Chapter 1

There are no questions for this chapter.

Chapter 2

On-the-spot question

Think about the types of property that you might own. What rights do you think you have in relation to that property? Are you entitled to deal with it or dispose of it in any way you like or are there restrictions on what you can do?

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Answer

You should be able to come up lots of examples of items that you own. Some of these items you will have absolute ownership of; your belongings in your student house for example. In relation to those items you can generally deal with them in any way you like. Others might have been purchased on the basis of an ongoing contract. So, in relation to a mobile phone, for example, you may have a contract through which you pay a monthly sum. The contract is likely to have terms that limit to a greater or lesser degree your ability to deal with the phone as an absolute owner might. Generally when you buy a house you will do so with the help of a mortgage and this also gives the lender rights in relation to your property. Whilst on a day to day basis you will consider the house to be your own, the reality is that the lender also has an interest in your property. They may not be inclined to share the physical space with you but they are entitled to take the house from you if you fail to meet your mortgage repayments.

On-the-spot question

Does a house come within the definition of “land” as set out in S.205(1)(ix) of the Law of Property Act 1925? What about items within the house? Would a picture hanging on the wall become “land”?

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Answer

A house comes within the definition of “land” because the definition includes land and “buildings or parts of buildings”. Items within the building are dealt with differently and will not automatically form part of the building itself meaning they will not necessarily be part of the “land”. If you think about this in practical terms it makes sense. When you sell your house you sell the building and the land but not necessarily everything in it. You would expect that the sink and bath in the bathroom, perhaps, would form part of the building but not necessarily the sofa. This is hopefully relatively intuitive. Why do you think this to be the case? In practical terms the sink and bath would be difficult to remove without causing damage because they are connected to the building. The sofa, on the other hand, can be easily moved and taken with you. As you read through Chapter 2 focus on the section on fixtures and chattels and think about this further. Almost certainly a picture hanging on the wall would be treated as a chattel and therefore an item of personal property that would not form part of the land.

On-the-spot question

If the owners of Hathaway Farm, having made this informal arrangement with the owners of Hathaway Cottage, then decided to sell the farm do you think that the arrangement would have to be honoured by the new owners of the farm?

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Answer

No, the owners of Hathaway Farm have created a personal right by giving permission to the owners of Hathaway Cottage. In the same way that if the owners of the cottage sold their property the permission would cease the same applies to the owners of the Farm. On sale the permission would cease to have any effect.

On-the-spot question

What do you think would happen to the freehold estate in land if the owner of that interest were to die and there was no-one to inherit it?

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Answer

Technically all land is owned by the Crown and so if the owner of a freehold estate dies and does not leave that estate to a successor then the title, or ownership, would revert to the Crown. This is known as “bona vacantia” or vacant goods.

On-the-spot question

You act for a client who, on moving into her new house, has noticed that several items have been removed including a large, American style freestanding fridge freezer from the kitchen and wardrobes that had been built in to the alcoves of the main bedroom. In removing the wardrobes significant damage has been caused. What advice would you offer to the client?

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Answer

This requires you to think about the law relating to fixtures and fittings and apply the tests that came out of Holland v Hodgson, in other words the degree and object of annexation. On the face of it the freestanding fridge freezer would appear to be a chattel because there is a low degree of annexation. As you develop your reading and research further you might start to evaluate this in more detail though. Was the fridge freezer part of an overall design of the kitchen perhaps and therefore an integral part of the building? It might be that without further information we cannot provide a definitive answer but can propose that, in the absence of more detail, it will likely be treated as a chattel. The wardrobes, on the other hand, appear to be fitted wardrobes and therefore more likely to be treated as fixtures. The fact that damage has been caused in their removal would support this. As you legal knowledge develops you should also be thinking about the contract for the sale of the property and what was said about fixtures and fittings. In practice one of the first things that you would do is check the contract to see whether these items were identified as being included or not.

The case of Botham v TSB Bank Plc is a very useful, modern case which discusses a variety of typical household objects in a clear and accessible way.

Chapter 3

On-the-spot question

If you were in the process of buying a house what issues do you think would be of concern to you? Can you think of any rights that others might have in relation to the house that would potentially cause you concern?

