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Chapter 1: Registered Titles
Nature and Purpose of the System of Registered Land
1) To reduce the expense and effort of purchasing land by eliminating the lengthy
and formalistic process of investigating ‘root of title’
2) Reduce dangers facing a purchaser who is buying land from a person whose title
is unsafe
3) Ensure that a purchaser of land knows about the rights and interests of other
persons over that land, ensuring that price paid reflects its true economic and
social value
4) Enable purchaser to buy land completely free of certain types of interests over
that land
5) Provide a mechanism whereby third-party rights can be protected

3 Concepts
Mirror Principle (Title by registration)
Curtain Principle (Equitable interest not registered)
Indemnity Principle
1) Mirror Principle
The idea that register should reflect totality of the rights and interests concerning a
title of registered land
...
Mirror
principle does not operate fully due to the existence of “unregistered interests that
override” under Sch 1 and 3 LRA 2002
...

2) Curtain Principle
The idea that certain equitable interests in land should be hidden behind the curtain of
a special type of trust
...
He need not look behind the curtain of trust or worry about any
equitable rights of ownership
...
Interests of equitable owners are not
completely destroyed as the process of overreaching operates to transfer rights of
equitable owner from land to money that purchaser has just paid for it
...


3) Indemnity Principle
The idea that if a title is duly registered, it is guaranteed by the State
...
The state insures against inaccuracies
or other mistakes in the register
...
g
...
Landlord creates a lease of 10 years for tenant
...
If vendor sells to purchaser, purchaser has
2 months to register
s7: Non-registration would render transaction void, title reverts to transferor
s27: Legal estate/interest can only be conveyed if completed by registration
(2): Dispositions required to be completed by registration
(a) Transfer
(b) Lease of more than 7 years
(d) Interest defined in s1(2) LPA 1925
(f) Charges/Mortgages
s29: Effect of registered dispositions
(1): Purchaser for valuable consideration of registered title takes free of minor
interest not duly protected by entry into the register
(2): Priority of interest that are protected against successors in title (e
...
Purchaser,
Mortgagee)
(a)(i) Registered charge or notice
(ii) Interest that falls within Sch 3 LRA 2002
s32: Notice can be entered in relation to registered estate or charge affected
s33: Interest that cannot be protected by notice
(a)(i) Interest under a trust of land
(b) Leasehold estate granted for a term of 3 years or less and is not required to be
registered

s40: Beneficiary may enter a restriction may prohibiting making of an entry of the
disposition either indefinitely, for a specified period or until occurrence of a specified
event
Schedule 1: Unregistered interests which override first registration
Schedule 3: Unregistered interests which override registered dispositions
Para 1: Leases for a term not exceeding 7 years
Para 2: Proprietary interest and in actual occupation
Para 3: Impliedly created legal easements
(1)(a): Not within actual knowledge of purchaser
(b): Would not have been obvious on a reasonably careful inspection of land
*Types of interests which are not protected by entry into register yet still binds
purchasers are interest that override first registration or registered dispositions

Classes of Land Charges
Land Charges Act 1972
Class A Land Charge
s2(2) LCA 1972: A right arising from an Act of Parliament to receive money from
estate owner where the right requires an application by the person entitled
Class B Land Charge
s2(3) LCA 1972: A right to receive money from estate owner arising automatically by an
Act of Parliament without the need for application by the person entitled
Class C (i) Land Charge
s2(4)(i) LCA 1972: Puisne Mortgage (Second or subsequent mortgage)
Class C (ii) Land Charge
s2(4)(ii) LCA 1972: Limited Owner’s Charge (equitable charge acquired by a tenant for
life or statutory owner under the Inheritance Tax Act 1984 or under any other statute
by reason of the discharge by him of any capital transfer tax or other liabilities and to
which special priority is given by statute)
Class C (iii) Land Charge
s2(4)(iii) LCA 1972: General Equitable Charge (any equitable charge which is not
secured by a deposit of documents relating to the legal estate and does not arise under
a trust of land or settlement and is not a charge by way of indemnity and is not
included as any other class of land charge)

Class C (iv) Land Charge
s2(4)(iv) LCA 1972: Estate Contracts (includes a contract for the transfer of the legal
estate, options to purchase and contract for a right of pre-emption)
Class D (i) Land Charge
s2(5)(i) LCA 1972: Inland Revenue Charge
Class D (ii) Land Charge
s2(5)(ii) LCA 1972: Restrictive Covenants (only those entered on or after 1st January
1926
...
g Deed
not executed)
Grantor only owns equitable estate/interest OR if interest only exist in
equity

(v)

Interest that arise by way of constructive trust or by way of proprietor
estoppel (These interests arise through conduct of the parties and not as a
result of the execution of documents)

Land Charges Register
Rights which are equitable must be protected by way of registration against the name
of the proprietor
Failure to register the interest, the interest will not be valid against successors in title
of the land
Purchaser of unregistered title/land will be bound by equitable interest as they will
have notice of such interest registered as a land charge
...
Appellant Mrs Caine bought and
registered the land charge in the name of Frank David Blackburn
...

