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Land Lawcards Glossary

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Chapter 1

Fixture: Item which has become part of land through attachment to it. Section 62(1) LPA 1925 tells us that all fixtures are conveyed with the land, unless there is a contrary intention expressed in the conveyance.

Chattel: The name given in law to things that are personal property. Chattels can be divided into chattels real and chattels personal.

Real property: Freehold land and any buildings on it

Estate: Ownership of land (freehold or leasehold)

Fee simple absolute in possession: freehold estate which lasts for ever

Term of years absolute: Also known as a leasehold. One of the two legal estates in land found under S 1(1) LPA 1925. An estate in land for a period less than a freehold. A term of years absolute will last for a determinate period such as a week, a month, or a thousand years

Conveyancing: the legal and administrative process of transferring ownership of land or buildings on it from one owner to another

Land

"Land" includes land of any tenure and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings... and other corporeal hereditaments; also a manor, an advowson, and a rent and other corporeal hereditaments, and an easement, right, privilege, or benefit in, over or derived from land..."

S 205)1) (ix) LPA 1925, amended by Sched 4 to the TOLATA 1996.

Land includes-

buildings and other structures
land covered with water, and
mines and minerals, whether or not held with the surface"

(Section 132(1) LRA 2002

Hereditament: Real property which is capable of being inherited

Contract: Any legally binding agreement; contracts for any transaction relating to land must (with very limited exceptions) be in writing, contain all agreed terms, be signed by both parties (S.2 Law of Property (Miscellaneous Provisions) Act 1989)

Deed: Legal document complying with the formalities under S.1 Law of Property (Miscellaneous Provisions) Act 1989 (must state that it is a deed, be signed by the person making it and a witness to the signature)

Chapter 2

Legal Interest

aside from the two legal estates, there are 5 other rights which can be created at law (S 1 (2) LPA 1925. These are

Easement;
Rentcharge;
Charge by way of legal mortgage;
Any other similar charge created by instrument;
Rights of entry exercisable over a legal lease or rentcharge

Equitable Interest: All other estates, interests and charges in or over land take effect as equitable interests (S.1 (3) LPA 1925

Charge: any right over, or interest in, freehold or leasehold land which belongs to any person other than the owner of the land in question; normally used for a mortgage

Title deeds: deeds and other documents which prove ownership of freehold or leasehold property, consisting of all document transferring ownership successively from one owner to the next; used by the seller to prove his ownership where land does not have registered title

Equity's darling: A person who is a bona fide purchaser for value without notice of an equitable interest.

Doctrine of notice: Awareness of some event or state of affairs.

Constructive notice: The purchaser will be fixed with such notice if he could have discovered an interest by making appropriate enquiries, for example examination of deeds and inspection of land. Constructive notice applies only to residual interests in unregistered land. S. 199 LPA 1925. See Kingsnorth Trust Ltd v Tizard [1986] 2 ALL ER 54

Imputed Notice: The purchaser will be regarded as having notice of any matter which has come to the knowledge of the solicitor or agent had that person made such enquiries as should reasonably have been made. S. 199 (1) (ii) (b) LPA 1925.

Overreaching: The process whereby the rights of beneficiaries under a trust are swept off of the land and transferred to the capital monies. In order to overreach successfully a receipt for capital money must be obtained from at least two trustees of land or a trust corporation.

Chatpter 3

Filed plan: The official Land Registry plan by reference to which a piece of land with registered title is identified

Good leasehold title: One of the grades of leasehold title which may be granted to leasehold land by the Land Registry on registration

Land Registry: A government department (head office in London and district registries in other places in England and Wales) responsible for registering title to land when it become subject to first registration, maintaining the land registers, recording transactions and dealings with registered land, issuing results of public searches in the land registers

Overriding interest: An overriding interest only relates to land with registered title; it is a right which is enforceable against a property, and binding on a buyer, transferee or lender, even thought the right is not referred to on the register of the property at the Land Registry

Property register: One of the three registers (with the proprietorship and charges registers) maintained by the Land Registry for any piece of land with registered title this register describes the property and any rights attached to it, and whether it is freehold or leasehold

Proprietorship register: One of the three registers (with the property and charges registers) maintained by the Land Registry for any piece of land which registered title this register states the name of the current registered owner and the grade of title which the property has

Charges register: One of the three registers (the others are the property register and the proprietorship register) maintained by the Land Registry for any piece of land which has registered title; the charges register records any third party rights and interests over the piece of land

Registered proprietor: The person who is recorded at the Land Registry as the owner of any piece of land which has registered title

Registered title: Ownership of freehold or leasehold property which has been registered at the Land Registry (which then guarantees the ownership and contents of the register as accurate)

Chapter 4

Adverse possession: Acquiring ownership of land through possession, rather than transfer from the owner

Limitation: time period within which legal rights must be asserted through court proceedings under Limitation Act 1980.