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Answer

You may have thought of a variety of issues that you would want to ask questions about and ordinarily it will be the job of your solicitor to answer these or seek explanation from the sellers. Most importantly you will want to know who you are buying from, that they have the ability to sell to you and that they will move out of the property in order for you to move in. In a very practical sense you will want to know that everyone currently living in the house will vacate (this is called giving “vacant possession” of the house). This might sound straightforward but if there are people other than the sellers living at the property your solicitor will have to check what rights they may have and ensure that they agree to the sale and will give you vacant possession.

When you visit a house you might notice that there are third parties who have access over the land. Neighbours, for example, might take their bins out for collection across the back of the garden or there might be areas of land that are not fenced, a shared drive for example and so there are questions about who they belong to. Again, the solicitor would need to check whether neighbours have legal rights that allow them access and on what basis.

On-the-spot question

Read through the sample title register and see whether you can spot the following:

• The legal estate that is registered
• The names of the owners of the property
• Whether the property is mortgaged and, if so, to whom
• The price that was paid for the property by the current owners

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Answer

The legal estate is freehold. You can find this information at numbered point 1 (this is properly referred to as “Entry 1” of the Property Register.

The owners are Paul John Dawkins and Angela Mary Dawkins. You can find this information at Entry 1 of the Proprietorship Register.

The property is mortgaged. At Entries 3 and 4 there is reference to a registered charge, which indicates a mortgage with Weyford Building Society. At Entries 5 and 6 there is reference to a further registered charge with Fast and Furious Building Society.

The price paid is stated at Entry 2 of the Proprietorship Register and is £78,000.

On-the-spot question

A couple who purchased an unregistered title to a freehold house in 1995 are shocked to discover when they come to sell the house that they have never been registered as proprietors. Do they have any title to the house they are trying to sell?

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Answer

They do have a title but not a legal title. Failure to register means that the legal title will have gone back to the original sellers. All is not lost, however, as the couple will have an equitable title as a result of a trust being created. The original sellers will hold the legal title on trust for the couple. This will need sorting out before the couple can sell.   The transfer of title to them needs to be completed by registration as quickly as possible so that they can demonstrate that they have the title and ability to sell.

On-the-spot question

A husband and wife purchased a house ten years ago, each of them contributing towards the purchase price. Only the husband was registered as proprietor of the property. Their relationship broke down and the husband entered into negotiations to sell the house without informing his wife. Whilst the wife was away visiting relatives abroad the husband completed the sale and vacated the property. What rights, if any, does the wife have?

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Answer

The fact that the wife contributed towards the purchase price of the property gives her rights in relation to that property, even if she is not registered as the owner. She has an equitable right under a trust (as was the case in Williams & Glyns Bank Ltd v Boland). This proprietary interest is capable of binding others if it shown to be an overriding interest. In order for that to happen the wife would have to demonstrate that she was in “actual occupation” of the property. This is a question of fact and a temporary visit abroad would not necessarily preclude the wife from claiming actual occupation (see Chhokar v Chhokar for example). Further information might be required about the breakdown of the relationship and whether the wife was actually living at the property (there is a requirement for a degree of permanence and continuity to the occupation). The right to claim an overriding interest is also limited where the occupation is not obvious on a reasonable inspection of the property and the buyer did not know about the occupation. This might apply if the wife had not been living at the property for some time and had moved all of her belongings out.

Chapter 4

On-the-spot question

You act for a client who has held the unregistered title to farmland for over 40 years and who has now decided to sell. Since they acquired the title they have not made any dispositions of the land, have not mortgaged it or created any other interests. Which documents do you think will need to be produced in order to demonstrate your client's title?

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Answer

This is a straightforward registration. Only the conveyance (the document that transferred ownership to the client 40 years ago) will need to be forwarded to the land registry together with the appropriate forms for registration. The conveyance will satisfy the requirements for a root of title and as there have been no dealings since it is only this document that will be required.