Mr Carrick mortgaged the property to Lloyds Bank but failed to keep up repayments
...
If overreaching applies, occupier of a property cannot claim
their occupation of the property is an overriding interest
...
Marriage broke down and wife moved out but would return
to look after their children and stay the night when husband is away
...
He arranged for inspection at a time
when he knew house would be vacant
...
Husband said she moved out months ago
...
Discrepancy between what
Mr Tizard stated on his application form and what agent found when he inspected the
property put lenders on notice
...
Inspection was inadequate since it was at a prearranged time

3) Imputed Notice
Kingsnorth Finance v Tizard (1986)
Where purchaser employs an agent for the transaction, actual or constructive notice
received by the agent is imputed to the principal
s199(1)(ii)(b) LPA 1925: Rules restricted to notice acquired in the same transaction

4 elements for Doctrine of Notice to operate
1)
2)
3)
4)

Purchaser of legal estate
Purchaser for valuable consideration
Good faith
Without notice

1) Purchaser of legal estate
Not necessary to show that he had acquired the legal estate, suffices if he has
obtained any type of legal estate in the land (e
...
Lease, Mortgage) as opposed to
equitable interest in the land

2) Purchaser for valuable consideration
s205(1)(xix) LPA 1925: Purchaser means a person acquiring an interest or charge on
property for money or money’s worth
...


3) Good faith
Midland Bank v Green (1981)
Farmer granted option to purchase his farm to his son
...
Wife died and through a will,
left the farm equally to her sons and daughters, including the claimant
Option to purchase should have been registered under LCA 1972
...
Requirement that they honestly did not know of the
interest and not that they wilfully chose to ignore it
Lord Wilberforce: Equity required not only absence of notice, but genuine and honest
absence of notice
...
Bank knew about the
family circumstances
...
Wife applied to have
the charge set aside
Application failed
...
Court rejected bank’s contention that actual knowledge was required but
accepted that bank was not put on notice of husband’s intention to defeat wife’s claim

Chapter 3: Co-Ownership
Types of co-ownership in land

Joint Tenancy

Tenancy in Common

Importance of Co-ownership
1) Land is at times not owned by one single owner
2) More than 1 person having interest in land
3) Family or matrimonial home issues

Joint Tenancy
a)
b)
c)
d)

There can only be a joint tenancy if ‘4 unities’ are present
The right of survivorship
Co-owners are each entitled to the whole of co-owned land
Severance is possible

4 Unities
1) Unity in possession
All joint tenants must be equally entitled to possess the whole of co-owned land
...
In the eyes of the law, there is only one formal title and this
title is jointly owned by all joint tenants

Severance
A property has both a

Legal Title (Legal interest)
Equitable Title (Equitable interest)

*Severance can only occur at equity
...
Upon realizing that husband was about
to die, she destroyed the notice upon delivery so husband never read the notice before
his death
Notice was effectively served when delivered
Re 88 Berkeley Road (1971)
Wife sent husband notice to sever joint tenancy
...
Husband was killed in a car crash before hearing of the issue
The intention to sever the joint tenancy did not take effect immediately, as such the
joint tenancy was not severed

At common law
Williams v Hensman (1861)
1) Severance by an act operating on joint tenant’s own share
(i)

Sale of his own share

(ii)

(iii)

Mortgaging his own share
First National Securities Ltd v Hegerty (1985)
Husband and wife were joint tenants of matrimonial home
...
Husband took the money and fled abroad
...
This could be seen as an act of an individual acting upon their
own share
...
Therefore, lender was entitled to a
legal charge over the property enforceable by way of an order for
application for sale
Bankruptcy
Re Dennis (1992)
Property held in joint names
...
Wife died and a month
later husband was made bankrupt
Act of bankruptcy did not operate as an involuntary act to sever the joint
tenancy and bankrupt inherited the jointly held property
...
Both orally agreed that female’s share would be sold to male
No severance
...
Relationship broke down and in
agreement in principle they decided to separate, each taking one of the
properties
...

As joint tenancy had not been severed, wife entitled to right of survivorship
...
They play an administrative
role with regards to property (Particular purpose of property/When property
should be sold)

2) New Law
Trusts of Land and Appointment of Trustees Act 1996
A) Powers and Duties of Trustees
s6(1): Trustees have powers of absolute owners
s6(2): Power to force beneficiaries to take conveyance of land
s6(3): Power to buy/lease/mortgage land
s7: Power to partition the land
s10: Duty to seek consent
s11: Duty to consult beneficiaries
s13: Exclude and restrict right of beneficiary to occupy
(1): Trustee may exclude or restrict right of occupation of any one or more (not all)
beneficiaries
(5): Impose on beneficiary to pay for expenses on land
(6): Impose on beneficiary to pay compensation payment to those beneficiaries whose
entitlement has been excluded or restricted
B) Rights of Beneficiaries
s10: Right to have consent sought
s11: Right to be consulted
s12: Right to occupy trust property (Unless unavailable or unsuitable)

s14: Application for order for sale or postponement of sale (Beneficiaries, trustees,
creditors, trustee in property can apply)
s15(1): Factors to be considered in considering application for order for sale or
postponement of sale
(a): Intentions of person creating the trust
(b): Purposes of property
Re Buchanan-Wollaston’s Conveyance (1939)
Owners of land with sea views purchased the strip of land separating all of their houses
from the sea, such that their view of sea would remain unrestricted
...
If the purpose of property no longer subsists, court
may order a sale of the property
(c): Welfare of minor
(d): Interests of secured creditor or any beneficiaries
Mortgage Corporation v Shaire (2001)
Mrs Shaire and MR Fox jointly owned a house as tenants in common
...
His mortgagee sought an order for sale
There was no longer a presumption of sale, court has a wider discretion to protect
families from mortgagees
...
g
...
Trust allows a property to be split into
legal and equitable titles
...
s53(1) LPA 1925: Express declaration must be
manifested and proved by some writing as purely oral declaration alone is not enough

