice apply to?

When is a buyer not bound?

Who has the onus of proving they have no form of notice? What are the forms of notice?

Answer 6

• equitable interests pre-dating 1925; and
• beneficial interests under a trust (express or implied) whenever created

Will not be bound if they are equity’s darling - bona fide purchaser for value of a legal estate.interest without notice of the equitable interest.

Onus on the buyer to prove they have no form of notice:
- actual notice - know of the existence of the equitable interest (does not equate to rumour or gossip).
- constructive notice - when inspecting land, if buyer fails to make enquiries that a prudent buyer would.
- imputed notice - if the buyer’s agent has actual/constructive notice of equitable interest, will be imputed to buyer.

Question 7

Land Law - Unregistered Land

What is overreaching? For which interests is it effective?

Does it apply to registered and unregistered land?

Requirement for it to work?

Who are the trustees?

Effect?

Answer 7

A mechanism by which a buyer can take property free of the interests of any person with a beneficial interest under a trust. ONLY EFFECTIVE FOR BENEFICIAL INTERESTS UNDER A TRUST.

On completion the buyer must pay the purchase money (capital monies) to a minimum of 2 trustees.

Trustees are the people who hold the legal estate.

Buyer will take free of any beneficial interest under the trust.

Question 8

Land Law - Consolidation

What are the relevant formalities for beneficial/equitable interests:
- express trusts
- implied trusts?

What is the effect of overreaching?

Answer 8

• express trust - in writing and signed
• no formalities for the creation of an implied trust (resulting or constructive).

The buyer will take free of any beneficial interests under a trust.

Question 9

Land Law - Consolidation

How should a beneficiary under a trust property their interest in registered land?

Effect?

When will this be necessary?

What protection may a beneficiary under a trust have when overreaching hasn’t taken place and there is no restriction? Requirements?

Answer 9

By placing a restriction in the proprietorship register.

Prevents the registration of a later registrable disposition for value which is not in accordance with the terms of the restriction.

Only necessary where the property held as beneficial tenants in common. If held as beneficial joint tenants, there will be no restriction.

The beneficiary under a trust may have the protection of an overriding interest, provided that at the date of the disposition to the purchaser there is:
- obvious occupation on a reasonably careful inspection of the land;
- the buyer has actual knowledge of the interest; and
- the beneficiary under the trust has disclosed their interest on enquiry (when reasonably expected to do so).

Question 10

Land Law - Consolidation

When do home rights arise?

Do they create an interest in land? What is it?

How must they be protected in:
- registered land
- unregistered land?

Answer 10

Arise provided that:
- the parties are legally married or CPs; and
- the home is, has been or is intended to be the matrimonial home.

They do not create an interest in land - they are a statutory right of occupation of the matrimonial home for a non-owning spouse.

• Registered land - must be protected by entry of a notice in the charges register - cannot take effect as an overriding interest.
• Unregistered land - Class F land charge. If not protect, void against a buyer for money/money’s worth.

Question 11

Land Law - Consolidation

Unregistered land - Who is a legal easement binding against?

When is an equitable easement created post-1926 binding?

When is an equitable easement created pre-1926 binding?

Answer 11

Legal easement binding against the whole world.

Equitable easement created post-1926 - will only bind the buyer if it has been protected as a D(iii) land charge. If so protected, Land Charge deemed to be actual notice, therefore binding on buyer.

Equitable easement created pre-1926 - protected by the equitable doctrine of notice - buyer will be bound unless they are equity’s darling.

Question 12

Land Law - Consolidation

(a) Registered land - When are easements and profits created before 12 Oct 2003 binding?

(b) Express legal easements and profits expressly created after 12 Oct 2005 (those created by deed)?

(c) Legal easements and profits created by implication/prescription after 12 Oct 2003?

(d) Equitable easements and profits created after 12 Oct 2003?

Answer 12

(a) Retain their status as overriding interests.

(b) Registrable dispositions - must be registered.
- If not completed by registration, will take effect as equitable easement.

(c) (Do not require deed) Will take effect as overriding interests if, as at the date of disposition to the buyer:
- the purchase has actual knowledge of the easement/profit,
- the existence of the right would have been apparent on a reasonably careful inspection of the land over which the easement or profit is exercisable; or
- the easement or profit has been exercised at least once in the yr prior to disposition.

(d) Only bind a buyer if the person with the benefit of the interest has entered a notice on the charges register of the servient/burdened land. The notice must be registered prior to the registration of any disposition of a registered estate for valuable consideration.
In the absence of a notice, an easement cannot be upgraded to overriding status.

Question 13

Land Law - Consolidation

Unregistered land - what is the difference between pre-1926 and post-1926 restrictive covenants?

Answer 13

Pre-1926 remain subject to doctrine of notice - will bind all except for equity’s darling.

Post-1926 must be protected by a D(ii) land charge.

Question 14

Land Law - Consolidation

In registered land, what happens if a restrictive covenant is not protected?

How should it be protected? Is the consent of the registered proprietor required?

Requirement for it to bind a purchase?

Answer 14

The buyer takes free from it - not capable of being overriding.

Should be protected by registration of notice in charges register.
Can be done without the consent of the registered proprietor.

Must be entered before the registration of the disposition to the buyer.

Question 15

Land Law - Consolidation

Where a first legal mortgage is created over unregistered title, the lenders have what right?