On-the-spot question

You are acting for house builder who is interested in buying a piece of land which has an unregistered title. On reviewing the title deeds you notice that the land is subject to a restrictive covenant created in 1937 stating that nothing should be built on the land. The house that your client intends to build will potentially be in breach of that covenant. Your search of the Land Charges Register reveals that the restrictive covenant was not registered as a land charge. What are the consequences of the lack of registration for your client?

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Answer

The Land Charges Act 1925 requires interests that are capable of being registered as land charges to be registered and failure to do this means that it will be void against a purchaser for value of the legal estate. Restrictive covenants are registrable as D(ii) Land Charges and so the restrictive covenant that was created in 1937 (after the coming into force of the 1925 Act) should have been protected by registration against the name of the land owner. If it was not protected and the house builder is paying for the land (which would appear to be the case) then the restrictive covenant will not be binding on them. This is the case even though the house builder is aware of the restrictive covenant because it is noted on the title deeds. When the house builder comes to register their title the Land Registry will not note the restrictive covenant on their title because it will be treated as void.

Chapter 5

On-the-spot question

What might the nature of the legal and equitable titles be in relation to the previously divorced couple?

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Answer

We cannot give a definitive answer here because this obviously depends on the wishes of the couple. However, it is possible that the legal, outward facing title would be held by them jointly whereas the equitable title might record the fact that they would like separate shares that are capable of being left through a will to children from a previous marriage. As you read through the chapter you will discover that this is entirely possible. The legal title will be held as joint tenants and the equitable title as tenants in common. This would be recorded in the transfer deed to the couple.

On-the-spot question

After graduating from university three friends pool their resources and buy the freehold of a Victorian townhouse together. They each have separate bedrooms within the house but share the kitchen, bathroom and living areas. Do they have unity of possession?

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Answer

Yes. Whilst the friends have their own spaces within the house they still enjoy possession of the whole. They have jointly purchased the freehold and so own the whole of the townhouse. They are each entitled to possession of the whole but choose to use their house in such a way that they have their own rooms. This does not negate unity of possession.

On-the-spot question

A solicitor acting for a buyer of a property discovers that one of two registered legal co-owners is deceased. On checking the registered title the solicitor notes that a restriction has been registered protecting an equitable tenancy in common. What steps must they now take?

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Answer

The existence of the restriction on the title indicates that in equity the co-owners held distinct shares. From a buyer's perspective, if one of the co-owners is now deceased, they need to know what has happened to that share. There are two ways of dealing with this issue. The first is that the solicitors acting for the seller will demonstrate how the share has been dealt with and any third party who now has an interest in the property will join in the contract for sale. The second is through the principle of overreaching which would require the seller to appoint a second trustee to act alongside them and accept the purchase monies. If this happened then the interests of anyone who has inherited the equitable share will be bypassed and their interest will vest in the proceeds of sale rather than the property itself.

Chapter 6

On-the-spot question

Do you think that an arrangement whereby a freehold estate owner agrees to allow a student friend the right to occupy the house “for as long as you are a student” is capable of existing as a lease?

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Answer

This is unlikely to be considered a lease. Remember that a lease is described as a “term of years absolute” in other words it is granted for a fixed term. In our example the arrangement is open ended and therefore not likely to qualify as a lease. Even if the student were in occupation and paying rent in relation to the property it is still unlikely to be treated as a lease. This is an arrangement between friends and so a court might find that there is no intent to create legal relations, as was the case in Rhodes v Dalby.

On-the-spot question

Do you think that the decision in Antoniades v Villiers would have been different if the couple had been paying different amounts under the agreements that they signed and had entered into the agreements on different dates?

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Answer

It is useful to read the cases of Antoniades v Villiers and AG Securities v Vaughn to compare and contrast the facts, reasoning and decisions in the two cases. It is useful to review the discussion around the four unities which were found to be present in the Antoniades v Villiers case but missing in AG Securities v Vaughn. Arguably, if the couple had signed separate agreements with different terms (eg the amount of rent) and on different dates then the unities of title (acquiring their interest through the same means) and time (acquiring their interest at the same time) would not be present. In the actual case the House of Lords looked beyond the separate agreements to the true nature of the arrangement between the parties. Do you think that they would still have been able to do this if the terms and dates of the agreements had been different?