Implied Creation of Trust
Resulting Trust
Law will consider facts of the case and then conclude if there is a resulting trust that
can be presumed
...
Providing direct contribution to purchase price of house
Burns v Burns (1984)
Cohabitants for 19 years, woman took man’s name and she went beyond taking on usual
household duties but made no direct financial contribution to the house
...
Parkes bought the house and Curley contributed
nothing to the purchase price
...
The payments were made by Curley after the property was purchased,
hence taken not intended to have legal consequences and Curley had not directly
contributed to purchase price

Midland Bank v Cooke (1995)
Matrimonial home was in the sole name of Mr Cooke
...
Mrs Cooke did
not contribute to purchase price nor mortgage payments but she did discharge
household bills
...
Mr Cooke remortgaged the house to secure his business debts and bank asked Mrs Cooke to sign a
consent form postponing interest she held to the bank
...
Mrs Cooked claimed to be
entitled to beneficial interest in property and claimed to have signed the consent form
under undue influence
Mrs Cooke was entitled to 50% of the beneficial interest

Constructive Trust
Lloyds Bank v Rosset (1989)
Mr Rosset is the sole registered proprietor and only financial contributor to a shared
estate, secured a loan against that estate
...
Mr Rosset defaulted on payments and bank sought
repossession of the property
Bank’s claim was successful
...
Claimant fell pregnant and took on defendant’s name
...
They purchased a house in defendant’s name
alone
...
Purchase price was
contributed by him and a mortgage
...
When divorce came through, they agreed to marry but didn’t
...
Mr Edwards told claimant who was pregnant with his child that her name
should not be added to the legal title as it may affect her divorce
...
There was
a common intention that she was to have a share in the property

b) Inferred common intention from payments
Lloyds Bank v Rosset (1989)
Lord Bridge: Direct contribution to purchase price or payment of mortgage instalments

c) Inferred common intention from parties’ course of conduct
Stack v Dowden (2007)
Cohabitants purchased a house in their joint names but made no declaration as to
entitlement of beneficial interest in the property
...
Ms Dowden also paid majority of the utility bills
Starting point for determining beneficial interests where legal title was held jointly is
that beneficial interest will also be held jointly
...
Claimant agreed to help him with several property development
projects and defendant promised their marriage and a dream home
...
They lived in the property
together before relationship broke down
Detrimental reliance could be proven even if the actions are motivated by love and
affection
...
She had
detrimentally relied on that common intention when she left her job and moved to
England
...
No provision was made
for Ms Cooke, who then worked without payment for 27 years
Ms Cooke could remain living in the property
...
It has
a wider scope than promissory estoppel
Proprietary Estoppel can be used both as a defence and cause of action
Promissory Estoppel can only be used as a defence
Dillwyn v Llewelyn (1862)
Claimant son relied on an informal memorandum that he will obtain rights in his father’s
land
...
Late father’s estate refused son an interest
in the land
Estate was estopped from denying the interest as the son spent money in reliance to
the informal memorandum
Jennings v Rice (2002)
Claimant worked as handyman for Rice
...
Rice promises that her house and furniture would become claimant’s on her
death
...
Proprietary estoppel
allows the court to award minimum equity to do justice

Conditions/Requirements for Proprietary Estoppel
Willmott v Barber (1880)
Barber was the tenant of 3 acres of land
...
Barber also granted Willmott an option to purchase
Barber’s lease of 3 acres to which Willmott sought to exercise the option
...
Landlord
refused to give consent and Barber refused to assign the lease to Willmott
...
He relied on estoppel on the basis that landlord allowed
Barber to spend money on the land in mistaken belief that he would be able to exercise
the option
Court would not force a defendant to act in breach of covenant
Fry J: 5 probanda of proprietary estoppel
1) Claimant must have made a mistake as to his legal rights
2) Claimant must have performed acts in reliance on this mistake

3) Defendant must know of the existence of his own right (which is inconsistent with
claimant’s mistake)
4) Defendant must know of claimant’s mistake
5) Defendant must have encouraged claimant’s mistake
Taylors Fashions Ltd v Liverpool Victoria Trustees Ltd (1982)
Claimants were tenants of defendant, purported to have an option to renew the lease
...
Claimants claimed to have substantially
improved the lot on assumption that they had a right to renew the lease
Defendant had done nothing to encourage first claimant to make the improvements
...
Claimant left
defendant and told her she could have the house but never formally transferred the
title
...
He was aware of the expenditures and her belief but did nothing
Defendant could remain in the house and was entitled to have the title transferred to
her through proprietary estoppel
*Active assurance
Gillett v Holt (2000)
Mr Gillett left school at 15 and has been working on Mr Holt’s farm ever since
...
Mr Gillett accepted low wage, worked long
hours
...
Son built it at his own expense
and moved into the bungalow
...
His expenditure of money on the land at his
father’s encouragement raised an equity which was satisfied by granting a license for
life
Lord Denning: Even though there was no binding contract to grant any particular
interest to the licensee, court could look at circumstances to see whether there is an
equity arising out of expenditure of money
*Active assurance by conduct

Detrimental Reliance
Greasley v Cooke (1980)
Cooke moved into Greasley household to become a maid for free on assurance that she
would have a home for life following the deaths of Greasleys
...
Reliance may be assumed where a claimant
acts to their detriment
Wayling v Jones (1995)
Claimant acted as defendant’s chauffeur for pocket money, following assurances that
he would inherit defendant’s business to which claimant and defendant were partners in
...
He has acted to his detriment
...
They entered into an oral agreement
covering the core terms of the negotiations
...
Following this, Yeoman’s demanded an increased upfront
payment
When Cobbe made the planning application, his expectation was that he would then sit
down with Yeoman’s to agree the outstanding contractual terms to be incorporated into
the formal written contract, not that he would be entitled to ‘a certain interest in land’

Hopper v Hopper (2008)
Unconscionability means whether in all circumstances, landowner can resile from the
assurance he has given and on which claimant has relied to detriment

Remedies
1) Transfer of legal title
Pascoe v Turner (1979)
Husband left wife for a mistress
...