Powell v McFarlane (1977)

Sets out the two requirements that the squatter must satisfy for adverse possession

Factual possession of the land for the limitation period; and
Animus possidendi - the intention to possess

Pye (JA) (Oxford) Ltd v Graham [2002]: The court held that the willingness of the squatter to pay the paper owner if asked would not defeat a claim for adverse possession.

Schedule 6 LRA 2002

Lays down the rules relating to adverse possession for registered land since 13 October 2003. In summary the rules are

The squatter will not acquire title to the land until he has registered his title
The squatter may apply to register his title following a period of 10 years adverse possession

Chapter 5

Trust: situation where land is held in the name of one person (trustee), on behalf of others (beneficiaries).

Strict settlement: Under Settled Land Act 1925 the strict settlement dealt with successive interests. The legal estate was held by the tenant for life who held for the beneficiaries in remainder.

Trust of Land: Since 1 January 1997, it has been possible to create only one type of trust of land. Section 1 of TOLATA 1996 provides that "trust of land" means... any trust which consists of or includes land...

Trustee: A person in whose name the property has been put, but who holds it for the benefit of another person (the beneficiary)

Co-ownership: where two or more people own land together - see "joint tenants" and "tenants in common"

Joint tenant: One of the two forms of ownership (for freehold or leasehold land) applicable where two or more people own a property together; (the survivor of joint tenants becomes the tenant of the whole).

Tenants-in-common: one of the two forms of ownership (for freehold or leasehold land) applicable where two or more people own a property together; tenants-in-common have separate shares in the property and there is no right of survivorship (unlike joint tenants).

Severance of joint tenancy: A joint tenancy can be severed in writing (S. 36(2) LPA 1925) or in equity (S 36(2) LPA 1925. See Williams v Hensman (1861)

Chapter 6

Resulting Trust: a resulting trust of land arises by way of presumption. The presumption is raised by contributions towards the purchase price of the land, which can include an contributions to a mortgage from the outset.

Constructive Trust

person may claim an interest in land if he can satisfy three requirements ( Lloyds Bank plc v Rosset (1991)), these are

A common intention that they were to benefit;
Detrimental reliance upon the common intention;
Unconscionability on the pat of the legal owner

Detrimental reliance: In respect of a constructive trust, evidence must be provided that a person has relied on a common agreement and changed his or her position in reliance on the agreement. It may include a financial contribution to the property, or home improvements.

Proprietary estoppel: A representation by one person to another that he/she has rights in property cannot later be denied where the representation has been acted upon. The person who relies on the representation must show that he has acted to his/her detriment.

Chapter 7

Landlord: The person who has granted a leasehold or who currently owns the freehold of the property out of which the leasehold was granted

Leasehold: Ownership by way of occupation of another's property for a fixed number of years (or on a periodic basis) usually in return for a rent; granted by a document called a "lease" (or "tenancy agreement" in the case of a period for under three years). See sectuib 205(1) (xxvii) LPA 1925.

Leaseholder: Person who owns a leasehold estate, either through direct grant to him by landlord or through transfer of lease to him; also known as "the tenant" or "the lessee"

Lessee: The leaseholder; alternative word for "tenant"

Lessor: Alternative word for landlord

Licence

A personal permission to enter or occupy another person's property. A licence is not an interest in the land. There are four categories of licence

Bare licence
Licence coupled with an interest
Contractual licence
Estoppel licence

Privity of contract: Prior to 1 January 1996 the original landlord and tenant would be in privity of contract and could sue each other on the contract. The original tenant could be liable under privity of contract throughout the original term of the lease, even after assignment. The original landlord could also be liable throughout the term of the lease, even after assignment of the reversion

Privity of estate: Assignees will be liable for breaches in covenants under privity of estate. Privity of estate will exist between the persons who are currently in the position of landlord and tenant.

Chapter 8

Mortgage: loan for which land is security a mortgage gives the lender rights over the land

Mortgage deed: the document containing the mortgage agreement and conditions

Mortgagee: one who lends money on the security of a mortgage or legal charge

Mortgagor: one who borrows money for which he pledges his land as a security

Equity of redemption

The right of the mortgagor to pay off the mortgage and get the property back in its original state. The most notable rights are

there should be no clogs or fetters on the equity of redemption
there should be no unreasonable postponement of the right to redeem
there should be no unfair collateral advantages

Right of possession: Legal mortgagees have a right to possession as soon as the mortgage deed is executed. Residential occupiers have statutory protection under the Administration of Justice Act 1970 s36. Unless the mortgagor is in default and the mortgagee wishes to obtain vacant possession pending sale of the property, possession is unlikely to be sought.

Power of sale the power of sale

the exercise of a mortgagee's power of sale is governed by the LPA 1925 ss101-107. Section 101 states that the power of sale must have arisen This means

the mortgage must have been made by deed; and
the mortgage money must have become due; and
there must have been no provision excluding sale in the mortgage agreement

Administration of Justice Act 1970 s36

Where the mortgagee under a mortgage of land which consists of or includes a dwelling house brings an action in which he claims possession of the mortgaged property, the court may exercise any of the powers set out below, if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage.