On-the-spot question

You act for a client who has been granted a lease out of a registered freehold estate for a fixed term of five years. The lease has been granted using the appropriate formalities of a deed. Are you required to register the leasehold estate and, if not, how will it be protected as an interest in land?

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Answer

The lease will not require registration because it is granted for a term of under seven years (this is the effect of S.4(1)(c) and S.27(1) and (2)(b) of the Land Registration Act 2002. It is, however, binding on third parties as an overriding interest. Schedule 3 of the Act provides that leases of under seven years are automatically overriding interests and so binding on third party buyers of the freehold whether they know about them or not.

Chapter 7

On-the-spot question

Having established that a lock-up garage has been abandoned and is sitting empty a local entrepreneur decides to make use of the space and starts to store garden furniture in it with a view to selling it on the internet. They buy a padlock for it, come and go regularly with new stock and are never challenged about their use of it. Do they have a potential claim for adverse possession?

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Answer

In order to answer this question you will need to consider the tests of factual possession, intention to possess and absence of consent. The facts in the question are quite limited but the open and obvious use of the garage might be an indication that the entrepreneur is using it as an owner might have done and by locking the garage there is potentially evidence of the entrepreneur seeking to exclude others from the land and so demonstrate both factual possession and intention.  In considering whether the tests for adverse possession are met it is useful to look at the facts and decisions in some of the authorities. Enclosure of the land, for example, is a strong indication of possession (Seddon v Smith; Buckinghamshire CC v Moran). In the absence of any consent from the title owner and assuming that they meet the requirements of either the Limitation Act 1980 or the Land Registration Act 2002 then the entrepreneur might have a claim for adverse possession.

On-the-spot question

At the end of a fixed term tenancy agreement the tenant fails to vacate the property. They request a new tenancy and the freehold owners agree to this in principle but subject to the renegotiation of the terms. The freehold owners tell the tenant that they are willing to allow them to remain in the property while the terms are negotiated but that if a new tenancy is not agreed they expect the tenant to vacate. Is the tenant in adverse possession of the property?

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Answer

This question should prompt you to think about the issue of consent. Although the fixed term tenancy has come to an end the fact that the parties are in negotiation for the grant of a new tenancy and the freehold owners have consented to the tenants remaining in the property suggests that their occupation is with the consent of the true owners and therefore there is no adverse possession.

On-the-spot question

Think about the case of Pye v Graham. At what point do you think that the Grahams dispossessed Pye of the land and when did the clock therefore start ticking under the Limitation Act 1980?

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Answer

Dispossession took place once the licence period had finished – in other words once they were in occupation of the land without the consent of the owners. The House of Lords found that it did not matter that the Grahams had remained willing to pay for the land; the fact that they remained in occupation exercising the rights that a true owner would have done and excluding all others (including the true owner) from the land meant that they were in adverse possession.

On-the-spot question

A piece of land (title to which is unregistered), purchased by a house builder in 1982 and for which planning permission was never obtained to build lies disused until 1995. At that point a local farmer moves onto the land, erects fencing and a padlocked gate and starts to graze sheep on the land. The farmer dies in 2001 and six months later a neighbouring equestrian centre takes over the land and builds stables on it. In 2008 the house builder writes to the equestrian centre informing them that they intend to take possession of the land. Who, in your view, has the better claim to the land?

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Answer

This requires you to apply the requirements of the Limitation Act 1980. Remember that s.15(1) of the Act provides that a landowner will lost the right to an action for possession 12 years after the date on which the right of action accrued to them. In this example a right of action will have accrued to the house builder when they were dispossessed of the land in 1995 (in other words the point at which the farmer entered onto the land and exercised exclusive possession). At the point at which the farmer died they had been in occupation for six years and so the house builder still had the ability to exercise their rights or, indeed, go back into possession of the property. The farmer's occupation was followed by the equestrian centre but with a six month gap in between. The issue then becomes a question of whether the occupation by the centre was continuous for the purposes of the Act, allowing them to add the period of their own occupation to that of the farmer. If this were the case then the house builder would have lost their right to possession in 2007 and the equestrian centre would have the better claim. If, however, the six month period in between the occupation of the farmer and the centre was considered to be a break in the chain of occupation then the clock would have started again for the purposes of the Act in 2001 and in 2008, when the house builder wrote to the centre, it is the house builder that would have had the better claim and a right to bring proceedings for possession.

