LPC NOTES
[PROPERTY LAW AND PRACTICE]
(2019-2020)
, PROPERTY LAW AND PRACTICE
Underlying Land Law Principles – Rights and Interests
LEGAL ESTATES, LEGAL INTERESTS AND EQUITABLE INTERESTS
Legal estates
Since 1925, only two legal estates:
estate in fee simple absolute in possession (the freehold estate); and
a term of years absolute (the leasehold estate).
Legal interests
an easement for an interest equivalent to a fee simple absolute in possession or term of
years absolute; and
a charge by way of legal mortgage.
Equitable interests
All other estates, interests and charges in or over land (Law of Property Act (LPA) 1925, s 1).
FORMALITIES
Contracts for the sale of land
Must comply with the Law of Property (Miscellaneous Provisions) Act 1989, s 2.
Must be in writing which incorporates all terms expressly agreed by parties, and signed by or
on behalf of all the parties.
requirement for a written contract does not apply to contracts to grant a lease for a term
not exceeding three years taking effect in possession at the best rent without a fine and
contracts made at a public auction.
Options, equitable mortgages and side letters (variations of contract) issued in connection
with sale of land transactions do need to satisfy the requirements of s 2 of the 1989 Act.
Deeds
a deed is required to convey or create a legal estate or interest.
Exception - grant a lease for a term not exceeding 3 years taking effect in possession at the
best rent available without a fine.
Such a lease requires no formalities and can even be created orally.
However, any subsequent assignment of it can only be effected by deed.
If the requirements of a deed are not satisfied, the transaction may still operate in equity if
the conditions in the Law of Property (Miscellaneous Provisions) Act 1989, s 2 are satisfied.
PROTECTING THIRD-PARTY INTERESTS
registered land, interests need be protected by entry on register in order to bind, unless they are
overriding interests which will bind even if no entry appears in respect of them.
unregistered land, most legal interests bind automatically.
Other interests may be covered by Land Charges Act 1972 (LCA 1972), registration at the Central
Land Charges Registry will be necessary if they are to bind
Some interests are binding where a buyer has notice of them.
EASEMENTS
, An easement confers the right to one landowner to use the land of another in some way, or to
prevent it being used in a certain way.
There are certain conditions which must be satisfied before an easement can exist:
(a) there must be a dominant (benefit) and a servient (burden) piece of land;
(b) the right must benefit the dominant land;
(c) dominant and servient land must not be both owned and occupied by same person; and
(d) the right must be capable of being granted by deed and therefore must usually be:
(i) within the general nature of rights capable of being easements, and
(ii) sufficiently definite.
Creation of easements
There are three main ways in which easements may be created.
Express grant or reservation
To take effect as a legal easement, must be created by deed and granted for a period
that is equivalent to an estate in fee simple in possession or a term of years absolute.
unregistered title, legal easement is automatically binding, purchaser needs notice.
registered title, legal easement should register on charges register of servient tenement.
can arise in two main ways:
Where easement granted for period not equivalent to a fee simple or term of years.
Where the formalities for a deed have not been satisfied, but the easement is
created for value and satisfies the formalities for a contract for an interest in land.
Implied grant or reservation
Implied easements can be created only on a sale of part.
unregistered title, legal easement created by implied grant or reservation automatically
binding and needs no registration.
registered title, provided certain conditions are satisfied, such easements will take effect
as overriding interests.
Prescription
Legal easement may be presumed granted if show long and continuous user as of right.
Claim made under common law rules or under Prescription Act 1832 where the period
of uninterrupted user must be at least 20 years.
unregistered title, legal easement created by prescription is automatically binding and
needs no registration.
registered title, provided certain conditions are satisfied, such easements will take effect
as overriding interests.
Extinguishment of easements
Easements may be extinguished in three ways:
(a) Unity of ownership of the dominant and servient tenements.
(b) Express release by deed by the dominant owner.
(c) Implied release, ie, where the circumstances imply that the dominant owner has
abandoned the easement, eg, non-user for more than 20 years.
Easements and public rights of way
A public right of way (highway) is not an easement but a right exercisable by anyone, by
virtue of the general law, to cross another’s land.