Husband wished to attain possession of the house, wife claimed that house was hers
Claim for possession by husband failed
...
No provision was made
for Ms Cooke, who then worked without payment for 27 years
Ms Cooke could remain living in the property
...
Couple spent money improving the property
They were entitled to the return of the money spent improving the property
4) Charge over the house
Campbell v Griffin (2001)
Claimant moved in with a much older couple as a lodger
...
They promised him he could live in the house for
the rest of his life
...
Husband
died and land was passed to his wife under right of survivorship
...
Oral evidences can be challenged as it is not
conclusive and are uncertain
...

- Channelling Function
It ensures that transactions are done by the legally prescribed way
...


Proprietary Estoppel and Constructive Trust
Yaxley v Gotts (2000)
Claimant made oral agreement with defendant that he would refurbish and convert a
house belonging to defendant into flats and in return claimant would own the ground
floor flat
...
Estoppel should not be used to circumvent a statute,
however, where there was a finding of estoppel there would also be a constructive
trust
...
It creates both a
control and a proprietary right
Lease can be created in two stages:
1
...
Execution of contract by the grant of a lease by deed
Where a lease is created without first concluding a separate contract to grant it, the
lease itself amounts to a contract between them

Defining Lease
Street v Mountford (1985)
Street granted Mountford the right to occupy two rooms in his house, with exclusive
possession, for a weekly rent and terminable on a 14 days’ notice
...

Mountford sought declaration that agreement constituted a lease
Agreement was a lease
...
There were separate beds within the flat but landlord
knew they were to live together as husband and wife as he supplied a double bed at
their request
A lease was created as all three parties intended that exclusive possession should be
given to the couple

AG Securities v Vaughan (1990)
AG licensed each of 4 rooms in the property to separate individuals under separate
agreements
Four unities necessary for a joint tenancy as not satisfied, it was therefore a license
Crancour v De Silvaesa
Agreement described occupation as licenses
...
Occupants argued agreement was a
tenancy
Agreement was license not lease
Facchini v Bryson (1952)
Employer entered into agreement with his assistant which allowed assistant to occupy a
house in return for weekly rent
...
Agreement stated it was not a tenancy
Agreement created a lease rather than a license
Aslan v Murphy (1990)
Agreement stated that licensor was unwilling to grant licensee exclusive possession of
any part of the room and licensor may permit others to use the room
...
However, in practice no others were permitted to enter the
room and no services were actually provided
Held to be a sham licence designed to avoid landlord and tenant legislation
Marcroft Wagons Ltd v Smith (1952)
Owner allowed a deceased tenant’s daughter to remain in occupation of house
...

Daughter paid a fee in return for the occupation and claimed to have a lease as she had
exclusive possession
There was no lease
...
He offered him accommodation and
extended his employment to coach driver
...
Lease was said to last until the
land was required for further development
Lease was void as prospective certainty is required in certain duration of a lease
s149(3) LPA 1925: Term can commence at a future date but not more than 21 years
from the date of the lease
s149(6) LPA 1925: Lease for life or until marriage is to take effect as a lease for 90
years

Rent
Ashburn Anstalt v Arnold (1989)
Arnold occupied premises for running a retail outlet
...
Arnold sold his lease to Matlodge and was permitted to
remain in occupation rent free until given a quarter’s notice to quit
...
The giving of quarter’s notice was sufficiently certain
Mikeover v Brady (1989)
Agreement required the payment of separate rents
The term was a sham, in reality occupants were responsible for the other’s rent in full
s205(1)(xxvii) LPA 1925: Terms of years means a term of years whether or not at a
rent
Bostock v Bryant (1990)
Rent need not be in monetary form but amount must be capable of being rendered
certain
...
s
...
Tenant must be paying best rent
Fitzkriston v Panayi (2008)
New landlord wanted to remove existing occupier
...
New landlord argued that the tenancy was not binding
Rent payable was not best rent for the property, valuation evidence showed
market rent to be between £12,000 and £20,000 per annum
...
s53 LPA 1925: Must be created by deed
(s1 Law of Property (Miscellaneous Provisions) Act 1989: A deed must be
signed and witnessed by one other person)
3) Leases over seven years
a
...
Must be created by deed and registered to take effect at law

Events Triggering Registration
1) Grant/Transfer of a registrable lease
s4(2) LRA 2002: Qualifying estate is an unregistered legal estate which is a
leasehold estate for a term which has more than 7 years to run
s4(4)(b) LRA 2002: Registration requirement does not apply to an
assignment/surrender of a lease to the owner of the immediate reversion where the
term is to merge in that reversion
2) Transfer of an unregistered lease with more than 7 years to run
s4(1)(a) LRA 2002: Registration requirement for a transfer of a qualifying estate

s4(2) LRA 2002: A qualifying estate is an unregistered legal estate which is a
leasehold estate for a term with more than 7 years left to run
3) Voluntary first registration of lease with more than 7 years left to run, or a
lease for a discontinuous term
s3(3) LRA 2002: Voluntary registration may only be made if the estate was granted
for a term of which more than 7 years are unexpired
s3(4) LRA 2002: Above does not apply if the right to possession under the lease is
discontinuous
s3(7) LRA 2002: If a person holds both a lease in possession and a lease to take
effect in possession at the end of the lease in possession, they are to be treated as
one continuous term
4) Grant of a lease out of a registered title, or disposition or a registrable lease
s27(2)(b) LRA 2002: Grant of term of years absolute for a term of more than 7
years