The court

ay adjourn proceedings, or
stay or suspend execution of the judgment or order, or
postpone the date for delivery of possession, for such period or periods as the court thinks reasonable.

Chapter 9

Easement: a right over another's land, such as a right of way or right of light

Dominant tenement: land which benefits from an easement

Servient tenement: land subject to easement

Profit a prendre: These are rights to take part of the soil, plants, minerals, or wild animals from the servient tenement. Anything which may be owned may be granted as a profit provided that it is found on the servient land or in its waters. Profits can exist either appurtenant to land or in gross. Some examples of profits are; profits of turbary (rights to dig peat), profits of piscary (rights to fish), and profits of estovers (rights to take wood).

Prescription

Prescription gives effect to the claims of a user over long periods of time. There are three requirements which need to be satisfied before a prescriptive right can be acquired

the user must be the fee simple owner
the user must be continuous
the user must be as of right

common law: At common law the use had to date back to time immemorial which was taken to be 1189. The rules were later relaxed - if a user could show use as of right for 20 years, he could claim an easement.

Lost modern grant: assumes that, provided that a user can show 20 years enjoyment as of right, and that the grantor of the "lost" grant was competent, the right can become an easement. It does not matter that there was never a grant in existence.

The Prescription Act 1832: provides that an easement enjoyed as of right cannot be defeated by evidence that use began after 1189 provided that it has been enjoyed for 20 years. After 40 years the right becomes indefeasible unless the original use was as a result of consent or agreement.

Re Ellenborough Park

Lays down the essential characteristics of an easement. The characteristics are

there must be a dominant and a servient tenement
the easement must accommodate the dominant tenement
the dominant and servient tenements must be owned (or at least occupied) by different persons
the easement must be capable of forming-the subject matter of a grant

Wheeldon v Burrows: Quasi-easements may become true easements under the rule in Wheeldon v. Burrows. The rule is applied when a landowner sells part of his land and he used to exercise a quasi-easement (usually either a right of way or a right of light) over the land retained in favour of the land sold. Provided that there was unity of seisin immediately prior to the grant, the user was "continuous and apparent, the quasi-easement was in use "at the time of the grant and was one of "reasonable necessity ",the land retained becomes the servient tenement and the land sold becomes the dominant tenement.

Chapter 10

Covenant: legally enforceable promise in a deed to carry out some specified task (positive covenant) or refrain from some specified action (restrictive covenant)

Negative covenant: A promise to refrain from a specified action. It does not matter how the covenant is worded. The test is whether the covenant involves the covenantor in expenditure; if it involves expenditure, the covenant is positive. For example not to allow a road to fall into disrepair is expressed in negative terms but it is a positive covenant because it will involve the covenantor in expenditure when he repairs the road. Conversely, a covenant to maintain a field free from buildings is expressed in positive terms but it is a restrictive covenant because all that is required is that the covenantor does not build upon the land - in other words it merely restricts his use of the land.

Positive Covenant: The test is whether the covenant involves the covenantor in expenditure; if it involves expenditure, the covenant is positive. The burden of a positive covenant cannot run with the servient land

Touch and Concern: This is one of the requirements for running a covenant at law. In Swift Investments Ltd v. Combined English Stores Group Ltd [1989], Lord Oliver formulated rules which provide a working test for determining whether a covenant touches and concerns the land (a) the covenant benefits only the reversioner for time being, and if separated from the reversion ceases to be of benefit to the covenantee; (b) the covenant affects the nature, quality, mode of user, or value of the land of the reversioner; (c) the covenant is not expressed to be personal; (d) the fact that a covenant is to pay a sum of money will not prevent it from touching and concerning the land so long as the three conditions (above) are satisfied and the covenant is connected with something to be done on , or in relation to the land

Tulk v Moxhay

Since the decision in Tulk v. Moxhay (1848) equity has been prepared to run the burden of covenants in certain situations when the common law would not. The ratio of Tulk v. Moxhay was that a covenant could be enforced against the assignee of the covenantor if the assignee had notice of the covenant. Subsequent case law has restricted the scope of the rule in Tulk v. Moxhay by requiring the following four conditions to be satisfied before that burden will run

the covenant must be restrictive or negative
the covenantee must at the time of the creation of the covenant and afterwards own the land for the protection of which the covenant is made (see London County Council v. Allen [1914])
the covenant must touch and concern the dominant land See Rogers v Hosegood
it must be the common intention of the parties that the burden of the covenant shall run with the land of the covenantor This will usually be presumed under the LPA 1925 s79 unless a contrary intention is shown.

Halsall v Brizell: The rule in Halsall v. Brizell [1967] states that he who takes the benefit of a deed must also shoulder the burden. However, Lord Templeman limited the use of the doctrine in Rhone v. Stephens [1994], he made it clear that the benefit and the burden must be connected, they cannot be independent obligations.

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