Created at common law by dedication by the owner to the public, either expressly or by
implication, and by the public accepting that dedication as a highway.
, can also be created by statute, for example under the Highways Act 1980.
COVENANTS
Covenants affecting freehold land
A promise made in a deed,
Types of covenant
Positive covenants are characterised by requiring active steps to secure compliance.
restrictive covenants limit the use of the land in some way and do not require positive acts
to secure compliance.
The test is the substance of the covenant, not its wording.
Enforcement of covenants
Burden
Burden of positive covenant cannot run with land thus not enforceable directly against a
successor in title.
rule in Tulk v Moxhay (1848) the burden of a restrictive covenant can run with the land
in equity if:
(a) it touches and concerns the burdened land;
(b) it was entered into for the benefit of the benefited land and is capable of
benefiting that land;
(c) the original parties intended that the burden of the covenant should run with the
burdened land and not be a purely personal matter between them; and
(d) all successors in title to the land burdened buy with ‘notice’ of the covenant
(implied by LPA 1925, s 79).
Benefit
The benefit of both positive and restrictive covenants can run with the retained land at
common law and in equity.
Annexation is anyway implied by LPA 1925, s 78.
Indirect enforcement of covenants
2 ways in which burden of positive and negative covenants made indirectly enforceable:
Indemnity covenants
Person who originally gives a covenant remains liable in contract for breach of that
covenant forever, even after he has parted with the burdened land.
when he disposes of the property, he should obtain a covenant from the new owner
indemnifying him against any breach.
To avoid the need for a chain of indemnity covenants can limit liability under the
original covenants to the period of ownership only.
Who claims the benefit must submit to the burden
common law rule that a person who claims the benefit of a deed must also submit
to any associated burdens contained in it (Halsall v Brizell [1957] Ch 169).
the burden assumed must be linked to the benefit enjoyed, eg a payment related to
services that the payer actually uses (see Thamesmead v Allotey [1998] 3 EGLR 97).
TRUSTS OF LAND
‘trust of land’- any trust of property which consists of or includes land.
Trusts of land are governed by the Trusts of Land and Appointment of Trustees Act 1996.
[PROPERTY LAW AND PRACTICE]
(2019-2020)
, PROPERTY LAW AND PRACTICE
Underlying Land Law Principles – Rights and Interests
LEGAL ESTATES, LEGAL INTERESTS AND EQUITABLE INTERESTS
Legal estates
Since 1925, only two legal estates:
estate in fee simple absolute in possession (the freehold estate); and
a term of years absolute (the leasehold estate).
Legal interests
an easement for an interest equivalent to a fee simple absolute in possession or term of
years absolute; and
a charge by way of legal mortgage.
Equitable interests
All other estates, interests and charges in or over land (Law of Property Act (LPA) 1925, s 1).
FORMALITIES
Contracts for the sale of land
Must comply with the Law of Property (Miscellaneous Provisions) Act 1989, s 2.
Must be in writing which incorporates all terms expressly agreed by parties, and signed by or
on behalf of all the parties.
requirement for a written contract does not apply to contracts to grant a lease for a term
not exceeding three years taking effect in possession at the best rent without a fine and
contracts made at a public auction.
Options, equitable mortgages and side letters (variations of contract) issued in connection
with sale of land transactions do need to satisfy the requirements of s 2 of the 1989 Act.
Deeds
a deed is required to convey or create a legal estate or interest.
Exception - grant a lease for a term not exceeding 3 years taking effect in possession at the
best rent available without a fine.
Such a lease requires no formalities and can even be created orally.
However, any subsequent assignment of it can only be effected by deed.
If the requirements of a deed are not satisfied, the transaction may still operate in equity if
the conditions in the Law of Property (Miscellaneous Provisions) Act 1989, s 2 are satisfied.
PROTECTING THIRD-PARTY INTERESTS
registered land, interests need be protected by entry on register in order to bind, unless they are
overriding interests which will bind even if no entry appears in respect of them.
unregistered land, most legal interests bind automatically.
Other interests may be covered by Land Charges Act 1972 (LCA 1972), registration at the Central
Land Charges Registry will be necessary if they are to bind
Some interests are binding where a buyer has notice of them.