Lease Protected by Notice and Leases that Override
A lease over three years but under seven years
s32 LRA 2002: Notices can be entered to protect priority of interest
s33 LRA 2002: Does not apply to leasehold estate granted for a term of three years or
less AND not required to be registered
*Short leases over three years may be entered as notice but are automatically
overriding under Sch 3 Para 2 LRA 2002 in order to maintain efficiency of register and
not clog it with minor short leases

Equitable Leases
An equitable lease arises from an enforceable contract between landlord and tenant to
grant lease, but where no grant of lease by deed has in fact occurred
1) Contract must be enforceable
s2 LPMPA 1989: Contract must be made in writing, incorporating all terms expressly
agreed by the parties and signed by or on behalf of all parties

2) Remedy of specific performance must be available
Walsh v Lonsdale (1882)
A 7 year lease was granted by Lonsdale to Walsh over a mill with rent payable in
advance upon demand
...
Lonsdale demanded the upfront
payment, Walsh refused to pay and Lonsdale issued an execution against the premises
...
Specific performance is
discretionary; court under equity will require a party seeking equitable remedy to come
with clean hands
Prior to 1926, equitable lease was liable to be destroyed by a bona fide purchaser of a
legal estate for value without notice
...
Assignee stayed in possession
at the end of term and lease continued by virtue of statute
...
Lessor
assigned benefit of the lease
New landlord could enforce the covenant against the guarantor
Test to be applied in determining whether covenant touches and concerns land:
1) Whether the covenant could be imposed on any owner of an estate
2) Whether covenant affected nature, quality, mode of use or value of reversioner’s
land
3) It must not be expressed to be personal

Privity of Estate and Legal Assignment of the Whole Term
Privity of estate exists where claimant and defendant in an action on a leasehold
covenant currently stand in the relationship of landlord and tenant under legal lease
Privity of estate can only exists where both original lease and assignment of lease are
legal in character

Spencer’s Case (1583)
If satisfied, the benefits and burdens of covenants will pass to the assignee of the
lease

Assignee of the Reversion
s141 LPA 1925: Rent and benefit of lessee’s covenants to run with the reversion
s142 LPA 1925: Obligations of lessor’s covenants to run with reversion
Rickett v Green (1910)
Benefits and burdens of covenants will pass on the assignment of the reversion,
whether lease is by deed or not
Re King (1963)
Assignee becomes the only person entitled to sue, even in respect of breaches of
covenant that occurred before the assignment

Sublessee
Spencer’s Case (1583)
There is neither privity of contract nor privity of estate between a lessor and a
sublessee, covenants will not be directly enforceable against the sublessee

Tulk v Moxhay (1848)
Tulk sold a plot of land to purchaser who covenanted not to build on it
...
He refused to comply with the restrictive
covenant despite knowing its existence
Since Moxhay has actual notice of the restrictive covenant, he is bound by it

Leases Created On or After 1st January 1996
s3 Landlord and Tenant (Covenants) Act 1995: Benefit and burden of all covenants will
pass on an assignment of a lease or a reversion (Except those expressed to be personal
and covenant need not touch and concern the land)
First Penthouse v Channel Hotels and Properties (2004)
Lightman J: Tenancy does not have to spell it out in terms that covenant is to be
personal
...
This is because the release of the original tenant from liability on assignment
deprives landlord of an effective remedy if tenant currently in possession defaults on
the lease
s16 LTCA 1995: Where on assignment a tenant is released from a tenant covenant,
nothing in this Act shall preclude him from entering into an authorized guarantee
agreement with respect to the performance of that covenant by the assignee
s25(1)(a) LTCA 1995: Any clause in a lease seeking to exclude, modify or frustrate the
operation of the Act is invalidated

Assignee of Lease and Reversion
s3 LTCA 1995: Benefits and burdens of all tenant and landlord covenants of a tenancy
will automatically pass with an assignment of either the reversion or the lease (No need
for covenant to touch and concern land, unless it is personal in nature)
s3(6) LTCA 1995: Automatic transfer does not apply to personal covenants
*Assignee has no rights or liability in relation to pre-assignment breaches

Sublessee
Rules relating to enforceability of covenants against sublessees are unaffected by
rules of LTCA 1995

Termination of Lease
1) Forfeiture
Landlord’s right to re-enter premises because of tenant’s breach of covenants
A remedy that can result in tenant’s estate in the land being terminated, even if loss to
the landlord due to the breach is small, even if ejection of tenant will give landlord a
windfall gain by reacquiring the unencumbered freehold
Matthews v Smallwood (1910)
Tenant granted a sublease in breach of covenant against subletting
...
Lessor
served a valid notice to lessee to suspend lease pending forfeiture
...