Chapter 8

On-the-spot question

I live in a terraced property. When I take my bins out every Monday evening I have to use a pathway that runs across the back gardens of my neighbours properties and then connects with an alleyway that leads to a gated access onto the main road. On what basis do you think I am entitled to use the pathway and alleyway to get out onto the street?

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Answer

This question requires you to think about the variety of ways in which rights may be exercised in relation to land. It may simply be a case that the pathway has been used without complaint from any of the neighbours without any formal rights at all. This chapter will prompt you to think about whether there is the potential for rights to have been created where there were previously none (in this example perhaps because the use of the pathway has been regular and continuous over a sufficiently long period of time).  On the other hand, by now you should appreciate that rights may have been granted personally through a licence or might have been created more formally through an easement. You should now be familiar with the idea that one way of checking whether there are formal rights in place would be to look at the title to the property.

On-the-spot question

Can you think of a time when you might have exercised a right over someone else's land that might qualify as an easement?

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Answer

It might be worth thinking about this in terms of the house in which you live. How do you access the property? Who owns that land? How do services get in and out of the property? Remember that often the road outside a property will be public so that you will automatically be entitled to use it but if you are accessing a house over a private driveway how will you establish who owns it and who has rights to use it? If there are cables running underneath a neighbour's property then on what basis are you allowed to use them?

On-the-spot question

Can you remember what the formalities for the creation of a deed are?

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Answer

You should refer to s.1(2) of the Law of Property (Miscellaneous Provisions) Act 1989 which requires that (a) the document must state on its face that it is a deed (b) must be executed as a deed and (c) must be delivered.

On-the-spot question

If, on the sale of land, the seller expressly provides that no easements will be granted and the buyer subsequently discovers that the land is landlocked will an easement be implied?

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Answer

On the face of it this question should prompt you to think about an easement of necessity. However, remember that easements of necessity arise out of an assumption that the parties must have intended there to be an easement. Where there is evidence that there was express agreement that no easements would be granted then it is likely that the easement will not be implied.

On-the-spot question

A landowner disposes of part of their land to a local farmer who intends to graze cattle on it. Prior to the sale the landowner used the field as a shortcut to get to the local village shops. In the transfer deed no mention of any such right was made. When the landowner tries to exercise the right subsequent to the sale the farmer tells him he is trespassing. Has the landowner acquired any rights under Wheeldon v Burrows?

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Answer

The rule in Wheeldon v Burrows will not apply here because this would be a reserved right. When the landowner sold the land to the farmer they should have reserved a right benefitting their retained land over the land that was sold. Wheeldon v Burrows can only apply in relation to rights that would have been granted. In practical terms it would be worth the landowner (or more likely their solicitors) checking the contractual documentation to see whether there was a provision that extended the rule to reservations also (this is often a standard provision in residential contracts) but in the absence of this the landowner will have no rights.

Chapter 9

On-the-spot question

You are in the process of buying a brand new house on a local housing development. The site office tells you that in order to keep up the appearance of the development there will be a number of obligations imposed on you as a buyer. These include obligations to contribute towards the maintenance of a driveway shared with your neighbours, to maintain the fencing along the boundary, not to park a caravan on the front driveway and not to use the house for business purposes. How do you think that the developers will ensure that these obligations are met by both you and the other buyers of houses on the development?

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Answer

The developers are likely to create covenants in relation to these obligations. These covenants will be drafted into the transfer deeds of the various houses when they are sold. They are contractual promises between the developer and the house buyer but, as you will see, they have the potential to be enforceable by other buyers of houses on the development also. The extent to which they are enforceable is dependent on the nature of the covenant and the ways in which the developer sets up the estate and the contractual documentation. As you learn more about covenants you should be able to evaluate whether they are positive or restrictive in substance. Covenants that require some form of positive action (and perhaps expenditure) are generally positive in substance (so contributing to the costs of maintaining a shared driveway or boundary structure are likely to be positive). Covenants that prevent or restrict the use of the property will be restrictive (so not to park a caravan or use for business purposes).

