Term
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Definition
| A 'right' over your neighbour's land. e.g. a right of was, right of light, right to park... etc. |
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Term
| A 'profit a prendre' is a type of easement... what is it though? |
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Definition
| A right to take things from the soil of your neighbour's land (right to fish, right to dig etc.) |
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Term
| What must an easement be in order for it to be legal? |
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Definition
| It must be granted for a period equivalent to either an attached leasehold, or an attached freehold. |
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Term
| If someone gives you an easement and doesn't specify how long the easement is granted for, what do we assume about it's length? |
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Definition
| It is assumed to be granted for the length of time that you have your estate for (e.g. if you have a freehold, easement is granted for the length of your freehold... if you have a elasehold, easement is granted for the length of your leasehold). |
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Term
| Can easements include both positive and negative rights? (regative rights = right to PREVENT your neighbour from doing something... positive = right to do something on your neighbour's land) |
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Definition
| YES - it is possible to have both positive and negative easements. However, negative easements are RARE, you are more likely to use a restrictive covenant. (e.g. of negative = right to light... therefore preventing your neighbour from building a big fence) |
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Term
| If you gave your neighbour an easement for life, what would happen? |
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Definition
| It would only be an equitable easement, as the term is uncertain. |
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Term
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Definition
| A mortgage is a right granted over land by a borrower to a lender as security for the payment of a debt. |
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Term
| When a company gives a mortgage, what do they acquire? |
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Definition
| Technically, they acquire a lease over your land for 3000 years, which is terminable upon repayment. |
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Term
| What are 'rights of entry'? |
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Definition
Must be one of two types to be legal...
1) The right for a landlord to enter leasehold land to terminate a lease for breach of covenant
2) The right to enter freehold land to enforce a legal rentcharge |
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Term
| What are the requirements an interest in land must satisfy in order to be a legal interest? |
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Definition
1) Definitional - It must be an interest which is capable of existing as a legal interest (s1(2) LPA 1925)
2) It must have been created by deed (s52(1) LPA + s1 LP(MP)A)
3) Expressly granted interests must also be registered (s27(2) LRA) |
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Term
| What is the difference between an expressly granted interest and an impliedly granted interest? |
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Definition
Express = express... whereas implied = implied by conduct, law etc...
ONLY express interests need to be registerd |
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Term
| What are the different ways in which an existing legal interest may be transferred? |
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Definition
1) Assigned by way of s52(1) LPA (by deed) = legal interest
2) If deed fails, but meets requirement for contract s2LP(MP)A = equitable interest
3) If the owner of the interest conveys his estate (the land which benefits from the interest), and fails to mention the interest in the transfer deed, s62LPA will imply that the transfer of the estate includes all interests appertaining to that land, unless a contrary intention is expressed. (also applies to equitable interests) |
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Term
| What is a VITAL extra thing to remember when considering whether an easement is legal or equitable? |
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Definition
| Whether it is for a period in time equivalent to a freehold or leasehold. If not = not legal. |
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Term
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Definition
| All other interests in land not listed in s1(2) can only exist as equitable interests. |
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Term
| An interest in land which is not listed in s1(2) LPA = equitable interest. However, before they can be an equitable interest, what must they also be? |
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Definition
| They must be a recognised interest in land e.g. a licence is not an interest in land, therefore, it will not be an equitable interest in land. |
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Term
| What are the ways in which an equitable interest in land might arise? |
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Definition
1) If it is a recognised interest in land, but it is not listed in s1(2) LPA
2) If it is an interest listed in s1(2), BUT, it hasn't been created/transferred in the appropriate way
3) If the person who grants the interest only has an equitable interst in land (You cannot give what you don't have) |
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Term
| If someone tries to create a legal interest, but they fails to accurately follow the requirements for creating a legal itnerest, under what circumstances will it be recognised as an equitable interest? |
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Definition
| Where it was created/transferred with a document which complies with s2LP(MP)A |
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Term
| Can equitable interests be proprietary? |
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Definition
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Term
| Other than FAILED legal interests, what are the types of equitable interest you can have? |
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Definition
1) Restrictive covenants
2) Estate contracts (contracts to purchase, options to purchase, rights of premption)
3) Beneficial interest under a trust
4) Interests arising by estoppel |
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Term
| What do you call an interest which can only be equitable? |
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Definition
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Term
| What do you call an interest that COULD have been legal, but which has failed to meet the requirements for being legal? |
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Definition
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Term
| What are the different kinds of inherently equitable interests? |
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Definition
1) Restrictive covenants
2) Beneficial interest under a trust
3) Estate contracts
4) Interests arising by estoppel |
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Term
| What is a restrictive covenant? |
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Definition
| restrict the use of next doors land in a certain way |
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Term
| What is a beneficial interest under a trust? |
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Definition
| If you don't know this... you are thick!!! |
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Term
| What are the different types of estate contracts? (all inherently equitable interests - equity looks as done, that which ought to be done) |
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Definition
1) Contract to purchase
2) Options to purchase
3) Rights of pre-emption |
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Term
| What is a contract to purchase? |
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Definition
YOU KNOW THIS... it is where you have exchanged contracts, buyer then = equitable interest...