Both landlord and tenant must have unqualified rights to determine tenancies
Where it is joint tenants
Hammersmith and Fulham LBC v Monk (1992)
One of the two joint tenants of a house left and was granted a new tenancy
...
Tenant sublet the land to
Morgan who farmed it
...
Permission to occupy can either be a lease
(granting statutory protection) or a license (personal right)
...
Before being given a chance to leave, relative of occupier applied force
to the officer
Although bare licence may be revoked at any time, occupier must give licensee
reasonable time to leave
Licensee has no claim in damages or specific performance if license is terminated
Bare license is not an interest in land, it is a personal interest

Licence Coupled with Interests
Implied licence granted to facilitate the enjoyment of another interest
James Jones v Earl of Tankerville (1909)
James Jones granted right to chop down trees and take timber from land of Earl of
Tankerville
...
Defendant gave up this rent
controlled accommodation in return for a better home for her and twins (fathered by
claimant), supplied by claimant
...
X sells farmhouse to Y whilst retaining the
farmland
...
X sells farmland to Y whilst retaining the
farmhouse
...
Conveyances
granted to purchasers the full enjoyment of the park
...
g
...
Field A was accessed from the highway along a
lane, into a field and across that field into field B
...
Fields B and C were leased to Savage who was informed that he was entitled
to private right of way over field A along the lane to the highway
...
Pugh accidentally
obstructed the pathway with hedge trimmings
...
Pugh sought injunction and damages for trespass
Savage was entitled to a right of way over the land
...
g
...
House originally had been part of a larger
detached house with single ownership which had been divided in two
...
Entrance to
cellar in the house was on defendant’s property and cellar ran under claimant’s property
...
Access to orchard from road was via a
strip of land
...
Greenhalf claimed he had easement to park
his car over the strip
The right claimed was not capable of being an easement as it would effectively deprive
the servient owner of the area of land
London & Blenheim Estates v Ladbroke Retail Parks (1994)
London & Blenheim Estates were owners of land over which the local co-op store had an
easement for car parking
...
Co-op sold their dominant land to
Ladbroke, who claimed additional parking rights once London & Blenheim Estates
acquired more land
Ladbroke was not entitled to more parking rights as such a claim would undermine the
certainty of easement, potentially depriving the servient landowner of reasonable use
of unidentified land in the future
Batchelow v Marlow (2001)
Batchelor owned a car parking area, which was the servient land to an easement
granting Marlow the right to park up to 6 cars on the land between certain hours on
weekdays
It is irrelevant what other land the servient owner owns, exclusive possession is to be
judged on the area of land subject to the easement only
...
Easement was not enforceable

Moncrieff v Jamieson (2007)
Easement was granted over servient land to access dominant land, which was relatively
difficult to access
...
Where ancillary rights to easements are necessary for the
reasonable enjoyment of land, they may be held to exist
...
g
...
A document was
construed strictly against the grantor as the seller does not reserve the right of way
prior to the sale of the ST to the purchaser
Rights should be expressly reserved
...
Claimant had taken a lease on his land subject to all rights and easements
belonging to any adjoining and neighbouring property
Pwllbach could not had an implied easement as easements of common intention will only
be found where they are necessary for a definite and particular purpose
Davis v Bramwell (2007)
Applied Pwllbach, implied reservation only when there is a common intention that the
land reserved be used in some definite and particular manner
Peckham v Ellison (2000)
Tenants of number 16 had always been using a path on the land forming part of number
15 to get to the back door of their unit
...

Regulations required ventilation duct to be installed
...

A ventilation duct was necessary for that particular and definite purpose
ii)

Common Intention

Right which is necessary for reasonable enjoyment of land
...
Question was whether neighbours had a
right of way over a pathway through one party’s garden
There was an implied grant as parties could not use the 3 feet path without crossing
into each other’s path

Stafford v Lee (1993)
Plaintiff had built houses on his land and sought easement of necessity over the
neighbour’s drive for access for the houses saying an intended easement had been
granted because it was known to the parties when the land was sold that it was to be
used for residential purposes and that it was therefore implied that a right of way
would be needed
It was within the common intention of the parties that right of way was within
contemplation of the parties
iii)

Wheeldon v Burrows

Wheeldon v Burrows (1879)
Workshop and adjacent land owned by Mr Allen
...
Mr Wheeldon died and his widow started building on the
land
...
Hence, the
use by claimant must be of right (uninterrupted usage)

Nec vi, nec clam, nec precario (Without force, without secrecy, without permission /
Not by force, nor stealth, nor the licence of the owner)

Chapter 7: Freehold Covenant
Freehold covenant is a promise that is made by deed
Promisor – Covenantor
Promisee – Covenantee
e
...


Promise not to build on land (Restrictive covenant)
Promise to maintain boundary fence (Positive covenant)

Original Parties to the Agreement
Have privity of contract, entitled to sue for damages and equitable remedies such as
specific performance and injunction

Passing of Benefit at Common Law (Positive Covenant)
1
...
Following the husband’s death,
nephew did not pay the money as agreed
Claimant could not enforce the contract as she was a third party and hence not a party
to the contract
...
Contracts (Rights of Third Parties) Act 1999
For contract created after 11th May 2000 and if there is a reference to the successor
in title (the third party)

3
...
However, express notice must be given to the original
covenantor

4
...
Common Law
P&A Swift Investments v Combined English Stores Group (1989)
Defendant guaranteed that lessee would comply with a covenant in their lease
...

Covenant was given to owners and their heirs and assigns, and was given on behalf of
the covenantors and their heirs and assigns
Neither benefit nor burden of this covenant ran with the land
...
Covenant to perform
positive acts is not one the burden of which runs with land so as to bind the
covenantor’s successors in title
If one is not party to original agreement, he is not to be bound by the covenant

Exceptions:
i)

Chain of unbroken indemnity

An indemnity covenant must be extracted from each successor in title whereby a
promise is made by the successor in title to pay the original covenantor damages which
would have been awarded against the original covenantor for the successor in title’s
breaches

ii)

