ESSAY AND PROBLEM QUESTION PLANS
Terminology for example
Easements
Covenants
Creation of third-party interests AND Types of
interests – formalities
1. Identify the Interest
Easements, freehold covenant, Leases, Leasehold Covenants, Legal Mortgage, Family right
2. Decide whether it is Capable of being Legal
Easements Legal Restrictive Freehold Beneficial Lease Estate
mortgage covenant Covenant interest Contract
under trust
LEGAL LEGAL EQUITABLE EQUITABLE EQUITABLE LEGAL EQUITABLE
s 1(2) Law of s 1(2) Law Capable of Contract a
Property Act of Property If not includes If not includes If not legal sell a fee
1925. Act 1925. in 1 (2) in 1 (2) includes in 1 estate simple
(2) (S1(1) (b) absolute
(a) An (c) A charge s 1 (3) of the s 1 (3) of the LPA 1925) possession
easement, by way of Law of Law of can take
right, or legal Property Act Property Act effect only
privilege in mortgage 1925 1925 s 1 (3) of as an
or over land All other All other the Law of EQUITABL equitable
for an estates, estates, Property E interest if
interest interests, and interests, and Act 1925 If correct not include
equivalent EQUITABLE charges in or charges in or All other formalities in s1(1) or
to an estate over land take over land estates, have not (2) of LPA
, If correct effect as take effect as interests, been 1925
in fee simple formalities equitable equitable and charges formed
absolute in for creating interests. interests. in or over than it is
possession a legal land take equitable.
or a term of mortgage effect as
years have not equitable
absolute. been used. interests.
EQUITABLE
If correct
formalities
for creating
a legal
easements
have not
been used.
3. Has the Interest been Created by the Correct Formalities?
Legal estates and Estate contracts includes an Other equitable interests such
interests (Legal) ie, equitable lease or an easement as restrictive covenants (if not
leases, easements, (equitable) created by deed) and
mortgages. easements that do not satisfy s
1(2) Law of Property Act 1925,
for example, an easement for an
uncertain period. (Equitable)
Creation by deed - s 52 Creation in a contract - s 2 of the Creation by signed writing - s
of the Law of Property Law of Property (Miscellaneous 53(1)(a) of the Law of Property
Act 1925. To be a deed, Provisions) Act 1989. Act 1925.
a document must satisfy
s 1 of the Law of Section 53(1)(b) of the Law of
Property (Miscellaneous Property Act 1925 is a similar
Provisions) Act 1989. – provision that governs the
deed fails if not creation of express trust
witnessed interests and requires the trust
to be evidenced by signed
exceptions to this rule. writing.
Section 54(2) of the Law
of Property Act 1925 EXCEPTIONS
provides that a lease for
three years or less that Implied trusts, however, are an
satisfies certain exception to this rule and may
conditions will be a valid be created without any
, legal estate if created formality, according to s 53(2) of
only in writing or even the Law of Property Act 1925
just orally (a parol lease).
statutory right under the Family
Easements may also be Law Act 1996 does not require
created impliedly on a any formality and will arise if
sale of part or by long the conditions in s 30 have been
use (prescription) satisfied.
without any need for
formality. This sounds
very simple but there
are a number of complex
methods of creation that
you need to be familiar
with in order to identify
them correctly
4. Is the Interest Legal, Equitable or Statutory?
If capable of being legal:
and has been created by deed or satisfies one of the exceptions, it will be a valid legal
estate or interest. However, if the formalities are not met, equity may save the estate or
interest (for example a lease or easement) if it satisfies the formalities for an estate
contract.
If it is only capable of being equitable:
eg a trust interest or a restrictive covenant, it will only be a valid equitable interest if it
satisfies the appropriate rules.
If the formality rules are not complied with:
then there can be no valid interest in the land. The claimant would have a licence only.
5. Is the Interest Binding on a Buyer?
If unregistered –
refer to the flowchart
, If the land has registered title –
there are four categories into which the interest in question may fall.