On-the-spot question

A buyer of a new house covenants with the developer who is selling not to allow the exterior of the property to fall into disrepair. What is the nature of the covenant entered into?

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Answer

If you follow the thinking outlined above you might, at first glance, think that this is a restrictive covenant. However, look more closely at the substance of the promise rather than the drafting. In order to comply with the covenant the buyer is likely to have to take positive action and, more than likely, spend money. On that basis the substance of the covenant is positive. As you read and develop your understanding of the law of covenants you will start to appreciate why covenants are often drafted in the negative. However, when interpreting covenants the courts will always look to the substance.

On-the-spot question

A local authority sell land to a residential developer subject to a covenant not to build anything on the land other than single storey dwellinghouses. One of the houses that the developer constructs is sold to an architect who wants to build a second storey on the house. What are the implications of the covenant that was originally entered into by the developer?

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Answer

The developer entered into a restrictive covenant when they purchased the land. The burden of restrictive covenants is capable of running with the land subject to the rule in Tulk v Moxhay. In other words provided the tests in that case are met the architect may be bound by the covenant that the developer gave to the local authority. This would mean that the local authority could on the face of it take enforcement action against the architect. If you want to develop your thinking further then consider the position if it were not the local authority that wanted to enforce the covenant but the neighbours of the house in question who objected to the architect's plans. Could they argue that they had the benefit of the covenant and so could enforce it against the architect? They would have to demonstrate that they have acquired the benefit of the covenant through annexation, assignment or a building scheme.

On-the-spot question

The owner of a house on a modern estate claimed that she should not be subject to the positive covenants to contribute towards the cost of maintenance of the private road within the estate because she did not drive and did not therefore derive any benefit from the right of way over the road. She was not the original buyer of the house, having acquired the property from them only recently. Is she bound by the covenant to contribute?

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Answer

You might at first think that as this is a positive covenant and the burden of positive covenants do not run with the land the owner cannot be forced to contribute. However, the limited rule in Halsall v Brizell might be applicable here because the obligation to contribute is linked to a corresponding right of way over the road. Where there is a corresponding benefit and burden it is possible that the burden will be enforced even where the substance of that burden is positive. One point to think about, though, is the fact that the buyer is claiming that she does not drive and so does not enjoy the benefit of the corresponding right. This would need to be investigated further in terms of the nature of the right (does she have to be exercising the right in order to access her property for example even if it is on foot?). However, it is possible that if it could be shown that the right is not exercised and there is no intention to exercise it then there should be no corresponding requirement to contribute towards the cost of maintenance.

Chapter 10

On-the-spot question

You arrange a personal loan with your bank and use the money to do some home improvements, including a small conservatory on the back of the house. What rights do you think the bank would have if you failed to make your repayments?

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Answer

This depends entirely on the nature of the loan and the security, if any, that the bank takes in respect of the loan. Most personal loans do not entitle the lender to proprietary rights in relation to the property. That is not to say that the lender has no rights if you fail to make repayments but these rights will be contractual in nature and will not be enforceable against the property itself.  

On-the-spot-question

A first time buyer, concerned that they will not meet the stringent lending requirements of the high street lenders, is offered a mortgage by a wealthy distant uncle. The terms of that mortgage require the borrower to pay a standard rate of interest but also to transfer to the uncle a half share in the mortgaged property. The borrower is unsure as to whether this is appropriate but enters into the mortgage arrangement. Several years later the debt is repaid but the uncle refuses to transfer back the half share. Does the borrower have any rights?

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Answer

This question should prompt you to think about the corresponding rights of the borrower and lender. Remember that historically mortgages were protected by transferring title in the mortgaged property to the lender. However, a basic right in favour of the borrower was the equity of redemption. In other words if the debt was repaid the property was transferred back to the borrower. The principles of the right to redeem the mortgage are still important today and the courts will protect this right where necessary.