Doctrine of mutual benefit and burden

Halsall v Brizell (1957)
Owner had easement to use estate roads, drains etc subject to obligation to contribute
to repair and upkeep
...
Burden
of a positive covenant could pass to the person benefitting from it
Thamesmead Town Ltd v Allotey (1998)
Successor in title to the original covenantor would not pay his share of costs of
repairing and maintaining sewers he used
...
Claimant successor in title of dominant tenement claimed that
the benefit was to be annexed to the dominant tenement despite there not being any
express word
Covenant had been intended for the benefit of dominant tenement
c) Statutory Annexation
s78 LPA 1925: Deem that parties intended the benefit to be annexed to the land in
absence of contrary intention
Federated Homes Ltd v Mill Lodge Properties Ltd (1980)
Company owned a site which included three parcels of land
...
Plaintiff became owners of the other two parcels
of land
...
Defendant carried out
development on the first patch of land which had been granted planning permission
...
The section
provides for statutory annexation of covenant which touches and concerns land,
covenant is annexed to every part of the land in the absence of clear contrary
indication

2) Assignment
Transfer of benefit by one person to his successor in title and must happen at the time
land is transferred
Miles v Easter (1933)
Company bought some land and mortgaged it to a bank
...
This was applicable
to B and subsequent owners of land
...

Defendant sought to enforce the restrictive covenant
Defendant could not enforce the restrictive covenant against the plaintiff as there was
no evidence that benefit of the restrictive covenant had been annexed to plaintiff’s
land

3 requirements for assignee to inherit the benefit:
1) Covenants must be taken for the benefit of the land owned by the covenantee
2) It must be possible to identify the benefitted land
3) Assignment must happen at the same time as transfer of the DT

3) Building Scheme
Defined area of land sold by a single vendor subject to restrictive covenants intended
to benefit the land
Elliston v Reacher (1908)
Building society bought land and covenanted with purchasers not to use any plot of land
as a hotel unless consent of building society was obtained
...
Both parties could rely on
the benefit of the covenant and plaintiff could rely on an injunction to prevent building
and use of a hotel on the property

Passing of Burden in Equity (Restrictive Covenant)
Tulk v Moxhay (1848)
Plaintiff sold property with restrictive covenant that it be maintained in a certain form
...
Property
sold to defendant who sought to build upon the land
...

Defendant could not stand in a different situation from the vendor
4 requirements for burden to pass in equity:
1) It must be a negative covenant
2) Covenant must touch and concern land
3) Original parties must have intended that the burden binds successor in title
4) Successor in title must have notice of the covenant
s79 LPA 1925: Unless there is contrary intention expressed in the original covenant,
burden will pass
In the event burden passes to the successor in title of the covenantor, he can only be
sued for damages but not be compelled to observe the covenant
...
He may apply for a first registration under LRA
2002
s15 Limitation Act 1980: No action shall be brought by a person to recover any land at
the expiration of 12 years
s17 LA 1980: At the expiration of such period, title of the person to the land shall be
extinguished

Leasehold Title
If tenant surrenders property to landlord before squatter completes 12 years,
squatter needs to clock 12 years against the freehold title owner (Time starts to run
afresh)
Fairweather v St Marylebone Property Co Ltd (1963)
A shed lay across boundary between two leasehold properties, 311 and 315
...

Tenant of 315 surrendered the lease
...
The effect of surrender was
that landlord had an immediate right to possession and did not have to wait until the
lease expires

Registered Title
a
...
If squatter does not complete 12 years before October 2003 but apply for
registration after completion of 10 years:
1) Registrar will notify landowner or interested parties
2) Landowner has 65 business days to respond to the notice
3) Landowner serves a counter-notice stating the nature of objection
4) Once counter-notice is serviced, registrar will hear the matter
Squatter may then rely on Schedule 6 Para 5 LRA 2002 to argue adverse possession
Schedule 6 Para 5 LRA 2002
(2): That it’s unconscionable for landowner to dispossess squatter (Proprietary Estoppel)
and circumstances are such that applicant ought to be registered as proprietor
(3): Squatter has separate proprietary claim
(4): Boundary disputes, squatter to prove that
(a): he owns the adjacent land
(b): exact boundary line has not been determined
(c): there was a continued adverse possession for 10 years
(d): land in dispute has been registered for more than 1 year
*Claimant to prove that he has adversely possessed the disputed strip of land whereas
owner disputes that boundary line is correct
Zarb v Parry (2011)
Parties disputed the position of boundary between their properties
Appellant’s acts had been insufficient to disturb the adverse possession of the
respondents
...
If squatter is evicted, an application must be made within 6 months of the
eviction in order to allow registrar to consider the claim
*If registrar finds in favour of claimant, claimant is registered as new proprietor of
the disputed property

c
...
Dispossession/Discontinuance of Possession
2
...
Land left
vacant for years
...

Defendant treated the plot as part of his garden albeit being aware of its true
ownership
...
Claimant claimed that defendant could not
make out factual possession, as his use of the land was not inconsistent with claimant’s
plan to develop the plot
Defendant established a title by adverse possession and the fact that his use of land
was not inconsistent with the true owner’s intended use of land was irrelevant
a
...
However, it is neither indispensable nor conclusive
...
g
...
He
subsequently occupied it
An inspection would have revealed an intention to assert ownership against the world
...
Intention to Possess
It is neither an intention to own nor an intention to acquire ownership
...
This is often deduced from acts of the squatters which make out factual
possession
Powell v McFarlane (1977)
Powell lived on his grandfather’s farm
...