Equity will then order SP to of the contract, to pass the legal title to you. |
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Term
| What is an option to purchase? |
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Definition
| It is a right given by the owner of land to another person to purchase the land within a stated period of time. This option to purchase = equitable right which can be enforced against a new buyer of the land.... AN OPTION TO PURCHASE CAN BE EXERCISED AT ANY TIME... IF YOU HAVE AN OPTION, YOU CAN ELECT TO BUY AT ANY TIME |
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Term
| What is a right of pre-emption? |
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Definition
A right of first refusal... e.g. if A gives you a right of pre-emption... if A then puts their land up for sale, A HAS to give you the right of first refusal.
YOUR RIGHT TO EXERCISE YOUR RIGHT OF PRE-EMPTION IS CONTINGENT UPON THE GRANTOR OF THE RIGHT OFFERING THEIR LAND FOR SALE. |
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Term
| Types of legal interests which have failed and arise as equitable interests... |
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Definition
1) Equitable easement (because of length/period, or because of lack of deed or registration)
2) Equitable mortgage (because of lack of deed or registration)
3) Equitable leases (because only done by contract, or because of lack of deed or registration) |
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Term
| Are there any formalities for the creation of an equitable interest? |
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Definition
YES - it depends upon the interest, and how it came to arise...
1) Failed legal interests require a contract (s2 LP(MP)A) (excluding uncertain term easements)
2) Uncertain term easements & restrictive covenants must comply with s53(1)(a) (in writing & signed by person creating the interest, or his agent)
3)Equitable interest under a trust = s53(1)(b) LPA
4)Estate contracts = s2 LP(MP)A |
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Term
| What are the formalities that must be adhered to in order to make a failed legal interest an equitable interest? (NOTE: an uncertain term easement is not a FLI, instead it = inherently equitable interest) |
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Definition
| s2 LP(MP)A 1989 - must = valid contract |
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Term
| What are the formalities that must be adhered to to produce an 'equitable uncertain term easement' or a 'restrictive covenant' |
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Definition
| s53(1)(a)LPA - 'in writing and signed by the person creating/conveying the interest' |
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Term
| What are the formalities that must be adhered to to make a beneficial interest in land under a trust? |
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Definition
s53(1)(b) LPA - 'must be manifested and proved by some wiritng signed by some person who is able to declare such a trust' (evidence in writing does not need to be at the time of declaration)
NOTE - does not apply to constructive, resulting or implied trusts (see s53(2)LPA) |
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Term
| What are the formalities that must be adhered to to make an estate contract which produces an equitable interest? (option to buy, right of pre-emption, contract to purchase) |
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Definition
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Term
| What type of interest is an 'uncertain term easement'? |
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Definition
| It is an inherently equitable interest (NOT a failed legal interest... a certain term easement which isn't created by deed = failed legal interest = different formality requirements) |
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Term
| What are the formalities for creating an equitable interest under a resulting, contructive or implied trust? |
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Definition
| NONE - s53(2)... OBVIOUSLY!!! |
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Term
| What are the formalities for creating an equitable interest under proprietary estoppel? |
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Definition
| NONE - no formalities (tis a court judgement) |
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Term
| Why does it matter whether you have an equitable or legal interest? |
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Definition
| Because there are different rules of enforceability against new purchasers of the land. |
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Term
| What is the key thing to remember w.r.t enforceability of legal interests against new purchasers? |
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Definition
| Legal rights bind the world (remember, to be a legal interest, has to be registered... so it makes sense) |
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Term
| What is the key thing to remember w.r.t enforceability of equitable interests against new purchasers of unregistered land? |
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Definition
| Equitable interests are not binding on a bona fide purchaser for value of the legal estate without notice (the doctrine of notice).... therefore, a good faith buyer, who does not know about it = no enforceability of equitable interest |
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Term
| What are the three types of notice? (ways of giving notice) |