How may a puisne mortgage be protected?

Answer 15

The right to take custody of the title deeds.

A legal mortgage not protected by the deposit of deeds (a puisne mortgage) must be protected by registration of a Class C(i) Land Charge.

Question 16

Land Law - Consolidation

How is a mortgage protected on registered land?

When will an interest created prior to the registration of the mortgage bind the lender?

How will a beneficial interest under a trust arising via contribution to the purchase price be protected against a mortgage?

Answer 16

Registrable disposition - will become legal only when entered in the charges register of the title affected.

Only if it is:
- a registered charge;
- the subject of a notice in the register; or
- an overriding interest in Sch 3 (have to be created prior to the date of completion of the mortgage).

Only by actual occupation. Such occupation would need to pre-date the creation (ie completion) of the mortgage in order to bind the lender (not usual).

Question 17

Land Law - Consolidation

Unregistered land - when is a legal lease binding?

Equitable lease created post-1926?

Equitable lease created pre-1926?

Answer 17

a) against the whole world (by deed or parol)

(b) will only bind the buyer if it has been protected as an estate contract C(iv) land charge

(c) protected by equitable doctrine of notice, unless equity’s darling.

Question 18

Land Law - Consolidation

Registered land - How are leases for more than 7 yrs protected? What happens if not completed by registration?

Legal leases for 7 yrs or less?

Equitable leases? May it take effect as an overriding interest?

Answer 18

Registrable disposition and has to be completed by registration.
If not completed by, will take effect only as an equitable lease.

Automatically protected as an overriding interest - applies to fixed term leases and periodic tenancies.

Protected by entry of a notice in the charges register.
If not protected by entry of a notice, may take effect as an overriding interest provided as the date of the disposition to the buyer there is:
- obvious actual occupation;
- the buyer has actual knowledge of the interest; or
- the tenant failed to disclose their interest on enquiry.

Question 19

Property Practice - Structure and Content of a Lease

What are the types of rent review?

Answer 19

• Fixed increase - at various set dates throughout the term, rent will increase to a set amount
• Index-linked - linked to an internal index - rationale is to allow rent to be altered in line with inflation
• Tenant’s receipts - linked to the tenant’s receipts from its use of the property
• Open market rent review - rent adjusted at regular intervals during the term by reference to the open market rental value of the premises

Question 20

Land Law - Consolidation

What are the mandatory requirements in the RICS Code?

Answer 20

1. lease negotiations must be approached in a constructive and collaborative manner
2. any party not represented by an RICS member or other property professional must be advised of the existence of the code and must be recommended to obtain professional advice
3. transaction terms must be recorded in writing, subject to a contract and must summarise specified details as aminimum.

Question 21

Property Practice - Procedural Steps for the Assignment of a Lease

If a landlord’s consent has not been obtained by or on completion, what can be done under the SCs and SCPCs to terminate/rescind the licence to assign?

Answer 21

• SC - either party may rescind the contract by notice if the consent has not been given 3 working days before the completion date or if, by that time, consent has been given subject to a condition to which the buyer reasonably objects.
• SCPC - if the landlord’s consent has not been obtained by completion, completion is postponed until 5 working days after the assignor notifies the buyer that consent has been given. The contract may not be rescinded until 6 months have passed since the original completion date. Either party may rescind by serving notice on the other.

Question 22

Property Practice - Procedural Steps for the Assignment of a Lease

Drafting - What will a typical license to assign contain?

Answer 22

• the landlord grants consent to the assignor to assign the lease to the assignee
• if the lease was granted on/after 1 jan 1996 (new lease), the assignor will typically give an AGA
• if the leases was granted before 1 jan 1996 (old lease), a direct covenant by the assignee tot he landlord to observe and perform the covenants in the lease for the remainder of the term.
• the assignor agrees to pay the landlord’s legal and professional costs

Question 23

Property Practice - Procedural Steps for the Assignment of a Lease

On assignment, if there are outstanding breaches of the lease, who will the landlord be able to enforce the breach against?

What should the assignee ask for to check for breaches?

Answer 23

Against the assignee.

The assignee should ask to see a copy of the receipt for the last payment of annual rent under the lease to check that the assignor is not in breach of the lease.

Question 24

Property Practice - Procedural Steps for the Assignment of a Lease

What document is required to transfer legal title? What will it be called in the case of assignmed?

How will this happen in unregistered land?

Answer 24

Deed required to transfer legal title to an estate in land. Deed of assignment.

Compulsory first registration, then TR1 can be used as normal.,

Question 25

Property Practice - Procedural Steps for the Assignment of a Lease What pre-completion searches should be made for registered and unregistered land on assignment?

Answer 25

Registered - official search of the registers of the leasehold title (OS1) to check for any new entires and to gain a priority period within which to register the transfer. Unregistered land - another land charges search against the name of the assignor to check no adverse entires have been made.

Question 26

Property Practice - Procedural Steps for the Assignment of a Lease Registered lease - When should an application for registration of the transfer to the assignee be made? Unregistered lease - when, on the date of the transfer to the assignee, the lease still has over 7 yrs of the term unexpired, when will it be registered at the Land Registry? If 7 yrs or less unexpired?

Answer 26

Within the priority period given by the pre-completion OS1 search. Within 2 months of the assignment or will be void. Incapable of registration with separate title.