McFarlane moved overseas and Powell grazed a cow and a goat on that land
...
Activities took place for more
than 12 years
Powell’s actions were not sufficient to amount to factual possession
Slade J: Intention is to exclude the world at large so far as it is reasonably practicable
and law allows
Pye v Graham (2003)
Pye allows Graham to use the land for grazing cattle
...
He held the key
...
This never
happens and Pye continues to use the land
...
Graham had given him
permission to possess
...
There is
no need for usage to be inconsistent with future intended use by the owner although
there would be a strong evidence of animus possidendi (intention to possess)

Chapter 9: Mortgages
Position of Mortgagor
1) Equity of Redemption
Mortgagor’s interest in the land (e
...
value of land after debt attached to it has been
paid), gives mortgagor right to redeem the mortgage
Part of a set of wider rights that a mortgagor has (collectively known as ‘equity of
redemption’)

Preventing the Removal of Right to Redeem
a
...
Postponing Right to Redeem
Provision postponing date of redemption may be valid where mortgage was negotiated
between commercial parties at arm’s length
Knightsbridge Estates Trust Ltd v Byrne (1940)
Contractual date for redemption set 40 years in future
Postponement term was enforceable since parties were commercial and of equal
bargaining power
c
...
g
...
Such a provision will be void
Jones v Morgan (2001)
Nursing home threatened with repossession but an agreement reached to prevent this
and give lender the right to buy a half share in the mortgaged land
Such term is repugnant to the very nature of the mortgage, offensive to both legal and
equitable right to redeem and will be void both at law and at equity

Reeve v Lisle (1902)
Option to purchase property given to mortgagee in a separate and independent
transaction can be valid provided that it does not de facto form part of the mortgage
itself

Redemption Free From Conditions/Collateral Advantage
Bradley v Carritt (1903)
Shares in a tea company had been mortgaged to secure a loan from broker on terms
that mortgagor would seek to ensure that mortgagee should thereafter have sale of
company’s teas
...
One of the terms was that for 5 years the appellants would have
the option of buying sheepskins from the meat company
...
It was not part of the charge but a condition precedent to lending the money
...
5K and tenant paid £600 in cash and
took out a mortgage from plaintiff for the remaining over 6 years
...
Mortgage contained a premium of £1
...
Mortgaged also contained a term that in the event
of default the entire sum was payable
Court would grant relief against a collateral advantage if it was unconscionable
...
Agreement linked mortgage’s interest rate with exchange rate
between pound sterling and swiss franc
...
For a term to destroy the mortgagor’s equity of redemption,
it would have to be oppressive and morally unfair

2) Statutory Protection
Financial Services and Markets Act 2000
Requires provider of a regulated mortgage contract to ensure that the consumer is
treated fairly and is not made subject to excessive or hidden charges
Consumer Credit Act 1974
Allows for any mortgage to be set aside or have the terms adjusted if it is found to be
an extortionate credit bargain within the meaning the Act
Unfair Terms in Consumer Contracts Regulations 1999
Reg 5: Term unfair it is causes a significant imbalance in the parties’ rights to the
borrower’s detriment

3) Restraint of Trade
Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd (1894)
Appellant was a Swedish gun manufacturer with a valuable world-wide business
...
He worked for rival business
Interference with a person’s freedom to trade may be struck down as against public
policy
Esso Petroleum v Harper’s Garage (1967)
Defendant ran two garages under solus agreements with plaintiffs who complained when
the defendants began to purchase petrol from cheaper alternative sources
Restraint of trade of 21 years was struck down as being excessive

Mortgagee’s Rights
s98 LPA 1925: Mortgagor is entitled to possession or receipts of rents until mortgagee
gives notice of his intention to take possession, mortgagor may sue for the possession
or recovery of rents or profits

1) Right to Possession
Right to exclude the world at large (unless terms of agreement state otherwise)

Four-Maids Ltd v Dudley Marshall (Properties) Ltd (1957)
Defendant charged his property worth £6,000 with contract terms provide that
principal sum would not be recalled earlier than a certain date if defendant paid
interest within 7 days when it was due
...
Mortgagor may then apply for a temporary relief
s36 Administration of Justice Act 1970 as amended by s8 AJA 1973: 3 requirements
for court to order for possession to be suspended/adjourned/postponed under s36(2)
AJA 1970
1) Mortgagee brought an action claiming possession
2) Must be a dwelling house
3) Realistic chance of repayment
Birmingham Citizens Permanent Building Society v Caunt (1962)
Mortgage loan’s payments were defaulted on and court considered whether it had
jurisdiction to refuse to order possession in favour of a legal mortgagee under
instalment mortgage under which by reason of default, the whole money had become
payable
Court has no power to delay possession proceedings except where the whole mortgage
sum becomes due and it can be shown that the whole sum will be paid by mortgagor
within 28 days
Cheltenham & Gloucester Building Society v Grant (1994)
District judge is to exercise his discretion informally on suspending possession, and
need not apply the rules of evidence rigidly
...
Mortgagee sold land with reference to the planning permission for the
35 houses but not the 100 flats
Mortgagee was liable to mortgagor as he is under duty to take reasonable care to
obtain true market value of the land
s105 LPA 1925: Proceeds of sale will be used to pay off cost and charges incurred by
sale, as well as to the satisfaction of principal debt, interests and costs in order to
discharge the mortgage
...
However, once
mortgagee seeks order for foreclosure, mortgagor may apply for a court order of
judicial sale)

Court orders for judicial sale applied by the mortgagor
s91(2) LPA 1925: Court may order a sale at the request of anyone interested
This order may be granted to the mortgagor if the value of the property is in positive
equity (Value of property is greater than debt owed)
When there is a substantial equity in the property but the mortgagor is unable to keep
up with mortgage repayments; mortgagor may be granted an order for sale
...
Claimant husband’s business became insolvent and payments on mortgage loan
ceased
...
It would be unjust and inequitable
not to order a sale
Cheltenham & Gloucester Plc v Krausz (1997)
Mortgagor defaulted on his mortgage loan payments

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