EASEMENTS
, An easement confers the right to one landowner to use the land of another in some way, or to
prevent it being used in a certain way.
There are certain conditions which must be satisfied before an easement can exist:
(a) there must be a dominant (benefit) and a servient (burden) piece of land;
(b) the right must benefit the dominant land;
(c) dominant and servient land must not be both owned and occupied by same person; and
(d) the right must be capable of being granted by deed and therefore must usually be:
(i) within the general nature of rights capable of being easements, and
(ii) sufficiently definite.
Creation of easements
There are three main ways in which easements may be created.
Express grant or reservation
To take effect as a legal easement, must be created by deed and granted for a period
that is equivalent to an estate in fee simple in possession or a term of years absolute.
unregistered title, legal easement is automatically binding, purchaser needs notice.
registered title, legal easement should register on charges register of servient tenement.
can arise in two main ways:
Where easement granted for period not equivalent to a fee simple or term of years.
Where the formalities for a deed have not been satisfied, but the easement is
created for value and satisfies the formalities for a contract for an interest in land.
Implied grant or reservation
Implied easements can be created only on a sale of part.
unregistered title, legal easement created by implied grant or reservation automatically
binding and needs no registration.
registered title, provided certain conditions are satisfied, such easements will take effect
as overriding interests.
Prescription
Legal easement may be presumed granted if show long and continuous user as of right.
Claim made under common law rules or under Prescription Act 1832 where the period
of uninterrupted user must be at least 20 years.
unregistered title, legal easement created by prescription is automatically binding and
needs no registration.
registered title, provided certain conditions are satisfied, such easements will take effect
as overriding interests.
Extinguishment of easements
Easements may be extinguished in three ways:
(a) Unity of ownership of the dominant and servient tenements.
(b) Express release by deed by the dominant owner.
(c) Implied release, ie, where the circumstances imply that the dominant owner has
abandoned the easement, eg, non-user for more than 20 years.
Easements and public rights of way
A public right of way (highway) is not an easement but a right exercisable by anyone, by
virtue of the general law, to cross another’s land.
Created at common law by dedication by the owner to the public, either expressly or by
implication, and by the public accepting that dedication as a highway.
, can also be created by statute, for example under the Highways Act 1980.
COVENANTS
Covenants affecting freehold land
A promise made in a deed,
Types of covenant
Positive covenants are characterised by requiring active steps to secure compliance.
restrictive covenants limit the use of the land in some way and do not require positive acts
to secure compliance.
The test is the substance of the covenant, not its wording.
Enforcement of covenants
Burden
Burden of positive covenant cannot run with land thus not enforceable directly against a
successor in title.
rule in Tulk v Moxhay (1848) the burden of a restrictive covenant can run with the land
in equity if:
(a) it touches and concerns the burdened land;
(b) it was entered into for the benefit of the benefited land and is capable of
benefiting that land;
(c) the original parties intended that the burden of the covenant should run with the
burdened land and not be a purely personal matter between them; and
(d) all successors in title to the land burdened buy with ‘notice’ of the covenant
(implied by LPA 1925, s 79).
Benefit
The benefit of both positive and restrictive covenants can run with the retained land at
common law and in equity.
Annexation is anyway implied by LPA 1925, s 78.
Indirect enforcement of covenants
2 ways in which burden of positive and negative covenants made indirectly enforceable:
Indemnity covenants
Person who originally gives a covenant remains liable in contract for breach of that
covenant forever, even after he has parted with the burdened land.
when he disposes of the property, he should obtain a covenant from the new owner
indemnifying him against any breach.
To avoid the need for a chain of indemnity covenants can limit liability under the
original covenants to the period of ownership only.
Who claims the benefit must submit to the burden
common law rule that a person who claims the benefit of a deed must also submit
to any associated burdens contained in it (Halsall v Brizell [1957] Ch 169).
the burden assumed must be linked to the benefit enjoyed, eg a payment related to
services that the payer actually uses (see Thamesmead v Allotey [1998] 3 EGLR 97).
TRUSTS OF LAND
‘trust of land’- any trust of property which consists of or includes land.
Trusts of land are governed by the Trusts of Land and Appointment of Trustees Act 1996.