Terminology for example
Easements
Covenants
Creation of third-party interests AND Types of
interests – formalities
1. Identify the Interest
Easements, freehold covenant, Leases, Leasehold Covenants, Legal Mortgage, Family right
2. Decide whether it is Capable of being Legal
Easements Legal Restrictive Freehold Beneficial Lease Estate
mortgage covenant Covenant interest Contract
under trust
LEGAL LEGAL EQUITABLE EQUITABLE EQUITABLE LEGAL EQUITABLE
s 1(2) Law of s 1(2) Law Capable of Contract a
Property Act of Property If not includes If not includes If not legal sell a fee
1925. Act 1925. in 1 (2) in 1 (2) includes in 1 estate simple
(2) (S1(1) (b) absolute
(a) An (c) A charge s 1 (3) of the s 1 (3) of the LPA 1925) possession
easement, by way of Law of Law of can take
right, or legal Property Act Property Act effect only
privilege in mortgage 1925 1925 s 1 (3) of as an
or over land All other All other the Law of EQUITABL equitable
for an estates, estates, Property E interest if
interest interests, and interests, and Act 1925 If correct not include
equivalent EQUITABLE charges in or charges in or All other formalities in s1(1) or
to an estate over land take over land estates, have not (2) of LPA
, If correct effect as take effect as interests, been 1925
in fee simple formalities equitable equitable and charges formed
absolute in for creating interests. interests. in or over than it is
possession a legal land take equitable.
or a term of mortgage effect as
years have not equitable
absolute. been used. interests.
EQUITABLE
If correct
formalities
for creating
a legal
easements
have not
been used.
3. Has the Interest been Created by the Correct Formalities?
Legal estates and Estate contracts includes an Other equitable interests such
interests (Legal) ie, equitable lease or an easement as restrictive covenants (if not
leases, easements, (equitable) created by deed) and
mortgages. easements that do not satisfy s
1(2) Law of Property Act 1925,
for example, an easement for an
uncertain period. (Equitable)
Creation by deed - s 52 Creation in a contract - s 2 of the Creation by signed writing - s
of the Law of Property Law of Property (Miscellaneous 53(1)(a) of the Law of Property
Act 1925. To be a deed, Provisions) Act 1989. Act 1925.
a document must satisfy
s 1 of the Law of Section 53(1)(b) of the Law of
Property (Miscellaneous Property Act 1925 is a similar
Provisions) Act 1989. – provision that governs the
deed fails if not creation of express trust
witnessed interests and requires the trust
to be evidenced by signed
exceptions to this rule. writing.
Section 54(2) of the Law
of Property Act 1925 EXCEPTIONS
provides that a lease for
three years or less that Implied trusts, however, are an
satisfies certain exception to this rule and may
conditions will be a valid be created without any
, legal estate if created formality, according to s 53(2) of
only in writing or even the Law of Property Act 1925
just orally (a parol lease).
statutory right under the Family
Easements may also be Law Act 1996 does not require
created impliedly on a any formality and will arise if
sale of part or by long the conditions in s 30 have been
use (prescription) satisfied.
without any need for
formality. This sounds
very simple but there
are a number of complex
methods of creation that
you need to be familiar
with in order to identify
them correctly
4. Is the Interest Legal, Equitable or Statutory?
If capable of being legal:
and has been created by deed or satisfies one of the exceptions, it will be a valid legal
estate or interest. However, if the formalities are not met, equity may save the estate or
interest (for example a lease or easement) if it satisfies the formalities for an estate
contract.
If it is only capable of being equitable:
eg a trust interest or a restrictive covenant, it will only be a valid equitable interest if it
satisfies the appropriate rules.
If the formality rules are not complied with:
then there can be no valid interest in the land. The claimant would have a licence only.
5. Is the Interest Binding on a Buyer?
If unregistered –
refer to the flowchart
, If the land has registered title –
there are four categories into which the interest in question may fall.