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Definition
1) Actual - have been told about
2) Constructive - should have known about
3) Imputed - if the buyer's agent knew or should have known of it |
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Term
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Definition
| Good faith purchaser of the land who bona fide did not know about the equitable interest = not bound by the equitable interest = equities darling. |
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Term
| Kingsnorth Finance v Tizard [1986] |
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Definition
CASE CONCERNING CONSTRUCTIVE NOTICE
C = husband who sold his house
C's wife lived in house, didn't consent to the sale, and had an interest in the house under an implied trust
D went to buy the house
D got his agent to survey the house
Surveyour did not not check w.r.t wife
D purchased house & wife refused to leave
HELD - as D's agent had constructive knowledge of the wife (e.g. should have known about her), D was deemed to have imputed notice... therefore, D was NOT equities darling. |
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Term
| What is the biggest drawback about equitable remedies? |
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Definition
They are discretionary... the court will decide whether to award them on the basis of different equitable maxims...
Clean hands, delay defeats equity |
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Term
| What are the minimum formalities that have to be complied with in order to transfer an equitable interest? |
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Definition
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Term
| If you are contracting to transfer an equitable interest, what must you do? |
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Definition
| You must produce a contract which is compliant with s2LP(MP)A - someone may decide to contract to transfer the interest because there are additional terms they want to have included in the agreement to transfer the interest |
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Term
| If you buy land from someone, and that land is benefittied from an equitable interest (or legal), but the person selling it to you doesn't tell you about it, and nor is it detailed in the transfer deed....will the interest be transferred to you? |
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Definition
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Term
| If you have a legal interest, what type of remedies will be available to you? |
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Definition
1) Legal remedies (damages)
2) Equitable remedies (though of course, equitable remedies are discretionary e.g. damages must be inadequate & equitable maxims) |
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Term
| If you have an equitable interest, what type of remedies will be available to you? |
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Definition
| Only equitable remedies... all of which are given at the court's descretion. |
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Term
| The legal remedy for breach = damages. However, w.r.t contracts for the sale of land... |
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Definition
| It has long been assumed that damages are not an adequate remedy for non-performance of a contract whose subject matter is land. (although, if you have a legal interest and you're denied an equitable remedy, you will ALWAYS be entitled to damages) |
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Term
| What are the 3 key types of equitable remedies that are useful for land? |
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Definition
1) Specific performance - equity sees as done, that which ought to be done... therefore = enforce a non-performed contract
2) An injunction - an order for someone either to put right a defect, or to refrain from committing a particular act
3) Rectification - the right to correct a written instrument which mistakenly fails to record the true agreement made. |
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Term
| What is 'specific performance'? |
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Definition
It is an equitable remedy. Enforces contractual obligations. Requires a party to a contract to carry out his contractual obligations...
Equity sees as done, that which ought to be done
(therefore e.g. if you have a contract for the sale of land (& therefore an equitable interest), in the eyes of equity, the land which is the subject matter of the contract already belongs to the buyer) |
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Term
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Definition
| It is an equitable remedy. An injunction is an order for someone either to put right a defect or to refrain from committing a particular act (e.g. if there is a restrictive covenant not to use house for running a business, neighbour can seek an injunction if their neighbour starts using their house for a business.) |
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Term
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Definition
| It is an equitable remedy. It allows the correction of a written instrument which mistakenly fails to record the true agreement made |
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Term
| What is the the primary need for distinguishing legal rights from equitable rights? |
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Definition
1) Remedies
2) Binding of new estate owners |
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